Waterman v. Cherokee County Jail et al

Filing 183

MEMORANDUM AND ORDER denying 171 Motion to Stay Case; denying 178 Motion to Appoint Counsel; denying 179 Motion to Appoint Special Master. Signed by Magistrate Judge Kenneth G. Gale on 11/25/2020. Mailed to pro se party Brian Michael Waterman by regular mail. (df)

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

)
)
)
)
)
)
)
)
)
)

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

Case No. 18-3092-JWB-KGG

MEMORANDUM & ORDER DENYING MOTIONS
TO STAY ALL PROCEEDINGS, REQUESTING INDIGENT COUNSEL,
AND REQUESTING A SPECIAL MASTER
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, and is again currently, incarcerated. This
Order addresses Plaintiff’s most recent Motion to Stay All Proceedings (Doc. 171),
most recent Motion for Indigent Counsel (Doc. 178), and Motion to Appoint
Special Master (Doc. 179). For the reasons set forth below, the motions are
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
1

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 2 of 10

well as by the District Court. (See e.g., Docs. 99, 113, 123, 137, 157, 158.) Those
factual summaries are incorporated by reference.
A.

Motion to Stay Proceedings.
The decision to stay litigation is left to the discretion of the trial court

Clinton v. Jones, 520 U.S. 681, 706 (1997); see also Bushnell Inc. v. The Burton
Co., No. 09-2009, 2010 WL 11561389, at *1 (D. Kan. Jan. 11, 2010) (finding that
“the district court ... has, within its ‘inherent power’ to control the docket, the
discretion to stay proceedings pending before it if, after weighing the competing
interests, the circumstances of a particular case lean in favor of a stay.”).
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. In discharging its discretion,
the Court must ‘weigh competing interests and maintain
an even balance.’ The party requesting the stay ‘must
make out 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.’ The Tenth Circuit Court of Appeals has
cautioned that ‘the right to proceed in court should not be
denied except under the most extreme circumstances,’
relying in part on a U.S. Supreme Court decision
announcing, ‘[o]nly in rare circumstances will a litigant
in one cause be compelled to stand aside while a litigant
in another settles the rule of law that will define the rights
of both.’
Id. (internal citations omitted). In application of the above enumerated factors,
courts must decide whether the benefits of a stay are outweighed by the inherent

2

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 3 of 10

costs of staying the litigation. Digital Ally, Inc. v. Enforcement Video, LLC, 162346-JTM, 2018 WL 780555, *1 (D. Kan. Feb. 8, 2018).
The Court notes that Plaintiff has moved to stay this matter on numerous
occasions. (Docs. 9, 13, 65, 81.) The Court also notes that Plaintiff has a poor
history of honoring the previous stay order that was entered in this case as he
persisted in filing pleadings in violation of the stay he requested. (See Doc. 99, at
5.)
Plaintiff again seeks to stay all proceedings “until the lawless Defendants
give all work product, discovery, case law, original complaints, blank issued
amended complaints back to Plaintiff.” (Doc. 171, at 1.) Plaintiff states he was
sent to segregation on October 20, 2020, and was later released on November 5,
2020. (Id.) He contends he was informed that all of his “civil legal work, work
product, civil case law, civil complaints, motions, discovery, responses from
defendants and courts would remain in the jail administration[’] custody” and that
he could “only view this material now in the visitation room” with nothing to be
removed. (Id.)
Plaintiff continues that that Defendants are “deliberately stopping [him]
from amending [his] complaint on Kristin Wagner and Danny Davis” by seizing
the amended Complaint form previously sent to him by the Court. (Id., at 1, 2.)
He argues that he should not be required to “litigate under such impossible
3

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 4 of 10

circumstances.” (Id., at 1.) He complains that he “cannot adequately or
sufficiently respond back” to the pending Motions to Dismiss Wagner and Davis
without his “case law, work product, original complaint” and that all of his work
product “is not in administration.” (Id., at 2.)
Defendant Wagner responds that in her position, she “neither has control
over the placement of plaintiff in segregation nor control over plaintiff’s case
materials.” (Doc. 177, at 4.) Defendant continues that despite Plaintiff’s
complaints of interference and obstruction, Plaintiff “has filed a response and
surreply to Wagner’s motion to dismiss and served document requests on
Wagner.” (Doc. 177, at 4.) The Court notes that Plaintiff has also filed a response
and surreply to Davis’ dispositive motion. (Docs. 161, 172.)
Defendant Wagner also argues that Plaintiff’s contention that Defendants are
attempting to stop him from amending his Complaint as to Wagner and Davis is
misplaced because “the Court has denied plaintiff leave to amend or supplement
his pleading.” (Doc. 177, at 4.) The Court did specifically deny Plaintiff’s attempt
to amend the 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

