Peoples v. Wichita State University

Filing 70

MEMORANDUM AND ORDER denying 61 Motion Requesting for Appointed Expert Witnesses; 63 Motion for Sanctions; 64 Motion for Evidentiary Hearing Over Sanctions; and granting 65 Motion to Quash. Signed by Magistrate Judge Teresa J. James on 3/25/2019. Mailed to Darrell Peoples by regular Mail. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
DARRELL PEOPLES,
Plaintiff,
v.
WICHITA STATE UNIVERSITY, et al.,
Defendants.

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

MEMORANDUM AND ORDER
Before the Court are Plaintiff’s Motion Requesting for Appointed Expert Witnesses
Under Rule 26.4 (sic) (ECF No. 61), Plaintiff’s Request Sanctions Fed. R. Civ. P. 11 and the
Rules that Comply to it (sic) (ECF No. 63), Plaintiff’s Motion for Evidentiary Hearing Over
Sanctions (ECF No. 64), and Defendant’s Motion to Quash (ECF No. 65). For the reasons stated
below, Plaintiff’s motions are denied, and Defendant’s motion is granted.
I.

Procedural History
Pro se Plaintiff Darrell Peoples filed this action on January 8, 2018 alleging employment

discrimination against Wichita State University and Lacey Rowe. On October 16, 2018, the
Court granted Defendant Rowe’s motion to dismiss and dismissed her as a party (ECF No. 50).
On January 14, 2019, Plaintiff filed his motion requesting expert witnesses under Rule 26.4.
Plaintiff says he is requesting an expert witness so his “defense is validated” and his “allegations
will be proven.”1 He also says “ANY civil or criminal case is proven by experts that justify the
claims thats (sic) whats (sic) needed since I stay in PRO-se form.”2

1

ECF No. 61 at 1.

2

Id.

Next, on January 31, 2019, Plaintiff filed his request for sanctions. He says he sent a
“certified letter” to Defendant on January 16, 2019 requesting several documents and waited for
Defendant’s response and “production of documents” but did not receive any within the 14-day
time period in accordance with the local rules.3 Plaintiff says because Defendant “refused to
follow the rules,” sanctions are appropriate. He also seems to argue that Defendant violated
“Rule 26(a)(1), 33, and after inspection and copied (sic) I was going to send the motion of
discovery and interrogatories this bad faith situation should follow Rule 36 admissions” and that
he wants the Court to “find that Rule 11 has been violated and properly displine (sic) opposing
party for there (sic) bad faith and burden.”4 Plaintiff also filed his motion for evidentiary
hearing over sanctions on January 31, 2019.
On January 31, 2019, Defendant filed its motion to quash requesting the Court quash a
subpoena Plaintiff issued to Defendant. Defendant argues a subpoena is not the proper way to
gather documents in discovery, and the documents requested “are far beyond the scope of
discovery or are too vague for meaningful compliance.”5
On February 11, 2019, Plaintiff filed a document titled “Memorandum in Support of
Sanctions and Evidentiary Hearing I Object to the Squashing of Them and There Nature.” (sic).6
Plaintiff says if his request for sanctions and evidentiary hearing were “squashed” it would “be a
violation of due process the Fifth Amenment (sic)” as well as the 10th and 14th Amendment of
Kansas and the United States.7 He also mentions another case in this court but does not explain

3

ECF No. 63 at 1.

4

Id.

5

ECF No. 65 at 2.

6

ECF No. 66.

7

Id.

2

why or how that case is connected to this case.8 Defendant filed a response to Plaintiff’s three
motions on February 22, 2019.9 However, any response to the motion requesting expert
witnesses was due January 28, 2019, and responses to the other two motions were due February
14, 2019.10 Therefore, the Court does not consider Defendant’s response in making its decision.
II.

Plaintiff’s Motions
A. Plaintiff’s motion requesting an appointed expert witness
Plaintiff says he “is requesting a (sic) expert witness so my defense is validated by my

evidence . . .” The title of Plaintiff’s motion references Rule 26.4. Although he does not specify
the source of Rule 26.4, D. Kan. Rule 26.4 discusses expert witnesses. It says, in relevant part:
If a judge determines that the appointment of expert witnesses in
an action may be desirable, the judge will order the parties to show
cause why expert witnesses should not be appointed. After
opportunity for hearing, the judge may request nominations and
appoint one or more such witnesses. . . . This rule does not limit
the parties in calling their own expert witnesses.
Plaintiff appears to request that the Court appoint an expert witness for him. Whether a
court should appoint an expert witness is within the court’s discretion.11 The court should
consider factors such as “the complexity of the matters to be determined and the Court’s need for
a neutral, expert view.”12 The in forma pauperis statute does not provide for payment of expert

See id. (“The defendants will not comply to court rules to validate my statements case # 16-cv-2138-DDC-TJJ on
there (sic) docket you will view the same way of practice by not allowing a discovery your (sic) saying to the public
that rights are not protected.”
8

9

ECF No. 68.

