Opinion
Civil Action No. 19-cv-02278-CMA-KLM
11-23-2020
KENNETH LESLIE CALDWELL, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on Plaintiff's Notice of Change of Address and Motion for a Forced Expeditious Payment [#23]; on Plaintiff's Emergency Document to Compel Action of Mandamus or Application for Writ of Execution [#24]; on Plaintiff's Notice and Motion [#25]; on Plaintiff's Motion to Seal Documentation and for Protection and Rights [#32]; and on Plaintiff's Victim Impact Statement, Motions for Judgment and Motion for Stipulation [#37]. Plaintiff proceeds as a pro se litigant.
"[#23]" is an example of the convention the Court uses to identify the docket number assigned to a specific paper by the Court's case management and electronic case filing system (CM/ECF). This convention is used throughout this Order.
The Court must construe liberally the filings of pro se litigants. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not be the pro se litigant's advocate, nor should the Court "supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his] behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citing Hall, 935 F.2d at 1110). In addition, pro se litigants must follow the same procedural rules that govern other litigants. Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).
A. Motion for a Forced Expeditious Payment [#23]
In this Motion, Plaintiff states: "I did work for proof that I am entitled to money and submitted it to the court, and there is no just cause to not pay me and leave me more vulnerable to death and harm by allowing me to be poor, so I therefore hereby motion for a forced expeditious payment from the media company or media companies who are relevant to this case, from any lower system of government relevant to this case, from any higher system of government relevant to this case, or from any combination thereof." Motion [#23] at 3.
As the Court has previously stated, see Order [#15] at 3-4, the Court has no funds to "pre-pay" a litigant any sum he believes he will ultimately be awarded at the conclusion of legal proceedings against a defendant, and, indeed, the law simply does not permit such premature judgment of the merits of a plaintiff's claims. The Court also notes that the mere fact that an entity may be "relevant" to a case does not mean that Plaintiff may obtain money from that entity; rather, Plaintiff must name as a defendant any entity which he believes is liable to him, and then Plaintiff must either succeed at trial or enter into a monetary settlement with the defendant in order to obtain some or all of the requested money. Litigation is never a quick way to obtain money. Defendant has not yet even entered an appearance in this matter. Plaintiff's lawsuit must proceed through the system like every other lawsuit filed in the District of Colorado, so that the rights of all parties to the litigation are protected. The Court is separately issuing a Minute Order explaining Plaintiff's next steps in this litigation.
Accordingly, the Court recommends that Plaintiff's Motion for a Forced Expeditious Payment [#23] be denied to the extent he seeks such immediate relief.
B. Motion to Compel Mandamus or Application for Writ of Execution [#24]
Here, Plaintiff states: "There is no cause for justice to wait a single more day to grant me the money I am entitled to, and if the court disagrees with me I demand a complete and thorough reason why it is justice. . . . Please grant me $28,600,000 without delay." Motion [#24] at 1-2. For the same reasons stated above in connection with Motion [#23], the Court recommends that Plaintiff's Motion [#24] be denied to the extent he seeks such immediate relief.
C. Notice and Motion [#25]
Here, Plaintiff states: "By F.R.C.P. Rule 54, 55, 56, 57, or any combination thereof, I hereby motion for an entry of default, default judgment, summary judgment, declaratory judgment, or any combination thereof. Though it has not yet been 60 days since my Amended Complaint of 2/20/2020 was submitted and served, I file this motion now as a gesture to the point that ignorance is not helping me." Motion [#25] at 3. For the same reasons stated above in connection with Motion [#23], the Court recommends that Plaintiff's Motion [#25] be denied to the extent he seeks such immediate relief.
D. Motion to Seal Documentation and for Protection and Rights [#32]
First, Plaintiff asks the Court "to seal any documentation of this case if that documentation anywhere in it mentions anything about me getting raped or sexually assaulted . . . ." Motion [#32] at 1 (citing Fed. R. Civ. P. 5.2). Public access to documents is governed by D.C.COLO.LCivR 7.1. Pursuant to that Local Rule, a motion to restrict public access shall identify the document(s) for which restriction is sought. Plaintiff notes that he "was advised by counsel court referred me to that I can refer back to work previously done." Motion [#32] at 1. While this is generally true, Plaintiff must do so with specificity. In other words, Plaintiff must identify by docket number and page number what he believes should be restricted from public view. The Court will not review the docket to examine every page submitted by Plaintiff to date to see what may fall into Plaintiff's broad request. Accordingly, the Motion [#32] is denied without prejudice to the extent Plaintiff seeks restriction of any documents filed in this case.
