Summary
In Lynn v. Simpson, 2000 WL 745324 (D. Kan. Apr. 10, 2000), after summarizing plaintiff's abuses in that case, Judge Lungstrum explicitly informed plaintiff that "failure to abide by the court's orders could result in sanctions, including dismissal of this action with prejudice."
Summary of this case from Lynn v. RobertsOpinion
Case No. 97-3209-JWL
April 10, 2000
MEMORANDUM AND ORDER
Plaintiff filed this pro se civil rights action against various officers of the Johnson County, Kansas Adult Detention Center (hereinafter "JCADC"). In an order filed August 13, 1999, however, the court granted summary judgment as to all claims remaining against all defendants with the exception of an Eighth Amendment excessive force claim filed against Deputy Valdez (Doc. 41). Thereafter, the court referred a number of non-dispositive motions to Magistrate Judge Walters. Presently before the court are four motions by plaintiff, (Docs. 115, 120, 130, 132), asking the court to review the subsequently issued orders of the magistrate. Also before the court is a motion by plaintiff requesting oral argument regarding his state law supplemental claims (Doc. 134) and a motion by plaintiff asking that he be allowed to wear his own clothing at trial (Doc. 144). For the reasons set forth below, plaintiff's motions objecting to the magistrate's orders are denied, plaintiff's motion for oral argument regarding his supplemental claims is denied, and plaintiff's motion that he be allowed to wear his own clothing at trial is granted.
Only the bare facts of this case are set out here for the readers' convenience. A more complete rendition of the facts can be found in the court's August 13, 1999 Memorandum and Order, (Doc. 41), and the court's February 28, 2000 Memorandum and Order, (Doc. 163).
On May 8, 1997, plaintiff filed a complaint pursuant to 42 U.S.C. § 1983, asserting claims of Eighth Amendment excessive force, Eighth Amendment failure to provide proper medical care, and inadequate training and supervision in connection with two instances that occurred while he was detained at JCADC following conviction. First, on December 12, 1996, after plaintiff spit on a judge's nameplate and verbally threatened a newspaper reporter, deputies physically forced plaintiff's face into the wall of an elevator. Second, on January 16, 1997, Deputy Valdez slammed plaintiff's head into the wall of his cell and choked plaintiff with his hands. On August 13, 1999, the court issued a Memorandum and Order granting summary judgment as to all claims against all defendants, with the exception of the excessive force claim asserted against Deputy Valdez (Doc. 41). On February 28, 2000, the court denied plaintiff's motion to reconsider its summary judgment order. Thus, the sole issue at trial will be whether the force asserted by Deputy Valdez "was applied in a good-faith effort to maintain or restore discipline, or maliciously and sadistically to cause harm." Hudson v. McMillian, 503 U.S. 1, 7 (1992).
II. Plaintiff's First and Second Motions: Seeking Review of the Magistrate's November 22, 1999 Order and December 3, 1999 Order
Plaintiff's first and second motions (Docs. 115 120) object to a number of findings set forth by the magistrate in Orders dated November 22, 1999 and December 3, 1999. Pursuant to Federal Rule of Civil Procedure 72(a), plaintiff's objections are untimely. Rule 72(a) states, in relevant part, "Within 10 days after being served with a copy of the magistrate judge's order, a party may serve and file objections to the order; a party may not thereafter assign as error a defect in the magistrate judge's order to which objection was not timely made." In calculating the ten day period within which plaintiff could have timely filed his objections, the court must consider three rules of timing. First, Federal Rule of Civil Procedure 6(e) states, "Whenever a party has the right or is required to do some act or take some proceedings within a prescribed period after the service of a notice or other paper upon the party and the notice or paper is served upon the party by mail, 3 days shall be added to the prescribed period." Because Rule 72(a) starts the running of the ten days upon service of a copy of the magistrate's order, and because service of the magistrate's order was by mail, Rule 6(e) requires the court to add three days to the prescribed ten day time period. Second, Federal Rule of Civil Procedure 6(a) states, "When the period of time prescribed or allowed is less than 11 days, intermediate Saturdays, Sundays, and legal holidays shall be excluded in the computation." Because Rule 72(a) prescribes a time period of ten days, the court will exclude weekends and legal holidays in its computation of the ten day period. Third, the "prison mail-box rule" requires the court to deem plaintiff's motions filed on the date in which he presented them to prison officials for mailing. See Dunn v. White, 880 F.2d 1188, 1190 (10th Cir. 1989) (applying the prison mail-box rule, as set out by the Supreme Court in Houston v. Lack, 487 U.S. 266 (1988), to prisoner's objections to magistrate's report). Even the benefits provided plaintiff by these three timing rules, however, cannot save plaintiff's first two objections to the magistrate's orders.
