Peoples v. Wichita State University

Filing 21

ORDER denying 16 Plaintiff's Motion for Reconsideration of the Court's 15 Order denying his motion for appointment of counsel. Signed by Magistrate Judge Teresa J. James on 5/3/2018. (Mailed to pro se plaintiff by regular mail.) (byk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DARRELL PEOPLES,
Plaintiff,
v.
WICHITA STATE UNIVERSITY,
Defendant.

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Case No. 18-cv-1010-JTM-TJJ

ORDER
Plaintiff, proceeding pro se and in forma pauperis,1 filed this employment discrimination
action under Title VII of the Civil Rights Act of 1964.2 Plaintiff has filed a Motion to
Reconsider (ECF No. 16) the Court’s March 16, 2018 Order (ECF No. 15) denying his request
for appointment of counsel under 42 U.S.C. ' 2000e-5(f)(1). In that Order, the Court found
Plaintiff’s claims did not have sufficient merit to warrant the appointment of counsel based upon
the “sparse allegations set forth by Plaintiff in his complaint and his failure to attach his Notice
of Right-to-Sue Letter showing his complaint is timely filed.” For the reasons set forth below,
Plaintiff’s motion is denied.
District of Kansas Rule 7.3(b) permits a party to file a motion seeking reconsideration of
a non-dispositive order, such as an order denying appointment of counsel. The 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.”3 A motion to

1

See Order Granting Leave to Proceed In Forma Pauperis (ECF No. 7).

2

42 U.S.C. §§ 2000e et seq.

3

D. Kan. Rule 7.3(b). The Tenth Circuit has adopted the same standard. See, e.g., Servants of

reconsider is appropriate if the court has obviously misapprehended a party’s position, the facts,
or applicable law or if the party produces new evidence that could not have been obtained
through the exercise of due diligence.4 Such motions are not appropriate if the movant only
wants the Court to revisit issues already addressed or to hear new arguments or supporting facts
that could have been presented originally.5 Whether to grant or deny reconsideration lies within
the court’s sound discretion.6 The movant has the burden to show an adequate reason to
reconsider the prior order of the court.7
In his motion for reconsideration, Plaintiff does not cite or argue any of the enumerated
grounds set forth in D. Kan. Rule 7.3(b) for granting reconsideration of a non-dispositive order.
He merely attaches copies of his EEOC Right-to-Sue Letter and Kansas Human Rights
Commission complaint to his motion. Plaintiff thus appears to be asking the Court to reconsider
its earlier order denying his motion for appointment of counsel by providing his right-to-sue letter.
As noted above, asking the Court to consider its order based on evidence previously
available, or new arguments or supporting facts that could have been presented originally is not a
valid basis for reconsideration. Even if the Court were to consider the documents attached to
Plaintiff’s motion for reconsideration, they do not change the Court’s finding with respect to

Paraclete v. Does, 204 F.3d 1005, 1012 (10th Cir. 2000); Brumark Corp. v. Samson Res. Corp., 57 F.3d
941, 944 (10th Cir. 1995).
4

Comeau v. Rupp, 810 F. Supp. 1172, 1174–75 (D. Kan. 1992).

5

Van Skiver v. United States, 952 F.2d 1241, 1243 (10th Cir. 1991).

6

Rand v. Wolf Creek Nuclear Operating Corp., No. 11-4136-KHV, 2012 WL 1154509, at *2 (D.
Kan. Apr. 5, 2012).
7

Id.

2

whether Plaintiff has asserted meritorious allegations of discrimination that warrant the
appointment of counsel at this time. While the documents show that Plaintiff received a right-tosue letter, they do not conclusively establish that his complaint was timely filed. The Court also
notes that Defendant has filed a motion requesting dismissal of Plaintiff’s complaint as untimely
filed. The Court therefore declines to reconsider its prior order.
IT IS THEREFORE ORDERED THAT Plaintiff’s Motion to reconsider (ECF No. 16)
is denied.
IT IS FURTHER ORDERED that a copy of this Order shall be mailed to Plaintiff, who
is proceeding pro se.
Dated in Kansas City, Kansas, this 3rd day of May 2018.

Teresa J. James
U. S. Magistrate Judge

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