Waterman v. Cherokee County Jail et al
MEMORANDUM AND ORDER denying 119 Motion to Compel; overruling 164 Objection to Order of Magistrate Judge; overruling 187 Objection to Order of Magistrate Judge. Signed by District Judge John W. Broomes on 1/7/2021. Mailed to pro se party Brian Michael Waterman to Cherokee County Jail by regular mail. (sz)
Case 5:18-cv-03092-JWB-KGG Document 209 Filed 01/07/21 Page 1 of 5
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
BRIAN MICHAEL WATERMAN,
Case No. 18-3092-JWB-KGG (Lead Case)
& No. 18-3135-JWB-KGG
DAVID GROVES, et al.,
MEMORANDUM AND ORDER
This matter comes before the court on Plaintiff’s motion to compel (Doc. 119) and two
objections to the magistrate judge’s orders (Docs. 164 and 187). These motions have been fully
briefed and are ripe for decision. (Docs. 128, 167, 193, 203.) For the reasons stated herein,
Plaintiff’s motions are DENIED.
These two cases were filed by Plaintiff, pro se, in 2018 and later consolidated for judicial
efficiency.1 The complaints are brought under 42 U.S.C. § 1983 alleging various constitutional
violations by persons connected with the Cherokee County Jail (the “Jail”), in which Plaintiff has
been confined pending a criminal trial. Plaintiff filed a motion to compel asking the court to
compel the Jail “to provide the law library search engine back on the housing unit kiosk.” (Doc.
119.) Additionally, Plaintiff has objected to two of the magistrate judge’s orders. In the first
objection, Plaintiff asserts the magistrate judge erred in denying his motion to amend to add six
The court dismissed some of the claims in both No. 18-3092 and No. 18-3135 before consolidating the remaining
claims in both cases and designating No. 18-3092 as the lead case moving forward. See No. 18-3092, Doc. 63, and
No. 18-3135, Doc. 150.
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new defendants—Michelle Tippie, Jullian Miller, April Macafee, Thomas Degroot, Mandi
Montanye, and Consolidated Correctional Food Services—to Count III (unconstitutional dietary
policy) of his complaint. (Doc. 164.) Plaintiff next objects to the magistrate judge’s denial of his
request for appointment of a special master over his case. (Doc. 187.)
Because Plaintiff is proceeding pro se, the court is to liberally construe his filings. United
States v. Pinson, 585 F.3d 972, 975 (10th Cir. 2009). However, liberally construing filings does
not mean supplying additional factual allegations or constructing a legal theory on Plaintiff’s
behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). Additionally, the court
is “mindful of the primary management role of prison officials who should be free from second
guessing or micro-management by the federal courts.” Estate of DiMarco v. Wyoming Dept. of
Corr., 473 F.3d 1334, 1342 (10th Cir. 2007); see also Overton v. Bazzetta, 539 U.S. 126, 132
(2003) (“We must accord substantial deference to the professional judgment of prison
administrators, who bear a significant responsibility for defining the legitimate goals of a
corrections system and for determining the most appropriate means to accomplish them.”).
Motion to Compel (Doc. 119.)
From the outset, Defendants urge the court to construe Plaintiff’s motion as a request for a
preliminary injunction. (See generally Doc. 128.) However, Plaintiff has failed to allege any
injury that is related to a claim within the complaint. Little v. Jones, 607 F.3d 1245, 1251 (10th
Cir. 2010). Rather, Plaintiff contends that he does not have access to the law library search engine,
to which the Jail provides access through a kiosk system. Plaintiff filed this motion seeking an
order from this court requiring the Jail to provide him that access. Reviewing the exhibit filed by
Defendants, Plaintiff’s claim is undercut by the fact that he acknowledged he has access to the law
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library in a message to Captain Tippie. (Doc. 128-2.) Accordingly, Plaintiff’s motion is denied
Objection to Magistrate Judge’s Orders (Docs. 164 and 187.)