10

See D. Kan. Rule 6.1(d) ("Unless the court orders otherwise . . . [r]esponses to non-dispositive motions . . . must
be filed and served within 14 days.”).
11

Brown v. Gray, No. 06-3003-JTM, 2011 WL 6091738, at *6 (D. Kan. Dec. 7, 2011) (internal citations omitted).

12

Id. (internal quotations omitted).

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witness fees.13 “Rather, under Fed. R. Evid. 706(c) and D. Kan. Rule 26.4, each party typically
splits the costs of a court-appointed expert.”14 But, when a plaintiff is proceeding in forma
pauperis, “in reality defendants would bear the entire cost of an expert if the court decided to
appoint one. Accordingly, the court exercises this power sparingly.”15
The Court has not previously determined and is not able to determine now that the
appointment of expert witnesses in this action is desirable. Plaintiff has not presented any
evidence to suggest the same. He simply says he is requesting one. He does not specify what
type of expert witness he seeks, why an expert witness is necessary, or why he is unable to find
an expert witness on his own. Additionally, an expert appointed by the court “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).”16 Plaintiff makes
no showing that the expert he seeks would be for the benefit of anyone but himself. Accordingly,
his motion is denied.
B. Plaintiff’s motion for sanctions and motion for evidentiary hearing
Plaintiff seeks sanctions against Defendant because he did not receive a response to a
subpoena he issued to Defendant. He requests an evidentiary hearing on this issue. Plaintiff says
sanctions are appropriate under Fed. R. Civ. P. 11 because Defendant violated Rule 26(a)(1),
Rule 33, and Rule 36. He cites no authority for his request for an evidentiary hearing.

See 28 U.S.C. § 1915(c); see also Patel v. U.S., 399 Fed. Appx. 355, 359 (10th Cir. 2010) (noting that “the in
forma pauperis statute makes no provision for litigation expenses other than the reproduction of the record and
transcripts.”).
13

14

Miles v. Conrad, No. 16-3152-EFM, 2018 WL 994705, at *1 (D. Kan. Feb. 21, 2018).

15

Id.

16

Id. at 2.

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Although the Court does not consider Defendant’s response when making its decision,
the response is helpful in providing some factual context because Plaintiff’s motions are hard to
follow.17 Plaintiff’s motion for sanctions apparently stems from a subpoena Plaintiff sent by
certified mail to Defendant, on January 16, 2019, seeking production of documents by January
31, 2019.18 Plaintiff says Defendant had 14 days to respond to his subpoena, but he had not
received a response by January 31, 2019, and therefore he filed his motions. On that same date,
Defendant filed its motion to quash the subpoena.
Plaintiff’s subpoena is improper. The subpoena requests are vague and overly broad on
their face. According to his subpoena, Plaintiff seeks several documents and addresses for more
than 20 people. He requests documents regarding “all allegations that have anything to do with
this claim” and “all signed documents by Darrell Peoples during the duration of employment.”19
He also requests “all records” regarding another person, apparently a former employee of
Defendant.20 It is not clear why that employee’s records would be relevant to this case, and
Plaintiff does not provide any explanation.
Additionally, Plaintiff is attempting to obtain documents from a party (Defendant) by
using a mechanism (a subpoena) typically used on non-parties. As a result, the Court finds that
Plaintiff is requesting sanctions that are neither warranted nor appropriate. Federal Rule of Civil
Procedure 45 discusses subpoenas. Although it provides that a court “may hold in contempt a
person who, having been served, fails without adequate excuse to obey the subpoena or an order

Much of the same information is contained in Defendant’s motion to quash, which the Court later discusses in
more detail.
17

18

See ECF No. 63 at 3; ECF No. 62.

19

ECF No. 63 at 4.