4

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 5 of 10

then unserved, Defendants Kristen Wagner and Danny Davis in order “to stop
Count’s [sic] III and V.”1 (Doc. 140, at 1; Doc. 158.)
That stated, Plaintiff also filed a motion to supplement his pleadings wherein
he asked to add six new Defendants and to include facts relating to these
Defendants’ statements that Plaintiff allegedly had been purging his meals to meet
the BMI standard for a special diet. (Doc. 121, at 1.) The Court denied that
motion on the technical basis that no proposed amended pleading was attached to
the motion. (See Doc. 157, at 3-4.) The Court continued that “[s]hould Plaintiff
intend to renew this motion, the Court is including in this mailing a copy of the
form for an Amended Complaint, which must be included with any renewed
motion to supplement the pleadings.”2 (Id., at 4.) As such, this portion of
Plaintiff’s prior motions to amend has not been foreclosed.
In their response, Defendants Ellis, Phillips, DeGroot, and Tippie (“the
County Defendants”) concede that Plaintiff was placed in segregation “due to a
myriad of rule violations,” which they have documented. (Doc. 182, at 1-2.) The
County Defendants indicate that “[w]hen Plaintiff was moved to segregation, his

1

Defendants Wagner and Davis have since been served and have both filed Motions to
Dismiss. (Docs. 153, 155.)
2
The Court did, however, deny with prejudice any request to amend the pleadings to
include proposed claims against the newly identified Defendants. Plaintiff was
specifically instructed that any newly proposed Amended Complaint should contain only
allegations against the parties currently remaining in this lawsuit, rather than attempt to
add additional new parties to these claims. (Doc. 157, at 4.)
5

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 6 of 10

boxes of documents were moved to the property room, so that, while housed in
administrative segregation, Plaintiff could access the documents during his hour
breaks from administrative segregation.” (Id., at 2.) The County Defendants
continue that
[w]hen his administrative segregation ended, and
Plaintiff was set to return to general population, Captain
Tippie instructed jail staff to move his two boxes into an
inmate visitation room rather than returning the boxes to
Plaintiff’s cell. [ ] This decision was based on the fact
that Plaintiff shared a cell with another prisoner, and
further, that the two large boxes, which are full of papers,
were a fire hazard in the jail cell. [ ] The visitation room
is a private, secure area where the documents are not
disturbed, and Plaintiff is allowed to review his
documents and work on his cases as he pleases.
Since his return to general population following
segregation, Plaintiff has been informed that he is free to
review or work on his legal work where it is stored in the
visitation room. [ ] But Plaintiff has never asked to do
so; instead, he has filed several grievances, and now,
filed this motion.
(Id.)
On balance, the Court finds that Plaintiff has failed to establish that a stay is
warranted. Digital Ally, Inc. v. Enforcement Video, LLC, 2018 WL 780555, *1.
The County Defendants have established a legitimate reason why Plaintiff’s
materials are not being kept in his cell. They have also established that Plaintiff is
being provided ample opportunity to access his materials, but he has simply chosen
not to do so. The Court further notes that given the most recent flurry of motions
6

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 7 of 10

and filings by Plaintiff, his ability to litigate this case does not appear to be unduly
obstructed. Plaintiff’s motion (Doc. 171) is, therefore, DENIED.3
B.

Motion for Indigent Counsel (Doc. 178).
Plaintiff has filed at least eight motions requesting counsel in this case,

including one motion to reconsider a denial of a request for counsel as well as an
objection to a denial. (See Docs. 32, 44, 86, 89, 91, 104, 120, 178.) All of these
motions have been denied.
As the District Court noted in its recent Order denying Plaintiff’s objection
to the undersigned Magistrate Judge’s denial of a prior request for counsel,
the merits of the plaintiff’s claims center around factual
issues that the Plaintiff can investigate – especially since
the discovery phase of litigation has begun. McCarthy
[v. Weinberg, 753 F.2d 836, 838-39 (10th Cir. 1985)].
Furthermore, one need only look to the consolidated case
record to recognize Plaintiff is more than capable of
drafting and filing legal documents with the court. There
is no constitutional right to counsel in a civil case, see
Beaudry [v. Corr. Corp. of Am., 331 F.3d 1164, 1169
(10th Cir. 2003)], and the mere possibility that an
attorney might present this case more effectively than
Plaintiff can do so representing himself pro se does not
warrant appointment of counsel.
(Doc. 113, at 4.)

