Pemberton v. Leavenworth County Jail et al

Filing 67

SECOND AMENDED SCHEDULING ORDER and ORDER denying 61 Plaintiff's Motion for Appointment of a Special Master or Counsel. Discovery deadline 3/3/2023. Proposed Pretrial Order due 3/15/2023. Final Pretrial Conference set for 3/23/2023 at 11:00 AM by telephone before Magistrate Judge Teresa J. James. Participants must dial 1-888-363-4749 and enter ACCESS CODE 4901386 to join the conference. Dispositive motion deadline 4/17/2023. Jury Trial set for 12/5 /2023 at 09:00 AM in KC Courtroom (Unknown) before District Judge Toby Crouse. In addition, the parties' respective deadlines for responding to 57 Plaintiff's Motion for Summary Judgment and 59 Defendant's Motion to Dismiss or Deny Plaintiff's Motion for Summary Judgment are extended to 2/21/2023. Signed by Magistrate Judge Teresa J. James on 1/19/2023. Order mailed to pro se Plaintiff Pemberton by regular mail. (byk)

Case 5:21-cv-03152-TC-TJJ Document 67 Filed 01/19/23 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
PHILLIP PEMBERTON,
Plaintiff,
CIVIL ACTION
v.
Case No. 21-3152-TC-TJJ
MELISSA WARDROP,
Defendant.
SECOND AMENDED SCHEDULING ORDER and
ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF
A SPECIAL MASTER OR COUNSEL
This matter comes before the Court on Plaintiff’s motion requesting an order staying or
continuing any case deadlines for at least the next 30 days, appointing a special master, and
appointing counsel (ECF No. 61). Defendant has filed a response (ECF No. 66) stating she will
abide by whatever decision the Court enters regarding Plaintiff’s motion to stay, but asks if the
case is stayed that she be afforded an extension to respond to the substance and merits of
Plaintiff’s pending Motion for Summary Judgment. Defendant states that she opposes Plaintiff’s
request for the appointment of counsel. The Court will address each of Plaintiff’s requests
separately below.
1.

Request for 30-Day Stay or Continuance of Case Deadlines

On November 17, 2022, the District Judge adopted the Report and Recommendation
(ECF No. 52) finding Plaintiff had shown cause why his case should not be dismissed for lack of
prosecution and denied Defendant’s motion to dismiss without prejudice. The following day, on
November 18, 2022, the Court granted Plaintiff’s pending motion for extension of case deadlines
(ECF No. 44) and entered an Amended Scheduling Order (ECF No. 53) setting a January 31,

Case 5:21-cv-03152-TC-TJJ Document 67 Filed 01/19/23 Page 2 of 6

2023 deadline to complete discovery; February 8, 2023 deadline for submitting the proposed
pretrial order; February 16, 2023 at 1:30pm telephone pretrial conference; and March 17, 2023
deadline for filing dispositive motions.
In his motion filed on January 3, 2023, Plaintiff requests that the Court enter an order
staying or continuing any case deadlines for at least the next 30 days. He provides his new
address and indicates he is now residing at an inpatient rehabilitation facility located in Shawnee,
Kansas. He also requests copies of any court filings if there have been any updates since
December 14, 2022.
Based upon the information in his motion, the Court finds Plaintiff has shown good cause
for extending the case deadlines by 30 days.1 Plaintiff’s recent changes to his residence and
mailing address justify the requested extension of all the Scheduling Order deadlines by 30 days.
Plaintiff recently notified the Court that he will be reporting to Mirror, Inc. - Shawnee
Residential and Outpatient Facility, Shawnee, Kansas, upon on or about January 13, 2023. The
Court therefore grants Plaintiff’s motion requesting a 30-day continuance of the case deadlines.
In addition, the parties’ respective deadlines for responding to Plaintiff’s Motion for Summary
Judgment (ECF No. 57) and Defendant’s Motion to Dismiss or Deny Plaintiff’s Motion for
Summary Judgment (ECF No. 59) are extended to February 21, 2023. The Court further enters
a Second Amended Scheduling Order, extending the case deadlines as summarized in the table
that follows:

1

Such extensions will be sufficient to address Plaintiff’s scheduling concerns. To the extent
Plaintiff is seeking a “stay” of any pretrial proceedings and discovery, the Court finds he has not shown
good cause for a stay and therefore that request is denied.

Case 5:21-cv-03152-TC-TJJ Document 67 Filed 01/19/23 Page 3 of 6

PEMBERTON v. WARDROP
21-cv-3152-TC-TJJ
SUMMARY OF SECOND AMENDED DEADLINES AND SETTINGS
Event
All discovery completed
Proposed pretrial order due
Pretrial conference before Judge James – by telephone CONFERENCE LINE 1-888-363-4749 and enter
ACCESS CODE 4901386
All other potentially dispositive motions (e.g., summary
judgment)
Motions challenging admissibility of expert testimony
Jury trial in Kansas City, KS before District Judge Toby
Crouse - ETT 3 days.

