Coffman v. Hutchinson Community College

Filing 97

MEMORANDUM AND ORDER granting 75 Defendants' Motion to Stay Discovery; denying 86 Plaintiff's Motion for Discovery; denying 87 Plaintiff's Motion for Hearing; denying 89 Plaintiff's Motion for Attorney Fees; denying 90 Plaintiff's Motion for Order. See order for details. Signed by Magistrate Judge Gwynne E. Birzer on 2/21/18. Mailed to pro se party Dustin D. Coffman by regular mail. (adc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DUSTIN D. COFFMAN,

)
)
Plaintiff,
)
)
v.
)
)
HUTCHINSON COMMUNITY COLLEGE, )
et al.,
)
)
Defendants.
)
)

Case No. 17-4070-SAC-GEB

MEMORANDUM AND ORDER
This matter is before the Court on Defendants’ Motion to Stay Discovery (ECF No.
75). On February 9, 2018, the Court conducted an in-person hearing to discuss the pending
motion. Plaintiff Dustin D. Coffman appeared in person. All Defendants appeared jointly
through counsel, Allen G. Glendenning, Carole K. DeWald, and Adam Michael Teel. After
consideration of both the arguments of the parties and counsel, and the parties’ briefing,
the Court GRANTED Defendants’ motion at hearing. The previously-announced ruling
of the Court is now memorialized below.
In addition, the Court considers the following motions filed by Plaintiff since the
hearing: 1) Plaintiff’s Motion for Discovery (ECF No. 86); 2) Plaintiff’s Motion for
Hearing (ECF No. 87); 3) Plaintiff’s Motion for Attorney Fees (ECF No. 89); and 4)
Plaintiff’s Motion to “accept ECF # 7 petition as FACTS and Findings of law, A.D.R. 16.3
alternative resolution” (ECF No. 90). For the reasons set forth below, Plaintiff’s motions
are DENIED.

I.

Background
An in-depth discussion of the factual and procedural background of this case was

included in previous orders and will not be repeated. Generally speaking, Plaintiff filed
this case, acting pro se, against Hutchinson Community College (“HCC”), claiming the
school and its named instructors and administrators violated his constitutional rights by
dismissing him from HCC’s nursing program.
Since filing his case on August 7, 2017, a plethora of motions have been presented
ad nauseum for the Court’s consideration. In the undersigned U.S. Magistrate Judge’s
Memorandum and Order of September 9, 2017, Plaintiff’s request for counsel and six other
motions were denied (ECF No. 23). On October 3, 2017, the undersigned considered three
more of Plaintiff’s motions for various forms of relief, all of which were denied (Order,
ECF No. 34). In addition to the motions decided by the Magistrate Judge, the District
Judge denied Plaintiff’s early motion for summary judgment (Order, ECF No. 19), and
granted in part and denied in part HCC’s motion to dismiss (Order, ECF No. 28). The most
recent orders by the undersigned granted HCC’s motion to quash subpoenas improperly
issued by Plaintiff (Order, ECF No. 62), and denied Plaintiff’s motion to compel
information from those subpoenas (ECF No. 67). In the December 11, 2017 Order, this
Court reminded Plaintiff that his attempts to discover information are premature, and
instructed him to refrain from filing any additional documents until the case is set for
scheduling (ECF No. 67).

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II.

Defendants’ Motion to Stay Discovery (ECF No. 75)
Currently pending before the Court is a second motion to dismiss Plaintiff’s claims

in their entirety (Motion, ECF No. 70). All defendants join in this motion, seeking
dismissal on a number of bases. They argue Plaintiff fails to state a viable claim of First
Amendment violations, due process violations, Equal Protection violations, or breach of
contract. They also contend there exists no Kansas Civil Rights Act or Kansas Victim
Protection Act, on which he bases two of his claims. Even if an individual instructor or
administrator at HCC committed a constitutional tort, Defendants argue HCC would not
be liable, because respondeat superior does not apply to constitutional violations.
Defendants claim all individual defendants, if sued in their individual capacities, are
entitled to a qualified immunity defense as state officials. Alternatively, Defendants argue
if Plaintiff sues individuals in their official capacities only, his claims are duplicative of
the official claim against HCC.
Defendants now ask the Court to stay discovery until their motion to dismiss has
been decided. They contend that, if the case is not dismissed in full, a decision on the
motion is likely to significantly narrow the causes of actions, some of the defendants, and
the scope of the case. This would also reduce the amount of time and money spent on
discovery.
Plaintiff asks the Court to move ahead with a scheduling conference and discovery.
He argues this case has already been delayed long enough. The Court considers the
arguments of the parties against the legal backdrop of their arguments.

