Waterman v. Cherokee County Jail et al

Filing 299

MEMORANDUM AND ORDER denying 245 Motion; Overruling 263 Objection to Order of Magistrate Judge; Denying 276 Motion for Preliminary Injunction; Denying 286 Motion for Order; Denying 287 Motion for Reconsideration; Denying 292 Motion for Order; Denying 298 Motion for Sanctions. Mailed to Pro Se Plaintiff by regular mail to Brian Michael Waterman Cherokee County Jail 915 E. Country Road Columbus, KS 66725. Signed by District Judge John W. Broomes on 8/10/2021. (sz)

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,
Plaintiff,
v.

Case No. 18-3092-JWB-KGG (Lead Case)
& No. 18-3135-JWB-KGG

MICHELLE TIPPIE, et al.,
Defendants.
MEMORANDUM AND ORDER
This matter comes before the court on Defendants’ motion for filing restrictions (Doc. 245)
and Plaintiff’s objection to order of the magistrate judge, (Doc. 263), motions for preliminary
injunctions, (Docs. 276, 286, 292), motion for reconsideration, (Doc. 287), and motion for
sanctions, (Doc. 298.) The motions, as briefed, are ripe for decision. (Docs. 247, 252, 267, 282,
289, 290, 291, 294, 295.) For the reasons stated herein, Defendants’ motion is DENIED, Plaintiff’s
motions are DENIED, and Plaintiff’s objection is OVERRULED.
I.

Procedural History
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.
II.

Analysis

1

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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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.”).
A.

Defendants’ Motion for Filing Restrictions (Doc. 245.)

Due to Plaintiff’s unabated filing, Defendants request that Plaintiff be restricted from
“filing any document that is not either a dispositive motion, a response to a dispositive motion, or
a notice of appeal” without having prior approval of the court. (Doc. 245 at 6.) In response,
Plaintiff rambles off a list of gripes against the Defendants and the magistrate judge. (Doc. 252.)
The court is sympathetic to Defendants’ qualms concerning the sheer volume of filings, but at this
stage in the proceedings the court does not find it necessary to impose filing restrictions on
Plaintiff.
“Federal courts have the inherent power to regulate the activities of abusive litigants by
imposing carefully tailored restrictions under appropriate circumstances.” Ysais v. Richardson,
603 F.3d 1175, 1180 (10th Cir. 2010). The court recognizes that the dockets for the above two
consolidated cases currently exceed more than 400 filings. These filings are often repetitious and
seem more akin to airing personal grievances than detailing any purposeful legal argument. (See

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Doc. 246 at 1.) However, the court determines that sanctions are not warranted at this time. This
case is winding down as discovery is closed and the final pretrial conference date is fast
approaching. Accordingly, Defendants’ motion is denied.
B.

Objection to Order of the Magistrate Judge (Doc. 263.)

The court finds Magistrate Judge Gale’s order (Doc. 248) is not clearly erroneous or
contrary to law and therefore denies Plaintiff’s objection (Doc. 263). Upon objection on a nondispositive 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-209DDC, 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).
Here, Plaintiff’s objection largely rehashes arguments that have continuously failed in his
journey to secure counsel. As noted in Defendant’s response, the magistrate judge’s order denied
Plaintiff’s thirteenth motion requesting counsel. (Doc. 267 at 2.) In denying Plaintiff’s repetitive
motion, the magistrate directed Plaintiff to refer to the court’s prior written orders detailing the
reasoning behind his denial. (Doc. 248.) Turning to the most recent order (Doc. 183) denying

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Plaintiff counsel, the magistrate judge cited the undersigned’s previous order for its reasoning.
There, this court stated:
[T]he 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.)
The court agrees with this reasoning. Plaintiff has not offered a new reason for why the
court should diverge from this sound reasoning. Accordingly, Plaintiff’s motion is denied.
C.

Motions for Preliminary Injunctions (Docs. 276, 286, 292.)

