Waterman v. Cherokee County Jail et al

Filing 158

MEMORANDUM AND ORDER denying 140 Motion to Amend Complaint. Signed by Magistrate Judge Kenneth G. Gale on 10/13/2020. Mailed to pro se party Brian Waterman by regular mail. (df)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

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Plaintiff,
vs.
DAVID GROVES, et al.,
Defendants.

Case No. 18-3092-JWB-KGG

MEMORANDUM & ORDER
DENYING MOTION TO AMEND
Plaintiff, who is a prisoner in the Sedgwick County Jail, brings this civil
rights action pro se against certain Defendants associated with the Cherokee
County Jail, where he was previously incarcerated. This Order addresses
Plaintiff’s Motion to Seek Leave to Amend Complaint (Doc. 140). For the reasons
set forth below, the motion is DENIED.
A.

Background.
These two consolidated cases were filed by Plaintiff, pro se, in 2018 and

consolidated in October of that year. The Complaints allege violations by persons
connected with the Cherokee County Jail, in which Plaintiff was confined pending
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a criminal trial. Since filing, the cases have meandered through four District
Judges and two Magistrate Judges on a never-ending series of motions; some, but
not all, initiated by Plaintiff.
Plaintiff has been diligent and aggressive in attempting to prosecute these
cases. A series of motions to dismiss and motions for summary judgment have
been briefed and decided, narrowing the issues and reducing the responding
defendants. Plaintiff has made repeated motions for appointment of counsel, all of
which have been denied. He has also attempted to use this court to control present
conditions and complaints at the jail. These attempts have been unsuccessful.
Plaintiff has expressed increased frustration in not receiving evidence from the
defense to support his cases. He has also moved to recuse the undersigned
Magistrate Judge, which was also denied.
B.

Motion at Issue.
Plaintiff seeks leave of the Court to file an Amended Complaint to include