The court finds Magistrate Judge Gale has not issued any order (Doc. 157 and 183) that is
clearly erroneous or contrary to law and therefore denies Plaintiff’s objections (Doc. 164 and 187.)
Upon objection on a non-dispositive matter, the district judge must “modify or set aside any part
of the order that is clearly erroneous or is contrary to law.” Fed. R. Civ. P. 72(a). “Under this
clearly erroneous standard, the district court does not conduct a de novo review of the factual
findings; instead, it must affirm a magistrate judge’s order unless a review of the entire evidence
leaves it ‘with the definite and firm conviction that a mistake has been committed.’” United States
v. Kaeckell, No. 19-mc-209-DDC, 2019 WL 6486744, at *1 (D. Kan. Dec. 3, 2019) (quotation
omitted). The “contrary to law” standard, by contrast, permits the district court to independently
review purely legal determinations made by the magistrate judge, and to modify or set them aside
if the order “fails to apply or misapplies relevant statutes, case law or rules of procedure.” Id.
(quotation omitted). “When the magistrate judge ruling effectively removes a defense or claim
from the case, however, several courts have found it to be dispositive and subject to de novo
review.” In re Motor Fuel Temperature Sales Practices Litig., 261 F.R.D. 577, 578-79 (D. Kan.
2009) (quotations omitted). A denial to amend on futility grounds is considered dispositive. Id.
Turning to Magistrate Judge Gale’s first order (Doc. 157), the court notes Plaintiff objects
only to the portion barring him—with prejudice—from adding new parties to Count III of his
complaint. (Doc. 164.) Plaintiff’s attempt to add six new defendants for “ongoing constitutional
violations” fails to allege any new constitutional violation and is futile. (Doc. 121, at 1.) In their
original response, Defendants explain that:
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Plaintiff claims that the new proposed defendants falsely told Plaintiff that they
had seen him purging, and further, failed to provide him medical care for the
purging (even though Plaintiff denies purging). In short, Plaintiff is trying to
add new defendants to Count III to sue them for making up a medical condition
about him and failing to provide medical care for that made up condition. Those
allegations fail to state a claim for a constitutional violation, would be subject
to dismissal, and therefore, are futile.
(Doc. 130, at 3.) The court agrees with this reasoning. Plaintiff’s motion to supplement is void of
facts demonstrating how the proposed new defendants contributed to injuries arising out of Count
III. Similarly, Plaintiff’s objection is lacking in detail and contains nothing besides conclusory
statements. Thus, Plaintiff’s first objection is overruled as futile.
In his second objection (Doc. 187), Plaintiff asks the court to appoint a special master.
Generally, special masters are used 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 of the traditional role of judicial officers.” Ash Grove Cement Co. v. Wausau
Ins. Co., No. 05-2339-JWL-GLR, 2007 WL 689576, at *3 (D. Kan. Mar. 1, 2007). Appointment
of a special master is addressed under Federal Rule of Civil Procedure 53:
Unless 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
(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)(1). Neither of the circumstances under Rule 53(a)(1)(A) or (B) applies here.
Plaintiff, as 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).
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The magistrate judge did not find Plaintiff’s arguments for a special master compelling as
he “failed to establish that a special master would be necessary in this case.” (Doc. 183 at 9.) The
magistrate judge concluded, and this court agrees, that the pretrial matters at issue in Plaintiff’s
motion can be effectively and timely addressed by the assigned judges. Plaintiff has shown no
error with respect to the magistrate judge’s ruling. Indeed, Plaintiff’s objection (Doc. 187)
contains nothing more than his continued gripes concerning his legal mail and interactions with
jailhouse staff. Without Plaintiff alleging an issue requiring the appointment of a special master,
the court will not overrule the magistrate judge. Accordingly, Plaintiff’s second objection is
Plaintiff’s motion to compel (Doc. 119) is DENIED. Plaintiff’s objections to the magistrate
judge’s orders (Docs. 164 and 187) are OVERRULED.
IT IS SO ORDERED this 7th day of January, 2021.
__s/ John W. Broomes ______________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE
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