Watson et al v. Witty et al
OPINION MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that plaintiffs motion to clarify his notice of appeal is [Doc. # 63 ] GRANTED IN PART. The Court takes judicial notice that plaintiff seeks to appeal all Orders from this Court denying his reque sts for injunctive relief and all Orders striking his stand-alone declarations. IT IS FURTHER ORDERED that this Court DENIES plaintiffs request for an extension of time to file his Notice of Appeal to the extent he is seeking one in order to encom pass any additional Court Orders. IT IS FURTHER ORDERED that this Court will not stay this action during the pendency of plaintiffs interlocutory appeal with the Eighth Circuit Court of Appeals. Signed by District Judge Henry Edward Autrey on 5/11/17. (KJS)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
TERRY G. WATSON,
KAREY L. WITTY, et al.,
No. 2:16CV71 PLC
OPINION, MEMORANDUM AND ORDER
Before the Court is plaintiff’s motion to correct his notice of appeal. The Court will grant
plaintiff’s motion to the extent he intends to clarify the record with respect to his notice of
appeal. The Court will deny plaintiff’s motion to the extent his motion is a request to stay this
action during the pendency of his interlocutory appeal.
Plaintiff, an inmate at Moberly Correctional Center (“MCC”), brings this action pursuant
to 42 U.S.C. § 1983, as well as the America ns with Disabilities Act (“ADA”). The Court did a
pre-service review of this action, pursuant to 28 U.S.C. § 1915, on March 9, 2017. In the preservice review, the Court found that plaintiff’s claims for deliberate indifference to his serious
medical needs relative to his leg and back issue survive review with respect to Dr. Aschok
Chada, Dr. Paul Jones and Cathy Barton (Corizon, LLC employees). The Court found that
several of plaintiff’s ADA claims also survive review with respect to MDOC employees Lisa
Pogue, Michelle Buckner, Correctional Officer Allen. See Memorandum and Order issued
March 9, 2017, Docket #40. Plaintiff’s additional claims, as well as several named defendants,
however, were dismissed. Id.
In its March 9, 2017 Memorandum and Order, the Court struck from the record sixteen
(16) stand-alone declarations filed by plaintiff in this action. The Court reminded plaintiff that
he was told in the Court’s December 2, 2016 Memorandum and Order that the Court does not
accept amendments by interlineation or supplementation. In addition, the Court does not accept
discovery to be filed as a stand-alone document in the Court record. Rather, discovery may only
be filed as an attachment in support of a motion. See Eastern District of Missouri Local Rules.
Accordingly, as noted above, sixteen (16) of plaintiff’s declarations were stricken from
the Court record in the Court’s March 9, 2017 Memorandum and Order. Nevertheless, plaintiff
continued to file “declarations” with this Court. In the Court’s March 20, 2017 Memorandum
and Order, the Court not only struck two (2) additional “declarations” from the Court record, but
it also instructed the Clerk of Court not to accept any additional stand-alone “declarations” from
plaintiff in this action. Plaintiff was instructed that he could not file supplements to his pleadings
or motions, or file with the Court discovery. Thus, in accordance with this Court’s Local Rules,
his stand-alone evidentiary “declarations” would not be filed in the Court record unless they are
sent in support of a motion or a pleading. The Court then examined plaintiff’s ninth (9th) request
for injunctive relief in this matter.1
On April 12, 2017 [Doc. #62], the Court reviewed two motions by plaintiff to amend his
complaint, a motion for reconsideration of a denial of a request for injunction and two
“evidentiary motions.” The Court also reviewed a new request for injunctive relief and a request
In his prior requests for injunctive relief, plaintiff sought: (1) an order to mandate Corizon to
provide plaintiff with specific pain medications; (2) an order to mandate MDOC to order new
construction at Moberly; (3) (three different requests for) orders requiring Corizon to make his
Omeprazole medication part of the automatic renewal program; (4) an order enjoining Moberly
from dispensing medication at meal times; (5) an order restricting MDOC from enforcing food
visit policies against him; and (6) an order seeking relief against MDOC from verbally
threatening him with removal from the library at MCC.
to proceed in forma pauperis on appeal. The Court denied plaintiff’s motion for reconsideration,
and his motions to “present evidence” were once again stricken from the Court’s record.
Plaintiff’s motions to amend his complaint were denied because he failed to attach a proposed
amended complaint to his motions to amend, and plaintiff had been told repeatedly that the Court
would not allow amendments by interlineation or supplementation.
Plaintiff’s motion for
injunctive relief was also denied. See Docket No. 62.