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A.

Legal Standard

A decision on whether to stay litigation is within the Court’s inherent power to
control its docket and rests in its sound discretion.1 The Court may exercise that power in
the interest of economy of time and effort for itself and for counsel and parties appearing
before it.2 When discharging its discretion, the Court “must weigh competing interests and
maintain an even balance.”3 The Tenth Circuit has cautioned, “[t]he right to proceed in
court should not be denied except under the most extreme circumstances.”4
Recognizing this overarching right to proceed, the general policy of the District of
Kansas is to continue with discovery during the pendency of dispositive motions. 5
However, there are recognized exceptions to this rule.

One such “well-established

exception” applies where a defendant seeks dismissal based on absolute or qualified
immunity.6

1

See Accountable Health Sols., LLC v. Wellness Corp. Sols., LLC, No. 16-2494-DDC-TJJ, 2016
WL 4761839, at *1 (D. Kan. Sept. 13, 2016); Universal Premium Acceptance Corp. v. Oxford
Bank & Trust, No. 02–2448–KHV, 2002 WL 31898217, at *1 (D. Kan. Dec. 10, 2002) (citing Pet
Milk Co. v. Ritter, 323 F.2d 586, 588 (10th Cir. 1963)).
2
Universal Premium Acceptance Corp., 2002 WL 31898217, at *1 (citing Landis v. N. Am. Co.,
299 U.S. 248, 255 (1936)).
3
Pipeline Prods., Inc. v. Horsepower Entm't, No. 15-4890-KHV-KGS, 2016 WL 1448483, at *1
(D. Kan. Apr. 13, 2016) (citing Landis, 299 U.S. at 255).
4
Kendall State Bank v. Fleming, No. 12-2134-JWL-DJW, 2012 WL 3143866, at *2 (D. Kan. Aug.
1, 2012) (citing Commodity Futures Trading Comm'n v. Chilcott Portfolio Mgmt., Inc., 713 F.2d
1477, 1484 (10th Cir.1983)).
5
Accountable Health Sols., 2016 WL 4761839, at *1 (citing Wolf v. United States, 157 F.R.D.
494, 495 (D. Kan. 1994)).
6
Id.; see also Fattaey v. Kansas State Univ., No. 15-9314-JAR-KGG, 2016 WL 3743104, at *1
(D. Kan. July 13, 2016) (citing Kutilek v. Gannon, 132 F.R.D. 296, 298 (D. Kan. 1990).
4

“Generally, a defendant is entitled to have questions of immunity resolved before
being required to engage in discovery and other pretrial proceedings.” 7 “One of the
purposes of immunity . . . is to spare a defendant not only unwarranted liability, but
unwarranted demands customarily imposed upon those defending a long drawn out
lawsuit.”8 “The Supreme Court has made it clear that until the threshold question of
immunity is resolved, discovery should not be allowed.”9
Even when immunity is not at issue, the court considers whether any of the
following three exceptions apply to make a stay of discovery appropriate:
1) where the case is likely to be finally concluded by the ruling on the pending
dispositive motion;
2) where the facts sought through uncompleted discovery would not affect the
resolution of the motion; or
3) where discovery on all issues of the broad complaint would be wasteful and
burdensome.10
The party seeking stay “must make a clear case of hardship or inequity in being required
to go forward, if there is even a fair possibility that the stay for which he prays will work
damage to someone else.”11

7

Pfuetze v. State of Kansas, No. 10-1139-CM-GLR, 2010 WL 3718836, at *1 (D. Kan. Sept. 14,
2010) (citing Siegert v. Gilley, 500 U.S. 226, 232 (1991)).
8
Id. (quoting Siegert, 500 U.S. at 232).
9
Id. (quoting Siegert, 500 U.S. at 232; also citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
10
Accountable Health Sols., 2016 WL 4761839, at *1; Randle v. Hopson, No. 12-2497-KHVDJW, 2013 WL 120145, at *1 (D. Kan. Jan. 9, 2013).
11
Landis, 299 U.S. at 255; see Accountable Health Sols., 2016 WL 4761839, at *1 (citing Cargill
Meat Sols. Corp. v. Premium Beef Feeders, LLC, No. 13-1168-EFM-TJJ, 2015 WL 3937395, at
*1 (D. Kan. June 26, 2015)).
5

B.

