Opinion
Civil Action No. 00-2433-KHV
June 20, 2002
MEMORANDUM AND ORDER
Henry F. Butler brings employment discrimination and retaliation claims against The Boeing Company ("Boeing") under the Civil Rights Act of 1871, 42 U.S.C. § 1981 and 1983. This matter comes before the Court on plaintiff's Objection To Magistrate's Order (Doc. #109) filed April 24, 2002. For reasons set forth below, the Court overrules plaintiff's objection.
On October 4, 2001, the Court ruled that defendant was entitled to judgment on plaintiff's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. as amended and the Kansas Acts Against Discrimination, K.S.A. § 44-1001 et seq. See Memorandum And Order (Doc. #71). The Court also ruled that plaintiff's Section 1981 claims were limited to acts which occurred after October 21, 1997. See id. at 1-2.
Factual Background
In August 2000, Deborah Hughes and The Popham Law Firm filed suit on behalf of plaintiff. In January 2001, Ms. Hughes withdrew her appearance and The Popham Law Firm continued to represent plaintiff. In April 2001, Cortland E. Berry entered his appearance and The Popham Law Firm withdrew. On November 27, 2001, Magistrate Judge Waxse allowed Mr. Berry to withdraw and appointed Alan Rupe to represent plaintiff. See Orders (Docs. #86 and 88). Judge Waxse subsequently allowed Mr. Rupe to withdraw, see Scheduling Order (Doc. #93) filed February 12, 2002, and denied plaintiff's request to appoint new counsel. See Order (Doc. #108) filed April 8, 2002 at 5. Judge Waxse also denied plaintiff's request to stay all deadlines in the case pending appointment of new counsel. See id. at 6. Plaintiff challenges the magistrate judge refusal to appoint new counsel and stay all deadlines pending such appointment.
Magistrate Judge Order
In declining to appoint new counsel, Magistrate Judge Waxse considered three factors. First, he found that plaintiff had not shown that he was financially unable to pay for counsel. See Order (Doc. #103) at 3-4. In this regard, Judge Waxse noted that although plaintiff failed to submit an affidavit, he acknowledged in his brief that he earned $50,174.00 in 2001. See id. at 3. Second, Judge Waxse found that plaintiff had not shown that he had exercised due diligence to secure counsel on his own. See id. at 4-5. Third, Judge Waxse noted that plaintiff's claims appear legally sufficient on their face. See id. at 5. Judge Waxse concluded that although the third factor — legal merit — weighed in favor of appointing counsel, the first two factors — financial ability and due diligence — weighed against appointing counsel. See id. at 4-5. Based on this analysis, Judge Waxse denied plaintiff's request to appoint counsel. See id. at 5. Judge Waxse also noted that plaintiff's misconduct supported his decision. See id. at 5-6. Although plaintiff had repeatedly represented to the Court that he acted pro se, he later acknowledged in his briefs that Mr. Berry had drafted the filings for him. See id.
Judge Waxse also found that the fact that plaintiff represented himself pro se did not constitute good cause to stay all deadlines in the case. See id. at 7. In so finding, Judge Waxse noted that at the time the Court entered the scheduling order, plaintiff knew that he would be proceeding pro se. See id. at 6.
Standards For Review Of Magistrate Judge Non-Dispositive Order
Upon objection to a magistrate judge order on a non-dispositive matter, the district court may modify or set aside any portion of the order which it finds to be "clearly erroneous or contrary to law." Rule 72(a), Fed.R.Civ.P.; 28 U.S.C. § 636(b)(1)(A). The Court does not conduct a de novo review; rather, it applies a more deferential standard under which the moving party must show that the magistrate judge order is "clearly erroneous or contrary to law." Id.; see Burton v. R.J. Reynolds Tobacco Co., 177 F.R.D. 491, 494 (D.Kan. 1997). The Court is required to affirm the magistrate's order unless the entire evidence leaves it "with the definite and firm conviction that a mistake has been committed." Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) (quoting United States v. U.S. Gypsum Co., 333 U.S. 364, 395 (1948)); see Smith v. MCI Telecomm. Corp., 137 F.R.D. 25, 27 (D.Kan. 1991) (district court will generally defer to magistrate judge and overrule only if discretion clearly abused).
Analysis
Plaintiff argues that the magistrate judge should not have allowed Mr. Rupe to withdraw. See Objection To Magistrate's Order (Doc. #109) ¶ 1. Judge Waxse allowed Mr. Rupe to withdraw more than four months ago, on February 12, 2002. See Scheduling Order (Doc. #93). Plaintiff did not object timely to the withdrawal decision. See Rule 72(a), Fed.R.Civ.P. (allowing 10 days to object to non-dispositive magistrate order). Therefore the Court will not review the magistrate decision to allow Mr. Rupe to withdraw from the case. See Lynn v. Simpson, Case No. 97-3209-JWL, 2000 WL 745324, *2 (D. Kan. April 10, 2000).
Next, plaintiff asserts that Boeing waived the right to object to his second counsel request because it did not object to his first counsel request. See Objection To Magistrate's Order (Doc. #109) ¶ 2. Plaintiff cites no authority to support this argument, and the Court is aware of none. The magistrate judge did not err in considering Boeing`s objections to the second counsel request. Plaintiff argues that Judge Waxse held him to a more stringent standard on the second counsel request. See Objection To Magistrate's Order (Doc. #109) ¶¶ 3-7. The Court has broad discretion to decide whether to appoint counsel in a civil case. See Blankenship v. Meachum, 840 F.2d 741, 743 (10th Cir. 1988). In reviewing Judge Waxse's decision, the Court is not left with a firm conviction that a mistake has been committed. See Ocelot Oil, 847 F.2d at 1464. If anything, plaintiff's arguments suggest that Judge Waxse was too lenient in appointing counsel the first time. Plaintiff has not shown that Judge Waxse's decision to deny the second counsel request is clearly erroneous or contrary to law.
Plaintiff contends that Judge Waxse wrongfully accused him of misconduct. Plaintiff asserts that he has acted in good faith at all times. He states that:
Plaintiff stands firm in his position that he has done nothing wrong in signing his pleadings and motions pro se. It is evident that some cases exist that frown upon what is alleged to be "ghostwriting" by an attorney who assists a pro se litigant. However, plaintiff had no knowledge of such cases.
Objection To Magistrate's Order (Doc. #109) ¶ 8. Regardless whether plaintiff engaged in misconduct, the record supports Judge Waxse's decision to deny plaintiff's request to appoint counsel.
Finally, plaintiff asserts that Judge Waxse wrongfully found that he knew that he would be proceeding pro se at the time the Court entered the scheduling order. See Objection To Magistrate's Order (Doc. #109) ¶ 11. Plaintiff contends that Mr. Rupe set the deadlines without his knowledge. See id. Regardless whether plaintiff participated in setting the deadlines, he has not shown good cause to amend them. See Scheduling Order (Doc. #78) filed February 12, 2002 (scheduling order shall not be modified except upon showing of good cause). Judge Waxse did not err in denying plaintiff's request to stay all deadlines in the case.
IT IS THEREFORE ORDERED that plaintiff's Objection To Magistrate's Order (Doc. #109) filed April 24, 2002 be and hereby is OVERRULED.