3

Out of an abundance of caution, the Court instructs the Clerk’s Office to provide three
additional copies of the (amended) Complaint form to Plaintiff with the mailing of this
Memorandum & Order.
7

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 8 of 10

There is nothing in Plaintiff’s most recent motion that convinces the
undersigned Magistrate Judge to diverge from the District Court’s sound analysis.
Plaintiff’s motion is, therefore, DENIED.
C.

Motion to Appoint Special Master (Doc. 179).
Plaintiff next moves the Court to appoint a special master
to investigate and report the Defendants[’] abusive
litigation tactics, obstruction of justice, disrupting
litigation, harassing the Plaintiff, fraud upon the courts,
altering submitted evidence, opening the Plaintiff’s legal
mail (out-going) to the District Courts, taking the law
library away for two years in the middle of pleadings,
seizing all the plaintiff’s civil work, … all discovery,
work product, case law, throwing away Plaintiff’s mail,
and deliberately delaying Plaintiff’s incoming civil legal
mail.

(Doc. 179, at 1.)
“The appointment of a special master is reserved for exceptional
circumstances” and the decision to appoint one is within the discretion of the trial
court. Rx Savings, LLC v. Besch, 19-2439-DDC, 2020 WL 5094686, at * (D.
Kan. Aug. 28, 2020) (citations omitted). A special master is intended to “aid
judges in the performance of specific judicial duties, as they may arise in the
progress of a cause, and not to displace the court.” Id. (citing Center for Legal
Advocacy v. Bicha, No. 11-CV-02285-NYW, 2018 WL 6620776, at *2 (D. Colo.
Dec. 18, 2018) (citation omitted)).
The Federal Rules of Civil Procedure provide that:
8

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 9 of 10

[u]nless a statute provides otherwise, a court may appoint
a master only to:
(A) perform duties consented to by the parties;
(B) hold trial proceedings and make or recommend
findings of fact on issues to be decided without a jury if
appointment is warranted by:
(i) some exceptional condition; or
(ii) the need to perform an accounting or resolve a
difficult computation of damages; or
(C) address pretrial and posttrial matters that cannot be
effectively and timely addressed by an available district
judge or magistrate judge of the district.
Fed.R.Civ.P. 53(a). The appointment of a special master is typically reserved for
“situations that have some inherent complexity, technical issues that call for
someone with a specific expertise, or even to pursue some policing or investigation
outside the traditional role of judicial officers.” Ash Grove Cement Co. v. Wausau
Ins. Co., No. 05-2339-JWLGLR, 2007 WL 689576, at *3 (D. Kan. Mar. 1, 2007).
In order to establish the need for a special master, the moving party “bears the
burden of showing the necessity of such an appointment.” In re Wyoming Tight
Sands Antitrust Cases, 715 F. Supp. 307, 307-8 (D. Kan. 1989).
Plaintiff has failed to establish that a special master would be necessary in
this case. There is nothing at issue in Plaintiff’s motion that constitutes an
exceptional condition, that requires special expertise, or that cannot be effectively
and timely addressed by an available district judge or magistrate judge.
9

Case 5:18-cv-03092-JWB-KGG Document 183 Filed 11/25/20 Page 10 of 10

Fed.R.Civ.P. 53(a). The fact that Plaintiff does not agree with the Court’s rulings
on various issues he has presented does not warrant the appointment of a special
master. Plaintiff’s motion (Doc. 179) is, therefore, DENIED.

IT IS THEREFORE ORDERED that Plaintiff’s Motion to Stay All
Proceedings (Doc. 171) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Indigent Counsel
(Doc. 178) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s Motion to Appoint a Special
Master (Doc. 179) is DENIED.
IT IS SO ORDERED.
Dated at Wichita, Kansas, on this 25th day of November, 2020.
S/ KENNETH G. GALE

KENNETH G. GALE
United States Magistrate Judge

10