Waterman v. Board of Commissioners of Columbus, Kansas et al

Filing 90

MEMORANDUM AND ORDER denying 89 Motion for examination of envelopes by expert; denying, without prejudice, 89 Motion to Appoint Counsel. Signed by Magistrate Judge Kenneth G. Gale on 2/7/19. Mailed to pro se party Brian Michael Waterman by regular mail. (df)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN MICHAEL WATERMAN,

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Plaintiff,
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v.
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BOARD OF COMM’RS OF
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COLUMBUS, KANAS,
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Defendant. )
_______________________________)

Case No.: 18-3135-CM-KGG

MEMORANDUM & ORDER
Now before the Court is Plaintiff’s “Motion to Have Envelopes Examined
by an Expert and Counsel Appointed to Represent Plaintiff” (Doc. 89). As
discussed below, Plaintiff’s motion is DENIED without prejudice.
The Court notes that Plaintiff has filed three prior motions requesting
counsel (Docs. 12, 46, 59) all of which have been denied without prejudice (Docs.
14, 48, 82). In the most recent of these, Plaintiff requested counsel in order to
protect him from the actions of Captain Michelle Tippie (Doc. 59), similar to his
request in the present motion. Plaintiff also indicated that he needed counsel in
order to retain an expert on the issue of the standard of care. (Id.)
The Honorable Magistrate Judge Teresa James denied the most recent
motion, without prejudice, finding that Plaintiff’s newly stated reason did not

justify the appointment of counsel. (Doc. 82.) Magistrate Judge James indicated
the Court would “revisit Plaintiff’s request for appointment of counsel if his case
survives summary dismissal after Defendants have had an opportunity to respond
to Plaintiff’s claims.” (Id.)
In the context of Plaintiff’s most recent request for counsel (Doc. 89), the
Court again finds no justification for appointing counsel at this time. The motion
is again DENIED without prejudice, to be revisited if Plaintiff survives summary
dismissal.
The Court also denies Plaintiff’s request to have an expert appointed to
inspect his mail. The Court may exercise its own discretion to appoint an expert
witness as authorized by one or more of the following rules: Fed.R.Civ.P. 56
(relating to motions for summary judgment), Fed.R.Evid. 706(a) (regarding courtappointed expert witnesses), and D. Kan. Rule 26.4(a) (regarding court-appointed
experts). As the Court understands Fed.R.Evid. 706(a) and D. Kan. Rule 26.4, the
Rules “create appropriate procedures, if it finds that expert testimony by one or
more appointed witnesses would be appropriate and helpful to decide the case.”
Cox v. Ann, No. 12-2678-KHV-GLR, 2014 WL 1011679, at *3 (D. Kan. March
14, 2014).
“The Court can readily note that parties in civil litigation seldom involve
these two rules for appointment of expert witnesses.” Id. Further, “federal law

generally does not authorize the Court to appoint an expert witness to testify on
behalf of an indigent Plaintiff in a civil case.” Id. “Unless the Court determines
otherwise, however, any such appointment would be for the benefit of the Court,
the trier of fact, and all parties, and not simply for the benefit of the Plaintiff or as a
substitute for a retained expert witness under Fed. R. Civ. P. 26(a)(2).” Cox v.
Ann, No. 12-2678-DDC-GLF, 2014 WL 6474210, at *5 (Nov. 19, 2014). As such,
the Court DENIES Plaintiff’s request to have his mail examined by an expert
witness.

IT IS THEREFORE ORDERED that Plaintiff’s “Motion to Have
Envelopes Examined by an Expert and Counsel Appointed to Represent Plaintiff”
(Doc. 89) is DENIED as more fully set forth above.
IT IS SO ORDERED.
Dated this 7th day of February, 2019, at Wichita, Kansas.
S/ KENNETH G. GALE

HON. KENNETH G. GALE
U.S. MAGISTRATE JUDGE