Amended Deadline/Setting
March 3, 2023
March 15, 2023
March 23, 2023 at 11:00 AM
April 17, 2023
42 days before trial
December 5, 2023 at 9:00 am

To the extent that this Second Amended Scheduling Order is inconsistent with the prior
Scheduling Orders (ECF Nos. 32 and 53), this Second Amended Scheduling Order supersedes
the earlier ones. To the extent that this Second Amended Scheduling Order does not address
dates, deadlines, or requirements included in the earlier Scheduling Orders, those earlier dates,
deadlines, and requirements remain in effect. The parties are advised to review, in particular, the
various requirements governing discovery, motions, submission of the pretrial order, and the
pretrial conference in the earlier Scheduling Orders. Those requirements—other than the dates
that are changed, as identified below—remain in place.
This Second Amended Scheduling Order will not be modified except by leave of Court
upon a showing of good cause.

Case 5:21-cv-03152-TC-TJJ Document 67 Filed 01/19/23 Page 4 of 6

2.

Request for Appointment of a Special Master

Plaintiff also requests a special master be appointed to make sure Defendant does not
“continue to withhold evidence” especially pertaining to his requests for medication and his
grievances for not getting treatment by Defendant, who was the gate keeper.
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.”2 The scope of appointment of
a special master is addressed by Federal Rule of Civil Procedure 53(a)(1), which provides:
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
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.3
The party requesting the appointment of a special master “bears the burden of showing the
necessity of such an appointment.”4
Plaintiff has not shown that either of the circumstances under Rule 53(a)(1)(A) or (B)
applies here. Nor has Plaintiff established that a special master would be necessary in this case to
address pretrial matters that cannot be effectively and timely handled by this Court. Plaintiff’s

2

Waterman v. Groves, No. 18-3092-JWB-KGG, 2021 WL 63307, at *2 (D. Kan. Jan. 7, 2021)
(citing Ash Grove Cement Co. v. Wausau Ins. Co., No. 05-2339-JWL-GLR, 2007 WL 689576, at *3 (D.
Kan. Mar. 1, 2007)).
3
4

Fed. R. Civ. P. 53(a)(1).

Waterman, 2021 WL 63307, at *2 (quoting In re Wyoming Tight Sands Antitrust Cases, 715 F.
Supp. 307, 307-8 (D. Kan. 1989)).

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request for the appointment of a special master is denied.
3.

Request for Appointment of Counsel

Plaintiff also requests the Court appoint him an attorney to help with the litigation
process or to keep the case moving. The Court has denied Plaintiff’s six prior requests for
appointment of counsel.5 As the Court has repeatedly ruled, Plaintiff, as a party who has
commenced a civil action seeking monetary damages, has no right to the appointment of counsel
to prosecute his case.6 Furthermore, the appointment of counsel in a civil case is very rare
because Congress has not provided any mechanism or funding to compensate counsel appointed
in civil cases.7 Therefore, the Court would have to find an attorney willing to be appointed and
provide his or her legal services pro bono (without payment). The Court therefore must make
thoughtful and prudent use of its appointment power.
In his motion, Plaintiff indicates he has been released to a rehabilitation center and
provided his new address. Plaintiff’s change of residence or movement from one facility to
another is not sufficient reason for the Court to appoint an attorney for Plaintiff. Nothing else
has changed from his previously articulated reasons for why the Court should appoint an attorney
to represent him. The appointment of counsel is still not warranted.
IT IS THEREFORE ORDERED that Plaintiff’s motion requesting a 30-day continuance

5

See Orders (ECF Nos. 7, 9, 19, 25, 36, and 54).

6

Lee v. Crouse, 284 F. Supp. 541, 543-44 (D. Kan. 1967) (“There is no absolute right to
appointment of counsel in either habeas corpus or civil rights actions.”).
7

See Castner v. Colo. Springs Cablevision, 979 F2d 1417, 1420 (10th Cir. 1992) (“Congress has
not provided any mechanism for compensating [] appointed counsel. Thoughtful and prudent use of the
appointment power is necessary so that willing counsel may be located without the need to make coercive
appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste a
precious resource and may discourage attorneys from donating their time.”).

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of the case deadlines is granted as set forth herein.
IT IS FURTHER ORDERED that Plaintiff’s motion requesting the appointment of a
special master is denied.
IT IS FURTHER ORDERED that Plaintiff’s motion requesting the appointment of
counsel is denied.
A copy of this Order will be mailed to Plaintiff at the following address: 6221 Richards
Dr., Shawnee, KS 66216.
IT IS SO ORDERED.
Dated January 19, 2023, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge