Anderson v. Bush et al

Filing 23

ORDER granting 12 Defendants' Motion for More Definite Statement. Amended Complaint due by 3/24/2017. See Order for additional information. Signed by Magistrate Judge Gwynne E. Birzer on 2/23/17. Mailed to pro se party Dewayne Antoine Anderson by regular mail. (sj)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DEWAYNE ANTOINE ANDERSON,
Plaintiff,
v.
THOMAS BUSH, et al.,
Defendants.

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Case No. 16-1376-JTM-GEB

ORDER
This matter is before the Court on Defendants’ Motion for More Definite
Statement (ECF No. 12). On February 22, 2017, the Court conducted an in-person
hearing to discuss the pending motion.1 Plaintiff Dewayne Antoine Anderson appeared
on his own behalf. Defendants Naomi Arnold, Trindad Balderas, and Chief Gordon
Ramsay2 (“City Defendants”) appeared through counsel, Erik S. Houghton. Defendant
Thomas Bush was not a movant in the motion for more definite statement and did not
appear. After review of Mr. Anderson’s pleadings, the City Defendants’ motion (ECF
No. 12), and considering the oral arguments of all parties, the Court issues the following
orders.

1

Also pending before Chief District Judge J. Thomas Marten is defendant Thomas Bush’s
Motion to Dismiss (ECF No. 19). That motion was neither a subject of the February 22, 2017
hearing nor a subject of this Order.
2
Although this defendant was named in the Complaint (ECF No. 1) as “Chief Ramsey” (first
name unknown), the identity of the defendant was clarified in the motion (ECF No. 12) as
Gordon Ramsay, Chief of the Wichita Police Department.

1.

Defendants’ Motion for More Definite Statement (ECF No. 12)
Although Mr. Anderson did not file a written response to the City Defendants’

motion, during the February 22 hearing, he described his confusion regarding the
multiple pleadings filed in the case and his belief he would be able to present his
arguments orally at the hearing. When asked by the Court to articulate his claims and the
facts supporting them, Mr. Anderson described his claims against the City Defendants,
and the Court is satisfied his oral response to the motion was adequate. After allowing
the City Defendants the opportunity to reply at hearing, the Court GRANTS the motion
for more definite statement (ECF No. 12) and ORDERS Mr. Anderson to amend his
Complaint, as described below.

2.

Dismissal of Defendant Gordon Ramsay
During the discussion of his claims, Mr. Anderson admitted he does not intend to

pursue an action against Chief Gordon Ramsay; rather, he intends to name the police
chief acting at the time of the 2014 incident which precipitated his claims. Finding Mr.
Anderson has no objection to the dismissal of Chief Ramsay from this case, counsel for
the City Defendants is ORDERED to draft an agreed notice reflecting the same, and
submit it to Mr. Anderson for signature. Mr. Anderson is reminded it is incumbent upon
him to respond to any communications from either the Court or opposing parties, and he
should confer and cooperate with counsel to achieve the dismissal of Chief Ramsay.

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3.

Plaintiff’s Oral Request to Amend His Complaint
During the recitation of his claims at hearing, Mr. Anderson revealed he plans to

amend his Complaint to add additional defendants and/or clarify his claims.

After

consideration of the statements of all parties present at hearing, the Court finds no
prejudice to Defendants by allowing amendment at this stage of the case, particularly in
light of the City Defendants’ request for a more definite statement.
Mr. Anderson is encouraged to review the materials available to self-represented
litigants at http://www.ksd.uscourts.gov/self-representation/ in the preparation of his
amended complaint. He must thoroughly articulate his legal and factual claims against
each individual he names as a defendant. Additionally, although Mr. Anderson proceeds
in forma pauperis and the clerk of the court will serve any newly-named defendants with
a copy of the amended complaint,3 it remains Mr. Anderson’s responsibility to provide
accurate address information for each named defendant.

4.

Appointment of Counsel
Upon the initial filing of this case, Mr. Anderson requested he be appointed an

attorney to represent him (see Motion to Appoint Counsel, ECF No. 4). Because there is
no right to counsel in a civil action, the Court evaluated Mr. Anderson’s request under the
factors discussed by the Tenth Circuit Court of Appeals in Castner v. Colorado Springs
Cablevision,4 including: 1) his ability to afford counsel, 2) his diligence in searching for

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See 28 U.S.C. § 1915(d) and Fed. R. Civ. P. 4(c)(3).
979 F.2d 1417, 1420-21 (10th Cir. 1992).

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counsel, 3) the merits of his case, and 4) his capacity to prepare and present the case
without the aid of counsel.
The Court denied Mr. Anderson’s request on two bases: 1) he failed to show
diligence in searching for counsel; and 2) the Court was unable to fully evaluate the
merits of Mr. Anderson’s claims given the information presented in the Complaint.
(Order, ECF No. 6.)

The Court denied the motion for counsel without prejudice to

reviewing a similar request at a later time. (Id.)
Because the Court has now had the opportunity to hear from Mr. Anderson in
person, “its perception of the merits and other factors relevant to the issue of
appointment”5 have changed, and the Court questions whether he is able to adequately
present the case on his own.

Therefore, if Mr. Anderson would like the Court to

reconsider his request for appointment of an attorney, he must submit a new Motion for
Appointment of Counsel and Declaration of Good Faith Efforts to Obtain Counsel, using
the form available from the clerk’s office. Mr. Anderson is reminded that his failure to
fully complete the motion and demonstrate his efforts to secure counsel on his own could
result in denial of any future request.

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Jones v. Maritz Research Co., Case No. 14-2467-SAC-GLR, 2014 WL 6632929, at *3 (D. Kan.
Nov. 21, 2014) (citing Ficken v. Alvarez, 146 F.3d 978, 981 (D.C. Cir. 1998)).

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IT IS THEREFORE ORDERED that the City Defendants’ Motion for More
Definite Statement (ECF No. 12) is GRANTED.

IT IS FURTHER ORDERED that counsel for the City Defendants must: 1) draft
an agreed notice reflecting the dismissal of Chief Gordon Ramsay, consistent with Fed.
R. Civ. P. 41(a)(1)(A)(ii); 2) confer or communicate by mail with Mr. Anderson to
obtain his signature; and 3) submit the same to the clerk’s office for filing. The notice of
dismissal should be filed within 14 days of counsel’s receipt of this Order.

IT IS FURTHER ORDERED that Mr. Anderson’s oral request to amend his
Complaint is GRANTED. Mr. Anderson must file an Amended Complaint no later
than March 24, 2017. However, if Mr. Anderson wishes the Court to reevaluate his
request for appointed counsel, he must submit a renewed motion, as described above, no
later than March 8, 2017. The Court will expeditiously evaluate any such request, but
the parties are cautioned that a meritorious request for appointed counsel may postpone
Mr. Anderson’s March 24 deadline to amend his Complaint.

IT IS SO ORDERED.
Dated at Wichita, Kansas this 23rd day of February, 2017.

s/ Gwynne E. Birzer
GWYNNE E. BIRZER
United States Magistrate Judge

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