Plaintiff's first motion (Doc. 120) seeks reconsideration of the magistrate's November 22, 1999 Order (Doc. 98). Applying Rule 6(e), three days are counted from that date, making November 25, 1999 the day on which the ten day period prescribed in Rule 72(a) began. Then, pursuant to Rule 6(a), ten days, excluding holidays and weekends, gave plaintiff until December 2, 1999 to timely file his motion. Pursuant to the prison mail-box rule, plaintiff was only required to have given his motion to prison officials for mailing by that date; the date at which the motion was actually stamped "filed" by the Clerk of Court is irrelevant. Plaintiff's first motion was signed and dated by plaintiff on December 13, 1999. Even assuming that plaintiff presented the motion to prison officials for mailing on the same day, plaintiff's motion was filed eleven days after the December 2 deadline.
Plaintiff's second motion (Doc. 115) seeks reconsideration of the magistrate's December 3, 1999 Order (Doc. 106). Pursuant to Rule 6(e), three days are added to that date to determine when the ten day time period prescribed in Rule 72(a) began. Then, applying Rule 6(a), ten days are counted, excluding holidays and weekends, ultimately giving plaintiff until December 20, 1999 to have timely filed his motion. Again, the prison mail-box rule applies, such that plaintiff needed only to have presented his motion to prison officials for mailing by that date. Plaintiff's second motion was signed and dated on December 27, 1999. As the motion was still in plaintiff's possession seven days after the December 20, 1999 filing deadline, it is clearly untimely.
For these reasons, plaintiff's first and second motions objecting to the magistrate's Orders are denied as untimely. The magistrates Orders of November 22, 1999 and December 3, 1999 shall stand.
III. Plaintiff's Third and Fourth Motions: Seeking Review of the Magistrate's January 14, 2000 Oral Rulings and January 20, 2000 Order Memorializing Those Rulings
Plaintiff's next two motions stem from a hearing held by the magistrate on January 14, 2000. At the hearing, the magistrate made a number of oral rulings, which she subsequently memorialized in a written order on January 20, 2000. Plaintiff's third motion asks the court to review the rulings orally made by the magistrate at the hearing (Doc. 130). Plaintiff's fourth motion asks the court to review the magistrate's written order memorializing her oral rulings (Doc. 132). A district court's review of a magistrate's order as to non-dispositive pretrial matters is governed by 28 U.S.C. § 636(b)(1)(A). Under that provision, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate's order is "clearly erroneous or contrary to law." Fed.R.Civ.P. 72(a); Hutchinson v. Pfeil, 105 F.3d 562, 566 (10th Cir. 1997); Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1462 (10th Cir. 1988). The clearly erroneous standard "requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed." Ocelot Oil, 847 F.2d at 1464 (quoting United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948)); see also Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D. Kan. 1991) ("Because a magistrate is afforded broad discretion in the resolution of nondispositive discovery disputes, the court will generally grant the magistrate great deference and overrule the magistrate's determination only if this discretion is clearly abused.").
Magistrate Walter's Order begins: "The purpose of this order is to memorialize the rulings made at the January 14 hearing." (Doc. 128, at 1).