See ECF No. 68 at 3; ECF No. 63 at 4 (“All records of Matthew Johnston and his position and why he was
dismissed from his job.”).
20

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related to it,” it does not provide for sanctions.21 Plaintiff cannot receive sanctions pursuant to
Rule 45 for Defendant’s failure to respond to the subpoena. Furthermore, under the applicable
Federal Rules of Civil Procedure, Defendant would have been allowed 30 days (not 14 days as
Plaintiff contends) after service of Plaintiff’s document requests “to produce and permit
[Plaintiff] or [his] representative to inspect, copy, test, or sample” responsive documents.22
Moreover, Defendant timely filed its motion to quash the subpoena on January 31, 2019.
Plaintiff’s motion for sanctions is, therefore, inappropriate on multiple bases, including
specifically in relation to Rule 45.23
Plaintiff has also failed to comply with the requirements for obtaining sanctions under
Rule 11. A court may award sanctions only “after notice and a reasonable opportunity to
respond.24 A motion for sanctions under Rule 11 “must describe the specific conduct that
allegedly violates Rule 11(b)” and must be served on the opposing party 21 days before it is
filed, thus giving the opposing party an opportunity to correct the issue.25 Plaintiff has not done
so. For all of these reasons, Plaintiff’s motion for sanctions is denied. As a result, his motion for
an evidentiary hearing is also denied.
III.

Defendant’s motion to quash
Defendant seeks to quash Plaintiff’s subpoena that is the subject of his motion for

sanctions. Defendant says the subpoena is not the proper way to gather documents in discovery,

21

Fed. R. Civ. P. 45(g).

22

Fed. R. Civ. P. 26, 34(a)(1), and 34(b)(2)(A).

See N.L.R.B. v. Midwest Heating & Air Conditioning, Inc., 528 F. Supp. 2d 1172, 1181 (D. Kan. 2007) (“Thus,
sanctions are appropriate under Rule 45 only if a nonparty is declared in contempt on the basis of its failure to
comply with subpoena.).
23

24

Fed. R. Civ. P. 11(c)(1).

25

Fed. R. Civ. P. 11(c)(2).

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and the requested documents go beyond the scope of discovery and are “too vague for
meaningful compliance.”26 Plaintiff did not respond to Defendant’s motion but did file a
memorandum in support of his motion for sanctions and evidentiary hearing.27 In that document,
Plaintiff says he objects “to squashing of my request for sanctions and the request of evidentiary
hearing.”28
Plaintiff served his subpoena on January 17, 2019.29 The subpoena directed Defendant to
produce the requested documents by January 31, 2019. As previously discussed, the subpoena
requested nine categories of documents, none narrowed in time or scope, and information on
more than 20 people. Many of the categories are overly broad and vague on their face. Defendant
also contends the subpoena fails to allow reasonable time for compliance and may seek
privileged or other protected documents.
Rule 45(d)(1) says a party issuing a subpoena “must take reasonable steps to avoid
imposing undue burden or expense on a person subject to the subpoena.” A court may quash a
subpoena that fails to allow a reasonable time to comply, requires disclosure of privileged or
other protected matter, or subjects a person to undue burden.30 Here, the Court finds Plaintiff’s
subpoena creates an undue burden on Defendant by failing to give Defendant a reasonable
amount of time to respond. If Plaintiff were to request documents via the normal discovery
procedure, Defendant would have 30 days to respond. Here, Defendant was given less than half
that amount of time to produce a wide array of documents. Defendant contends many of the

26

ECF No. 65 at 2.

27

ECF No. 66.

28

Id. at 1.

29

See ECF No. 62 at 3 (showing the certified mail return receipt date of delivery as January 17, 2019).

30

Fed. R. Civ. P. 45(d)(3).

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requested documents are also privileged. Plaintiff is encouraged to review the federal and local
rules going forward in this case. Although Plaintiff proceeds pro se, he is still required to comply
with the fundamental rules of civil procedure.31 Defendant’s motion to quash is therefore
granted.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s Motion Requesting
for Appointed Expert Witnesses Under Rule 26.4 (sic) (ECF No. 61) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Request Sanctions Fed. R. Civ. P. 11 and
the Rules that Comply to it (sic) (ECF No. 63) is denied.
IT IS FURTHER ORDERED that Plaintiff’s Motion for Evidentiary Hearing Over
Sanctions (ECF No. 64) is denied.
IT IS FURTHER ORDERED that Defendant’s Motion to Quash (ECF No. 65) is
granted.
IT IS SO ORDERED.
Dated March 25, 2019, at Kansas City, Kansas.

Teresa J. James
U. S. Magistrate Judge

31

See McKenzie v. Citibank (South Dakota), NA, No. 08-02510-JAR, 2009 WL 4891890, at *3 (D. Kan. Dec. 8,
2009) (citing Hammad v. Bombardier Learjet, Inc., 192 F. Supp. 2d 1222, 1229 (D. Kan. 2002)).

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