Analysis

The five individual defendants have together asserted a qualified immunity defense
to any individual claims against them.

Therefore, the qualified immunity defense

exception would apply to spare their costs in defending this suit until after the immunity
issue is decided.
Although HCC does not assert an immunity defense, even if qualified immunity
were not an issue, this is a case where a stay of discovery is appropriate. It does not appear
discovery is necessary for the Court to decide Defendants’ motion to dismiss. Also, a
ruling on the motion to dismiss will either dismiss the case entirely, or would surely narrow
Plaintiff’s extensive filings to more defined claims. Therefore, moving forward with
discovery on all the issues in Plaintiff’s broad Complaint and later-filed Supplement could
be wasteful and burdensome to the parties.
Though not necessarily an enumerated factor, Plaintiff has already demonstrated a
tendency toward excessive and frivolous filings—most recently despite the Court’s
specific order to refrain from doing so. Considering his numerous previous motions, the
recently-filed motions addressed below, and his attempts at early discovery—if the Court
were to permit discovery to proceed, both Defendants and the Court would likely be
burdened by discovery disputes.

C.

Conclusion

For these reasons, the Court GRANTS Defendants’ Motion to Stay Discovery
(ECF No. 75) pending a decision on the Second Motion to Dismiss (ECF No. 70). In the

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event the dispositive motion is denied in any part, the undersigned Magistrate Judge will
promptly set this case for a scheduling conference.

III.

Plaintiff’s Motions to Compel Discovery and Scheduling (ECF Nos. 86, 87)
During the February 9 hearing, the undersigned Magistrate Judge carefully

explained to Plaintiff the process by which the Court sets a lawsuit for scheduling, and how
a motion to stay can affect that process. After orally granting Defendants’ motion for stay,
the Court specifically instructed Plaintiff to refrain from filing any new motions seeking
discovery until after the motion to dismiss has been decided.
In direct contravention of these instructions, immediately following the hearing,
Plaintiff filed a motion seeking to compel discovery (ECF No. 86) and a motion requesting
“full Rule 26 schedule hearing for discovery and possible ADR” settlement hearing (ECF
No. 87). To the extent Plaintiff’s motions were intended to be responsive to Defendant’s
motion to stay, his motions are DENIED AS MOOT. No new arguments or changes in
law have been presented which would cause the Court to reconsider its ruling on stay;12
therefore, to the extent Plaintiff seeks reconsideration of the Court’s decision, his request
for reconsideration is DENIED.

12

See Madrigal v. Ingredient Rest., No. 12-4164-JTM, 2013 WL 162089, at *1 (D. Kan. Jan. 15,
2013) (citing D. Kan. Rule 7.3(b)) (denying plaintiff’s motion to reconsider for failure to “argue
an intervening change in controlling law or the need to correct clear error or prevent manifest
injustice” and for failure to produce new evidence).
7

IV.

Plaintiff’s Motion for Attorney’s Fees (ECF No. 89)
Also filed on February 9 was Plaintiff’s motion seeking attorney’s fees. He seeks

attorney’s fees both as reimbursement and as a sanction to Defendants for their failure to
disclose information to Plaintiff. First, the Court declines to issue any sanction, because
Defendants have not yet been subject to formal discovery. In fact, the Court has repeatedly
prohibited Plaintiff from seeking discovery; therefore, Defendants’ failure to provide
information is justified. To the extent Plaintiff seeks attorney’s fees as a sanction for
Defendants’ failure to participate in discovery, his motion is DENIED.
Additionally, Plaintiff has represented himself pro se throughout this action. At no
time has any attorney entered an appearance, nor attempted to enter an appearance,13 on
his behalf. Pro se litigants are not attorneys, and are generally not entitled to recover
attorney fees for successful litigation.14

Even if Plaintiff were to present authority

otherwise, any finding regarding attorney’s fees is premature because this matter remains
pending. To the extent Plaintiff seeks reimbursement for attorney’s fees as a prevailing
party, his request (ECF No. 89) is DENIED without prejudice to refiling at the conclusion
of this case.