As an initial matter, the court must address the problem raised by plaintiff's failure to provide the court with a written transcript of the January 14, 2000 hearing. Without a transcript of the hearing, the court is unable to review the magistrate's oral rulings for clear error. Moreover, the court is helpless in determining whether plaintiff is correct when he asserts that "the Magistrate Judge's written order contradicts that which she stated at the 1-14-00 hearing." (Doc. 132 at 3). The Tenth Circuit was faced with a similar situation in Roberts v. State of Oklahoma, No. 95-6235, 1997 WL 163524 (10th Cir. April 8, 1997). In Roberts, the appellant "failed to include a transcript of the magistrate judge's oral denial of her motion for additional depositions." Id. at *10. To circumvent this disability, the Circuit examined the written record that it did have before it in reviewing the magistrate's ruling. See id. at *9-10 (affirming the magistrate). Following the Tenth Circuit's lead, the court will not strike plaintiff's third motion regarding the magistrate's oral rulings, but instead will review both of plaintiff's motions by examining the record that it has before it — the magistrate's written order memorializing her oral rulings.
The first ruling which plaintiff objects to is the magistrate's statement that "all future discovery motions filed in this action must be signed by plaintiff's counsel." (Doc. 128 at 2). Plaintiff "vigorously objects to this ruling because . . . [i]f counsel fails to properly and adequately gather such facts and evidence Plaintiff deems necessary and essential, then he has no recourse under the conditions by this ruling." (Doc. 132 at 1). The court finds that the magistrate's decision to require the signature of plaintiff's attorney, the attorney which was appointed at plaintiff's request (Doc. 116), was in keeping with the Federal Rules of Civil Procedure and was not clearly erroneous. Federal Rule of Civil Procedure 11(a) requires that all motions "be signed by at least one attorney of record." Additionally, plaintiff's discovery practice to date demonstrates that plaintiff is either ignorant of the discovery rules or abusive of the discovery process. For example, of the sixty requests for production of documents served by plaintiff upon defendant on August 24, 1999, the magistrate has determined that defendant need not respond to fifty. (Doc. 128). In viewing the history of this case, the court is not "left with the definite and firm conviction that a mistake has been committed" by the magistrate. Ocelot Oil, 847 F.2d at 1464. This objection is overruled.
Plaintiff requested that the court appoint him counsel (Doc. 57) and the court obliged (Doc. 116). The "lack of meaningful consultation and cooperation between him and appointed counsel" claimed by plaintiff (Doc 158) has been subsequently addressed by the appointment of new counsel (Doc. 180).
While the court affirms the magistrate's ruling requiring the signature of plaintiff's counsel on discovery motions, the court disagrees with defendant's argument that plaintiff acted in contempt of court when he filed his third and fourth motions without his attorney's signature (Docs. 130 132). Plaintiff clearly violated the magistrate's order, but the court is not convinced that the violation was intentional and that plaintiff fully understood the order. For example, the magistrate's order technically pertained only to " future discovery motions." (Doc. 128 at 2). Plaintiff's third and fourth motions sought review of the magistrate's rulings on past discovery motions. While the magistrate likely meant to require plaintiff's attorney to sign any additional pleadings related to discovery, the court will give plaintiff the benefit of the doubt and address the merits of plaintiff's motions. As discussed further below, however, the court expects plaintiff to be more careful in following the orders of the court in the future.
The Clerk of Court has construed defendant's Contempt of Court claims (Docs. 140 143) as responses to plaintiff's third and fourth motions. To the extent that these claims were motions for sanctions, the motions are denied. Moreover, plaintiff has objected to defendant's February 14, 2000 response (Doc. 143) as untimely. While the court agrees that the response is untimely, the court exercises its discretion to consider it, though ultimately rejecting it on the merits.
