Waterman v. Cherokee County Jail et al

Filing 159

MEMORANDUM AND ORDER denying 148 Motion for Evidentiary Hearing. Signed by Magistrate Judge Kenneth G. Gale on 10/16/2020. Mailed to pro se party Brian Waterman by regular mail. (This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (df)

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 FOR EVIDENTIARY HEARING
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 for Evidentiary Hearing (Doc. 148). For the reasons set forth
below, the motion is DENIED.
The background of this case has been summarized in the undersigned
Magistrate Judge’s prior Orders on Plaintiff’s numerous motions in this case as
well as by the District Court. (See e.g., Docs. 99, 113, 123, 137, 157, 158.) Those
factual summaries are incorporated by reference.
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In the present motion, Plaintiff asks for an evidentiary hearing “on evidence
stolen, by the defendants 6 DVDs of video and audio footage on 10-18-2018 thru
12-14-2018 in order to stop a civil prosecution in several counts against them.”
(Doc. 148, at 1.) The Court notes that it recently denied Plaintiff’s request to
amend is Complaint to include a count relating to these same DVDs. (Doc. 158.)
In that underlying motion, Plaintiff sought leave to add “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 Defendants Kristen Wagner and Danny Davis in order “to
stop Count’s [sic] III and V.” (Doc. 140, at 1.)
The Court noted the motion to amend was noncompliant with D. Kan. Rule
15.1(a)(2) because no proposed amended pleading was attached. (Doc. 144, at 1.)
Rather than deny Plaintiff’s motion on this technical basis, however, the Court
denied the motion on substantive merits as futile. The Court incorporates by
reference its analysis from the prior Order as to the futility of adding a cause of
action relating to these six DVDs. (Doc. 158, at 3-6.)
In short, the Court agreed with Defendants’ argument 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.’” (Id., at 4
(quoting Doc. 144, at 2).) The Court also agreed with Defendants that “‘[t]he
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DVD claim has nothing to do with these Defendants’” and “‘Plaintiff’s motion
does not identify who he alleges actually stole the DVDs.’” (Id.)
Defendants contended 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 continued that Plaintiff “is attempting to add unrelated claims related
to 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.) This Court agreed. (Doc. 158, at 5-6.)
Defendants further established that Plaintiff has previously filed two such
lawsuits. (Doc. 158, at 6 (quoting Doc. 140, at 5).) The Court agreed with
Defendants that “‘Plaintiff is trying in this case to litigate claims that he is having
difficulty litigating in other cases.’” (Id.) The Court finds that the same is true as
to Plaintiff’s request for an evidentiary hearing regarding the same DVDs.
Because the Court has previously found that legal claims relating to these
DVDs are unrelated to the present litigation, frivolous, and futile, the Court sees no
basis to allow an evidentiary hearing regarding these DVDs to proceed in this case.
Plaintiff’s motion (Doc. 148) is, therefore, DENIED.
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IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 16th day of October, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

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