“a count for stealing evidence 6 DVDs of previous subpoenaed video footage jail
and audio in 2018” and to add a “count for opening [his] outgoing civil legal mail
and stealing two addresses” for named, but unserved, Defendants Kristen Wagnor
and Danny Davis in order “to stop Count’s [sic] III and V.” (Doc. 140, at 1.)
Plaintiff’s motion contains no legal argument as to why the amendment should be
allowed. (See generally, id.)
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Defendants first argue that the motion is not in compliance with D. Kan.
Rule 15.1(a)(2) because no proposed amended pleading was attached. (Doc. 144,
at 1.) Local Rule 15.1 mandates that the motion to amend “must” attach the
proposed pleading. D. Kan. Rule. 15.1(a)(2). The Court notes, however, that
Plaintiff’s motion included a request that the Court send him a form Amended
Complaint to enable him to draft the pleading. The Court also notes that, in
conjunction with its Order on Plaintiff’s Motion to Supplement Pleadings (Doc.
121), Plaintiff has since been provided with copies of the appropriate form
pleading. Rather than deny Plaintiff’s motion on this technical basis, the Court
will address Plaintiff’s motion on the substantive merits.
In this regard, Defendant argues that Plaintiff’s motion should be denied as
futile because he is not in compliance with the requirements of the Prison
Litigation Reform Act (“PLRA”). (Doc. 144, at 2-5.) Pursuant to the PLRA, “the
court shall dismiss the case at any time of the court determines that … the action or
appeal … is frivolous or malicious; … fails to state a claim on which relief may be
granted; or … seeks monetary damages against a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2). The PLRA also includes a “three strikes”
provision, which states that a prisoner may not bring a civil action or appeal in
forma pauperis
if the prisoner has, on 3 or more prior occasions, while
incarcerated or detained in any facility, brought an action
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or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious,
or fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious
physical injury.
28 U.S.C. § 1915(g). Defendants argue that the proposed amendments are
frivolous and that by seeking to bootstrap them to the present lawsuit, Plaintiff is
attempting to dodge the three-strikes provision.
The District of Kansas decision of Carter v. Spirit Aerosystems, Inc., held
that “[w]ithout a copy of the proposed pleading, the Court cannot conclusively
determine if allowing [the plaintiff] to amend his complaint would promote justice
or be entirely futile.” 16-1350-EFM-GEB, 2017 WL 4865690, at *4 (D. Kan. Oct.
27, 2017). The Court notes that the Carter decision found that while the omission
of a proposed Amended Complaint “limits the Court’s ability to do a thorough
analysis,” the Court was still “receptive” to the defendant’s futility argument. Id.
The Court agrees that Plaintiff has “fail[ed] to adequately explain why his
proposed amendment is necessary or even explain the basic facts surrounding his
proposed amended claims.” (Doc. 144, at 2.) Further, Defendants are correct that
“[t]he DVD claim has nothing to do with these Defendants” and “Plaintiff’s
motion does not identify who he alleges actually stole the DVDs.” (Id.) In other
words, “Plaintiff wants to add a claim related to stolen DVDs where he has failed
to explain in the motion who stole the DVDs, when they were stolen, how they
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were stolen, or how they relate to this case.” (Id., at 3.) Plaintiff’s proposed claim
regarding his mail is equally frivolous as he “does not identify what mail was
allegedly opened, how much mail was opened, when it was opened, or who the
alleged perpetrators are.” (Id.)
Defendants are correct that the proposed amendment does not comply with
the PLRA. The PLRA was enacted “to reduce the burden of prisoner litigation on
the courts” and government officials in responding to frivolous prisoner lawsuits.
Freeman v. Watkins, 479 F.3d 1257, 1259 (10th Cir. 2007). See also Robbins v.
Chronister, 402 F.3d 1047, 1051 (10th Cir. 2005) (holding that “the unmistakable
purpose of the [PLRA] was to limit the rapidly increasing number of frivolous
prisoner claims arising from alleged prison related civil rights violations.”); Jones
v. Corrections Corp. of America, No. 10-3167-JTM, 2012 WL 3238190,
at *3 (D. Kan. Aug. 6, 2012) (holding that “[t]he congressional purpose behind the
PLRA is to reduce the state’s burden of responding to frivolous actions or of
deterring frivolous prisoner litigation.”).
Defendants contend that “[t]he allegedly stolen DVDs were part of the
discovery file in Plaintiff’s criminal case, and Plaintiff has previously asserted in
this litigation that the alleged theft happened when his ‘case file was illegally given
to Cherokee County Prosecutors.’” (Doc. 144, at 4-5 (citing Doc. 134).)
Defendants continue that Plaintiff “is attempting to add unrelated claims related to
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new parties” that do not belong in the present lawsuit, “in order to avoid the
requirements of the PLRA.” (Id., at 5.) Rather, according to Defendants, “the
proper avenue for relief is a separate lawsuit against the Cherokee County
prosecutors.” (Id.)
Defendants further note that Plaintiff has previously filed two such lawsuits.
In Case No. 19-CV-3093, Plaintiff has sued both his
former criminal defense attorney and the Cherokee
County prosecutor for the transfer of his criminal case
file to the prosecution. (See Exhibit A). Judge Crow
dismissed that case on August 6, 2019. (See Exhibit C,
Order Dismissing Case No. 19-CV-3093). On November
20, 2019, Plaintiff filed another lawsuit against his
former criminal defense attorney and the Cherokee
County prosecutor in Case No. 19-CV-3237. (See
Exhibit B). That lawsuit also arises out of the alleged
transfer of his criminal case file to the prosecution, and
does not appear to have yet advance passed the initial
screening phase of the litigation. (See Exhibit D, Docket
Sheet for Case No. 19-CV-3237). Notably, the second
lawsuit names Michelle Tippie, a defendant in this case,
as a defendant. And so, as relates to both the underlying
facts and the parties involved, that case significantly
overlaps with Plaintiff’s proposed amendment in this
case. Now, Plaintiff is trying to bring a claim arising out
of those same facts in this case, which would frustrate the
purposes of the PLRA and create a risk of inconsistent
rulings regarding the same set of facts.
(Id.) Defendants argue that “Plaintiff is trying in this case to litigate claims that he
is having difficulty litigating in other cases.” (Id.) The Court agrees.

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Plaintiff did not file a reply brief, thus he has made no attempt to refute
Defendants’ responsive arguments. The Court thus finds that Plaintiff’s Motion to
Amend (Doc. 140) should be DENIED as futile.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Seek Leave to
Amend Complaint (Doc. 140) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 13th day of October, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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