Addressing the merits of plaintiff's motions, the court can attribute no clear error to the magistrate's rulings. Plaintiff objects to a number of the magistrate's rulings concerning his discovery requests. First, plaintiff claims that the magistrate "arbitrarily denied" his requests for production of documents numbered 1, 2, 4-10, 12-16, 20, 21, 23-37, 39-58, and 60, but plaintiff cites no law or evidence to support his contention. While plaintiff recaps the magistrates holdings, he gives no explanation as to why he believes those holdings are erroneous, with one exception. Vague, conclusory statements which fail to frame and develop an issue for review are insufficient to support a party's objections and the court need not consider them. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); Hermansen v. Utah, No. 97-4056, 1998 WL 166066 (10th Cir. April 10, 1998). The one exception to plaintiff's pattern of conclusory allegations does warrant brief consideration. With regard to discovery requests 35 and 36 the magistrate denied plaintiff's motion to compel on the basis that the documents plaintiff sought do not exist. Plaintiff argues that the documents must exist "because plaintiff himself made a written request to the Johnson Co. Sheriff during August 1999 to conduct an independent investigation and to conduct polygraphs for all involved in those matters. That written request . . . plainly would qualify as a request under this discovery request." (Doc. 132 at 3). Plaintiff appears to misunderstand the magistrate's ruling. The magistrate found that the documents sought by requests 35 and 36 did not exist, not that the requests themselves did not exist. The court believes that plaintiff's utilization of his newly appointed attorney will help alleviate misunderstandings of this type in the future.
Next, plaintiff objects to the magistrate's refusal to compel defendant to produce plaintiff's requests numbered 34, 43, and 48. Plaintiff argues that at the January 14, 2000 hearing defense counsel "emphatically proclaimed that there are 40 to 50 use of force incidents reported for every month since 1995;" presumably, plaintiff believes that these reports justify the production of the documents he requested. Plaintiff also argues that this statement should compel the court to "re-open the summary judgment issues on the failure to properly train, supervise, and discipline those whom it employs." Defense counsel has explained that his statement pertained to all use of force reports filed with the Johnson County Sheriff's Department, not just those related to the detention center. The court is presented with no evidence that the magistrate failed to consider defense counsel's statement. Moreover, the court cannot conceive of how the statement could affect the magistrate's decision that these requests where overbroad. As to plaintiff's failure to train and supervise claim, the court has dismissed it on summary judgment (Doc. 41) and again rejected it on reconsideration (Doc. 163). Plaintiff has not asserted the existence of any ground enumerated in Federal Rule of Civil Procedure 60(b) for relief from the court's summary judgment order. Thus, the court will not discuss this claim a third time here. Plaintiff's remedy now lies with the Tenth Circuit on appeal.
Plaintiff's third discovery complaint is that the magistrate's two-week extension of the discovery deadline to January 31, 2000 is inadequate. The inadequacy is allegedly compounded by the magistrate's denial of plaintiff's motions that he be transferred to the Topeka correctional facility to be closer to his lawyers and that he be transferred to the Johnson County Jail so that he could be present during the depositions of the defendant and others. The court finds no error in the magistrate's decisions. First, plaintiff makes the conclusory statement that the discovery extension is inadequate, yet he does not explain his inability to complete discovery in the additional time granted to him. Second, plaintiff cites no authority for the contention that he is entitled to transfer prisons to be closer to his attorneys or to be present at depositions conducted by his attorneys. The court can find no authority supporting such transfers. Plaintiff's place of confinement is beyond the jurisdiction of this court and the court will not disturb the magistrate's rulings in this regard.
Fourth, plaintiff asks the court to send a United States Marshal to inspect the Johnson County Jail for the existence of mounted video surveillance cameras. Plaintiff alleges that this is necessary because defendant denies the existence of such cameras and therefore will not adhere to plaintiff's discovery requests related to the alleged cameras. Plaintiff has submitted affidavits supporting the presence of such cameras, (See e.g., Doc. 71, Ex. A; Doc. 84, Ex. B), while defendant has submitted affidavits denying the presence of such cameras, (See e.g., Doc.80, Ex. A). The affidavits submitted by plaintiff are statements from persons who claim to have visually seen mounted cameras in the Johnson County jail. The affiants, however, have no first hand knowledge of what the cameras actually record, nor if they are even operable. Thus, the court finds no evidence that the magistrate judge failed to properly consider the evidence before her and cannot find that she committed clear error in her ruling.