13

Plaintiff argued during the February 9 hearing that he consulted an attorney in the State of
Missouri, and that individual attempted to enter an appearance in this Court. Plaintiff claims the
attorney’s pro hac vice application was denied by this Court. However, the docket reflects no
attempt by any attorney to enter an appearance on Plaintiff’s behalf.
14
See, e.g., Robertson v. Biby, No. 17-3068, 2017 WL 6397738, at *2 (10th Cir. Dec. 15, 2017)
(noting “a pro se litigant is not eligible for a § 1988 fee award”) (citing Turman v. Tuttle, 711 F.2d
148 (10th Cir. 1983) (finding because an inmate represented himself in a 42 U.S.C. § 1983 action,
he was not entitled to receive attorney fees)).
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V.

Plaintiff’s Motion to Accept ECF #7 as Fact (ECF No. 90)
Plaintiff’s one-sentence request is difficult to decipher. It appears he seeks two

forms of relief: 1) he asks the Court to accept the supplement to his Complaint, ECF No.
7, as facts and findings of law; and 2) he asks the Court to set this case for alternative
dispute resolution under D. Kan. Rule 16.3.
The Court first addresses his request that the Court accept his Supplemental
pleading, ECF No. 7. Senior District Judge Sam A. Crow reviewed the Supplement, and
as a part of the September 22, 2017 Order on Defendants’ first motion to dismiss (ECF No.
28), directed the Defendants to consider the Supplement as part of Plaintiff’s Complaint.
Defendants have now addressed the allegations contained in the Supplement in their
pending Second Motion to Dismiss, and the allegations contained in the Supplement are
now before the Court on that motion. Therefore, this Court declines to make any separate
and premature findings regarding that pleading.
Regarding the issue of court-ordered ADR, Plaintiff has previously asked the Court
to order the parties to engage in mediation or other alternative dispute resolution process
under D. Kan. Rule 16.3 (see Motions Nos. 4, 31, 33; Orders, ECF Nos. 23, 34). For the
reasons explained in those orders, Plaintiff’s motion is DENIED as moot.

VI.

FILING RESTRICTIONS / SANCTIONS
The Court has repeatedly explained to Plaintiff, in both written opinions and during

the in-person hearing on February 9, the process by which a case is set for scheduling. The
Court has also directed Plaintiff, on multiple occasions, to the resources available to pro se

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plaintiffs. Despite these clear instructions, Plaintiff has chosen to ignore the Court’s
directives and continued to file meritless motions which inappropriately tax the Court’s
resources.
“The right of access to the courts is neither absolute nor unconditional and there is
no constitutional right of access to the courts to prosecute an action that is frivolous or
malicious.”15 In this vein, there is no right of access to continue to pursue motions which
the Court has previously decided. “The goal of fairly dispensing justice is compromised
when the court is forced to devote limited resources to processing repetitious and frivolous”
requests.16
The Court has specifically admonished Plaintiff to refrain from filing motions
regarding scheduling and discovery. This case is now stayed pending the resolution of
Defendants’ Second Motion to Dismiss (ECF No. 70). The only matter presently before
this Court is the briefing associated with the Motion to Dismiss. Any other filings by
Plaintiff, prior to resolution of the Motion to Dismiss, may subject him to monetary
or other sanctions under Fed. R. Civ. P. 11(c)(3) or 37, and a recommendation to the
District Court of filing restrictions.

15

Salem v. Kansas, No. 15-2209-CM, 2015 WL 1886707, at *6 (D. Kan. Apr. 24, 2015) (citing
Sieverding v. Colo. Bar Ass’n, 469 F.3d 1340, 1343 (10th Cir. 2006) (quoting Tripati v. Beaman,
878 F.2d 351, 353 (10th Cir. 1989)).
16
Id. (citing In re Sindram, 498 U.S. 177, 180 (1991)).
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VII.

Conclusion
For the reasons set forth above, IT IS THEREFORE ORDERED that Defendants’

Motion to Stay Discovery (ECF No. 75) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff’s recent motions (ECF Nos. 86, 87,
89, 90) are DENIED.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 21st day of February 2018.

s/ GWYNNE E. BIRZER
GWYNNE E. BIRZER
United States Magistrate Judge

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