Salient to the instant motion, in Docket #58, plaintiff sought leave to proceed in forma
pauperis on an interlocutory appeal, which the Court has already granted. In his Notice of
Appeal [Doc. #57], he asks that “all stricken documents” be transferred to the Eighth Circuit
Court of Appeals for review.
As addressed in the Court’s prior Memorandum and Order, in his plaintiff’s Notice of
Appeal, plaintiff asserted that “there are matters of law and constitutional rights that he disagrees
with in this Court,” and “it appears that judicial bias against the incarcerated have played a role.”
On April 12, 2017 [Doc. #62], the Court addressed plaintiff’s assertions of judicial bias, treating
his assertions as a motion for recusal. Plaintiff’s motion for recusal was denied, as he had not
offered any basis for showing that the Court had failed to treat his case with impartiality. See
Docket No. 62.
In the April 12, 2017 Memorandum and Order, the Court informed plaintiff that
normally, only a final Order or Judgment can be appealed to an Appellate Court. See
Fed.R.Civ.P.54; 28 U.S.C. § 1291. The Court noted, however, that there are certain interlocutory
decisions over which an Appellate Court has jurisdiction. See 28 U.S.C. §§ 1291-1292. The
Court told plaintiff that because plaintiff had only referred to the Court’s actions striking his
declarations in his Notice of Appeal, it was unable to state for certain whether the Order he refers
to is appealable under 28 U.S.C. § 1292. After the Court entered its Memorandum and Order,
plaintiff filed the instant motion.
In his motion to correct his Notice of Appeal, plaintiff asks for “an interlocutory appeal
on matter of legal points of law and matter collateral to the injunctive relief requested in several
actions.” Plaintiff goes on to state a number of questions he wishes the Court of Appeals to
consider, including plaintiff’s apparently overarching question in this lawsuit: Why doesn’t the
Missouri Department of Corrections recognize the same disability standards as the Department
of Veterans Affairs?
Unfortunately, although plaintiff has sought to clarify his Notice of Appeal, plaintiff has
not indicated the specific Court Orders he wishes to appeal from, nor has he indicated the docket
numbers that correspond to his Notice of Appeal. He has merely “clarified” the numerous
questions that he wishes the appellate court to address on appeal.
Pursuant to 28 U.S.C. §§ 1291 and 1292, when attempting to review interlocutory
decisions, courts of appeal are limited to reviewing certain orders from the district court,
including those refusing injunctions. Id. Plaintiff has indicated in the present motion that he
wishes the appellate court to review all of this Court’s orders denying his requests for
injunctions, in addition to this Court’s decision to “strike” certain documents.
In order to fulfill plaintiff’s request, the appellate court would likely need to review every
Memorandum and Order issued by this Court up until this juncture, including the denial of all
twelve (12) of plaintiff’s requests for injunctive relief2 and more than twenty-seven (27)
documents stricken by this Court from the Court record. The Court does not believe that
This number does not include the motions seeking reconsideration of the denial of plaintiff’s
requests for injunctive relief.
plaintiff’s Notice of Appeal was filed in a timely manner such that the NOA, filed on March 29,
2017, could encompass all of the aforementioned Orders, dating back through December
2016.3 Nonetheless, the Court will grant plaintiff’s motion to clarify his Notice of Appeal.
Plaintiff will not, however, be granted an extension of time to file his Notice of Appeal.
Additionally, the Court will not stay this action during the pendency of plaintiff’s interlocutory
appeal in the Eighth Circuit Court of Appeals. See 28 U.S.C. § 1292(b).
IT IS HEREBY ORDERED that plaintiff’s motion to clarify his notice of appeal is
[Doc. #63] GRANTED IN PART. The Court takes judicial notice that plaintiff seeks to appeal
all Orders from this Court denying his requests for injunctive relief and all Orders striking his
IT IS FURTHER ORDERED that this Court DENIES plaintiff’s request for an
extension of time to file his Notice of Appeal to the extent he is seeking one in order to
encompass any additional Court Orders.
IT IS FURTHER ORDERED that this Court will not stay this action during the
pendency of plaintiff’s interlocutory appeal with the Eighth Circuit Court of Appeals.
Dated this 11th day of May, 2017.
HENRY EDWARD AUTREY
UNITED STATES DISTRICT JUDGE
In cases in which there is a statutory right to appeal an interlocutory order, the appeal time
provisions of Appellate Rule 4 apply. Failure to take a timely appeal defeats the right to review
before final judgment. See Fed.R.App.P.4(a)(1).
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