Plaintiff’s first motion seeks a transfer from the Cherokee County Jail and to have his kiosk
communications restored. (Doc. 276 at 5.) Second, Plaintiff again requests transfer from the
Cherokee County Jail due to being housed with black inmates. (Doc. 286 at 3.) Third, Plaintiff
seemingly threatens that if he is not removed from the Cherokee County Jail he will harm or kill
himself. (Doc. 292.) Based on the nature of the relief sought, the court construes these as motions
for preliminary injunctions.
Plaintiff has failed to establish any of the required factors for a preliminary injunction. The
court will only grant a preliminary injunction after the Plaintiff has shown: (1) a substantial
likelihood of success on the merits; (2) he will suffer irreparable harm in the absence of an
injunction; (3) his threatened injury outweighs the harm a preliminary injunction may cause the
opposing party; and (4) the injunction would not be adverse to the public interest. Beltronics USA,
Inc. v. Midwest Inventory Distrib., LLC, 562 F.3d 1067, 1070 (10th Cir. 2009). Further, there
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must be a relationship between the injury claimed in the motion and the conduct asserted in the
complaint. Little v. Jones, 607 F.3d 1245, 1251 (10th Cir. 2010). Courts are cautioned against
granting mandatory preliminary injunctions—those requiring affirmative action by the nonmoving
party—as they are “an unusual form of relief and one that must not be granted without heightened
consideration” of the four factors. RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1208 (10th Cir.
2009).
Plaintiff’s complaints in these motions are completely unrelated to the remaining claims
within the consolidated cases and cannot serve as proper grounds for granting a preliminary
injunction. Further, even after considering the substance of Plaintiff’s allegations in his first two
motions, the court finds Plaintiff has utterly failed to plead any facts showing irreparable harm in
the absence of an injunction. Awad v. Ziriax, 670 F.3d 1111, 1131 (10th Cir. 2012) (holding harm
is “irreparable” when monetary relief after a full trial would be inadequate.) Thus, Plaintiff’s
motions are denied.
D.

Motion for Reconsideration (Doc. 287.)

In this motion, Plaintiff seeks reconsideration of the court’s prior order dismissing
Defendants Danny Davis and Kristin Wagner from the proceedings. (Doc. 283.) Plaintiff argues
the order is “obviously a clear error of arbitrary, capricious, whimsical, and even manifest of
injustice, as well as retaliation” for filing judicial complaints on the magistrate and undersigned.
(Doc. 287 at 1.) However, Plaintiff fails to illustrate any reason for the court to reverse course
from its prior ruling.
“A motion to reconsider must be based on: (1) an intervening change in controlling law;
(2) the availability of new evidence, or (3) the need to correct clear error or prevent manifest
injustice.” D. Kan. Rule 7.3(b); see also Servants of Paraclete v. Does, 204 F.3d 1005, 1012 (10th

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Cir. 2000) (stating same three grounds for a Rule 59(e) motion to reconsider a non-dispositive
order). A motion for reconsideration is not appropriate to repeat arguments or advance arguments
that could have been raised previously. Servants of Paraclete, 204 F.3d at 1012.
Here, Plaintiff makes a misguided argument that the court erred by deviating from the facts
and saying Davis “was responsible to provide a medical diet. Instead the complaint clearly states
he served 1700 calories or less a day.” (Doc. 287 at 2.) Reviewing the court’s order reveals this
is nonsense. When discussing Davis, the term “medical diet” never even appears. (See Doc. 283
at 12-13.) Turning to Wagner, Plaintiff again asserts the undersigned fabricated the record due to
an earlier order not granting the Plaintiff leave to supplement his claims and “out of retaliation for
filing judicial complaints.” (Doc. 283 at 3-4.) Plaintiff’s unfounded accusations are of no legal
merit.

Rather, this is another example of Plaintiff lashing out upon not getting his way.

Accordingly, the court denies Plaintiff’s motion to reconsider.
E.

Motion for Sanctions (Doc. 298.)

Plaintiff “requests $2,500 in compensation from the Defendants for their constant
harassment, obstruction.” (Doc. 298.) The court has the “inherent power to impose a variety of
sanctions to regulate its docket, promote judicial efficiency and deter frivolous filings.” Resolution
Tr. Corp. v. Dabney, 73 F.3d 262, 267 (10th Cir. 1995) (citing Chambers v. NASCO, Inc., 501
U.S. 32, 50 (1991)). Here, the court finds no reason to sanction the Defendants based upon
Plaintiff’s allegations. Sanctions are an extreme remedy and Plaintiff has not shown that the facts
warrant such a severe response. Accordingly, Plaintiff’s motion for sanctions is denied.
III.

Conclusion
Defendants’ motion for sanctions (Doc. 245) is DENIED. Plaintiff’s objection to the order

of the magistrate (Doc. 263) is OVERRULED. Plaintiff’s motions for preliminary injunctions

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(Docs. 276, 286, 292), motion for reconsideration (Doc. 287), and motion for sanctions (Doc. 298)
are DENIED.
IT IS SO ORDERED this 10th day of August, 2021.

__s/ John W. Broomes_____________
JOHN W. BROOMES
UNITED STATES DISTRICT JUDGE

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