Plaintiff's fifth objection to the magistrate's order is that she denied plaintiff's motion to compel (Doc. 114) and motion for protective order (Doc. 111) because they failed to include the certification required by Federal Rules of Civil Procedure 37(a)(2)(B) and 26(c). Plaintiff asserts that since he is a pro se plaintiff, the magistrate had a duty to construe his motions liberally and not to have denied them on a technicality. "Although we construe [plaintiff's] pleadings liberally because he is a pro se litigant, he nevertheless must follow the same procedure that govern other litigants." Green v. Dorrell, 969 F.2d 915, 917 (10th Cir. 1992) (upholding the dismissal of a case where plaintiff failed to follow a local procedural rule). The magistrate's order was not clearly erroneous in light of plaintiff's duty to follow the rules of civil procedure pertaining to discovery.
Plaintiff's final objection to the magistrate's order governing the parties' discovery disputes is that the magistrate denied plaintiff's motion for orders (Doc. 101). The magistrate found that the "motion seeks relief from certain practices and policies of the El Dorado Correctional Facility, which Facility is not a party to this action." (Doc. 128 at 5). Plaintiff argues that it is immaterial that the El Dorado Correctional Facility (EDCF) is not a party to this suit because the EDCF is interfering with his preparation for trial. While plaintiff may have a cause of action against the EDCF if the facility is interfering with his access to the courts, see Lewis v. Casey, 518 U.S. 343 (1996), the EDCF is not a party in this suit. The court finds that the magistrate committed no clear error, leading the court to affirm the magistrate's discovery rulings.
IV. Plaintiff's Fifth Motion: Requesting Oral Argument Regarding His Supplemental State Law Claim
Plaintiff's fifth motion (Doc. 134) seeks oral argument regarding plaintiff's state law claims. The court has reviewed plaintiff's motion and finds the issues presented completely irrelevant to the civil claims presented in the case pending before the court. This motion is denied.
V. Plaintiff's Sixth Motion: Requesting That He be Allowed to Wear His Own Clothing at Trial
In his sixth motion (Doc. 144), plaintiff moves the court to allow him to wear his own clothing at trial. Defendant has not responded to this motion. To ensure that plaintiff is not prejudiced by being "forced to appear for trial in prison garb," the court grants plaintiff's motion and orders prison officials to allow plaintiff to wear his own clothing at trial.
VI. Conclusion
Plaintiff has repeatedly stated his concern that the court's rulings demonstrate that the court has lost its objectivity in this matter. The court assures plaintiff that the court has no interest as to which party ultimately prevails in this case, and the court is making every effort to give plaintiff a full and fair opportunity to resolve this dispute at trial. In the legal arena, however, there are rules that must be followed by the parties, as well as by the court. The court has abided by these rules and expects the parties to do the same. The rules do not allow plaintiff to waste the time and energy of court personnel and to make the litigation more burdensome for the defendant by repeatedly raising issues which the court has already decided. Plaintiff's remedy as to these issues now lies only with the appellate court. The court believes that plaintiff's current counsel will be able to assist him in better understanding the functioning of the legal system. The court orders that as long as plaintiff is represented by counsel, plaintiff's counsel must sign any paper filed with the court by plaintiff except for a motion by plaintiff to discharge his counsel should he so desire. Any other motions or papers filed hereafter in contravention of this order shall be subject to summary denial and being stricken from the court file. Furthermore, failure to abide by the court's orders could result in sanctions, including dismissal of this action with prejudice. See Green, 969 F.2d at 917.
IT IS ACCORDINGLY ORDERED that plaintiff's motions objecting to the magistrate's order are denied (Docs. 115, 120, 130, 132).
IT IS FURTHER ORDERED that plaintiff's motion requesting oral argument on his state law supplemental claims is denied (Doc. 134).
IT IS FURTHER ORDERED that plaintiff's motion that he be allowed to wear his own clothing at trial is granted (Doc. 144).
IT IS FURTHER ORDERED that all future papers filed with the court by plaintiff, other than a motion for discharge of counsel, shall be signed by plaintiff's counsel. Failure to abide by this order could result in the imposition of sanctions.
IT IS SO ORDERED.