Second, Plaintiff "also motion[s] for protection, money, privileges, immunities, and rights to life, liberty, and property, because if I am without protection, money, and rights, I am unlawfully denied equal protection of laws and rights, pursuant to laws like 18 U.S.C. § 242, [d]eprivation of rights under color of law, especially since I have already submitted affidavits, certifications, and declarations." Motion [#32] at 1 (citing Fed. R. Civ. P. 55, 56, 56(f)(1), 56(f)(2), and 56(f)(3)). For the same reasons stated above in connection with Motion [#23], the Court recommends that Plaintiff's Motion [#32] be denied to the extent he seeks such immediate relief.
E. Motions for Judgment and Motion for Stipulation [#37]
First, Plaintiff "motion[s] for a different magistrate judge as I disagree with the order of document #15 . . . ." Motion [#37] at 3. Pursuant to 28 U.S.C. § 455(a), a Magistrate Judge shall disqualify herself "in any proceeding in which [her] impartiality might reasonably be questioned." The purpose of the statute is not to provide litigants with "a veto power over sitting judges, or a vehicle for obtaining a judge of their choice." Cooley, 1 F.3d at 993. "[A] judge has a strong duty to sit when there is no legitimate reason to recuse." Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 659 (10th Cir. 2002) (citation omitted). Here, Plaintiff's only basis for recusal is disagreement with an Order [#15] issued by the undersigned (with no indication regarding how or why he disagrees with that Order [#15]). Motion [#37] at 3. However,"adverse rulings against a litigant cannot in themselves form the appropriate grounds for disqualification." Green v. Dorrell, 969 F.2d 915, 919 (10th Cir. 1992); see also Estate of Bishop v. Equinox Int'l Corp., 256 F.3d 1050, 1058 (10th Cir. 2001) ("Factors that do not merit disqualification include . . . prior rulings that were adverse to the moving party."); Liteky v. United States, 510 U.S. 540, 555 (1994) ("Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion."). Simply put, there is no reason why the undersigned's impartiality might objectively or reasonably be questioned in this case, and therefore the Motion [#37] is denied with respect to Plaintiff's request for a different Magistrate Judge.
Plaintiff also "motion[s] for stipulation for negotiations toward settlement for me to obtain $14,300,000.00 (Fourteen Million Three Hundred Thousand Dollars) if there is no judgment so ordering closure soon enough." Motion [#37] at 5. However, as indicated above, Defendant has not yet entered an appearance in this matter, and therefore any such settlement negotiations undertaken through this lawsuit are premature. Accordingly, the Motion [#37] is denied without prejudice with respect to Plaintiff's stipulation for negotiations.
Of course, Plaintiff may, at any time, attempt to informally resolve this dispute out of court. --------
Otherwise, Plaintiff's Motion [#37] generally seeks the same relief discussed in most of his other motions at issue in this Order, i.e., entry of judgment in his favor and an immediate award of money. For the same reasons stated above in connection with Motion [#23], the Court recommends that Plaintiff's Motion [#37] be denied to the extent he seeks such immediate relief.
F. Conclusion
Based on the foregoing,
IT IS HEREBY ORDERED that the Plaintiff's Motion to Seal Documentation and for Protection and Rights [#32] is DENIED without prejudice in part to the extent Plaintiff seeks restriction of any documents filed in this case.
IT IS FURTHER ORDERED that Plaintiff's Motions for Judgment and Motion for Stipulation [#37] is DENIED in part to the extent Plaintiff requests assignment of a different Magistrate Judge.
IT IS FURTHER ORDERED that Plaintiff's Motions for Judgment and Motion for Stipulation [#37] is DENIED without prejudice in part with respect to Plaintiff's stipulation for negotiations.
IT IS FURTHER RESPECTFULLY RECOMMENDED that the following Motions be DENIED: (1) Plaintiff's Motion for a Forced Expeditious Payment [#23]; (2) Plaintiff's Emergency Document to Compel Action of Mandamus or Application for Writ of Execution [#24]; (3) Plaintiff's Notice and Motion [#25]; (4) the remainder of Plaintiff's Motion to Seal Documentation and for Protection and Rights [#32]; and (5) the remainder of Plaintiff's Motions for Judgment and Motion for Stipulation [#37].
IT IS FURTHER ORDERED that pursuant to Fed. R. Civ. P. 72, the parties shall have fourteen (14) days after service of this Recommendation to serve and file any written objections in order to obtain reconsideration by the District Judge to whom this case is assigned. A party's failure to serve and file specific, written objections waives de novo review of the Recommendation by the District Judge, Fed. R. Civ. P. 72(b); Thomas v. Arn, 474 U.S. 140, 147-48 (1985), and also waives appellate review of both factual and legal questions. Makin v. Colo. Dep't of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse, 91 F.3d 1411, 1412-13 (10th Cir. 1996). A party's objections to this Recommendation must be both timely and specific to preserve an issue for de novo review by the District Court or for appellate review. United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996).
Dated: November 23, 2020
BY THE COURT:
/s/
Kristen L. Mix
United States Magistrate Judge