United States District Court, D. Kansas
JOE C. STUART, JR., Plaintiff,
ADVANCED CORRECTIONAL HEALTHCARE, INC., et al., Defendants.
MEMORANDUM AND ORDER
D. Crabtree, United States District Judge
matter comes before the court on plaintiff's
“Objection to Magistrate Judges Ruling” (Doc.
88). Plaintiff objects to the Order (Doc. 80) issued by
Magistrate Judge David J. Waxse finding as moot
plaintiff's Motion to Compel Discovery (Doc. 29). For the
reasons explained below, the court overrules plaintiff's
objection and affirms Judge Waxse's decision.
26, 2016, pro se plaintiff Joe C. Stuart filed a motion to
compel discovery. Doc. 29. In his Motion to Compel, plaintiff
requested records from defendant Advanced Correctional
Healthcare, Inc. (“ACH”). Id.
Specifically, plaintiff requested production of his medical
records, names of doctors, and other information about inmate
healthcare at the Leavenworth County Jail. Id.
Defendant ACH responded by producing the discovery plaintiff
had demanded, albeit two weeks after its deadline had passed.
Defendant ACH asserted the two-week delay was not unduly
prejudicial. Doc. 34. Plaintiff filed a reply to
defendant's Response to Plaintiff's Motion to Compel
Discovery asserting that defendant ACH objected to 15
interrogatories and 11 of those objections were based on
relevance. Doc. 34. Next, plaintiff filed a First Amended
Complaint adding allegations of other
“occurrences” at the Leavenworth County Jail.
Doc. 59. He believes his amended pleading makes the requested
discovery relevant. On February 8, 2017, Magistrate Judge
Waxse held that plaintiff's Motion to Compel (Doc. 29)
was moot because defendant ACH had provided answers to the
interrogatories. Judge Waxse also found plaintiff sustained
no prejudice by the two-week delay. Doc. 80.
17, 2017, five months after the Clerk of the Court mailed
Judge Waxse's Order to plaintiff, he filed his objection
to the Order. Plaintiff asserts that defendant ACH failed to
produce records associated with the Leavenworth County Jail
when it answered the interrogatories and request for
production of documents. Doc. 88. Plaintiff asserts the
discovery is relevant because his Amended Complaint includes
“additional allegations of occurrences at the
Leavenworth County Jail.” Id. Defendant ACH
never responded to plaintiff's objection to the
magistrate judge's order.
Standard of Review
party brings its lawsuit pro se, the court construes the
party's pleadings liberally and holds them to a less
stringent standard than formal pleadings drafted by lawyers.
See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.
1991). But the court does not assume the role of a pro se
litigant's advocate. Id. Also, plaintiff's
pro se status does not excuse him from “the burden of
alleging sufficient facts on which a recognized legal claim
could be based.” Id. Nor is a pro se litigant
relieved from complying with the rules of the court or facing
the consequences of noncompliance. Ogden v. San Juan
Cty., 32 F.3d 452, 455 (10th Cir. 1994) (citing
Nielsen v. Price, 17 F.3d 1276, 1277 (10th Cir.
Civ. P. 72(a) allows a party to provide specific, written
objections to a magistrate judge's order “within 14
days after being served with a copy.” When reviewing a
magistrate judge's order deciding nondispositive pretrial
matters, the district court applies a “clearly
erroneous or contrary to law” standard of review.
See First Union Mortg. Corp. v. Smith, 229 F.3d 992,
995 (10th Cir. 2000) (quoting Ocelot Oil Corp. v. Sparrow
Indus., 847 F.2d 1458, 1461-62 (10th Cir. 1988)); 28
U.S.C. § 636(b)(1)(A); Fed.R.Civ.P. 72(a). Under the
clearly erroneous standard, the district court does not
conduct a de novo review of the factual findings; instead,
the district court must affirm a magistrate judge's order
unless a review of the entire evidence leaves it “with
the definite and firm conviction that a mistake has been
committed.” Ocelot Oil Corp., 847 F.2d at
1464. In contrast, “the contrary to law” standard
permits the district court to conduct an independent review
of purely legal determinations made by the magistrate judge.
Sprint Commc'ns Co. L.P. v. Vonage Holdings
Corp., 500 F.Supp.2d 1290, 1346 (D. Kan. 2007)
(citations omitted). A magistrate judge's order is
contrary to law if it “fails to apply or misapplies
relevant statutes, case law or rules of procedure.”
Walker v. Bd. of Cty. Comm'rs of Sedgwick Cty.,
No. 09-1316-MLB, 2011 WL 2790203, at *2 (D. Kan. July 14,
2011) (quotation omitted).
objects to the magistrate judge's order mooting his
Motion to Compel. Plaintiff asserts that defendant ACH
failed to produce relevant documents. But the record shows
that plaintiff's objection to Judge Waxse's Order is
untimely. Our circuit has adopted “a firm waiver rule
when a party fails to object to the findings and
recommendations of the magistrate.” Moore v. United
States, 950 F.2d 656, 659 (10th Cir. 1991). Fed.R.Civ.P.
72(a) clearly states: “A party may serve and file
objections to [a Magistrate Judge's] order within 14 days
after being served with a copy. A party may not assign as
error a defect in the order not timely objected to.”
Plaintiff's failure to object timely waives trial court
review. Id. Two exceptions preclude application of
the waiver rule that apply when: “(1) a pro se litigant
has not been informed of the time period for objecting and
the consequences of failing to object or when (2) the
‘interests of justice' require review.”
Morales-Fernandez v. I.N.S., 418 F.3d 1116,
1119 (10th Cir. 2005); Fottler v. United States, 73
F.3d 1064, 1065 (10th Cir. 1996).
neither exception applies to plaintiff's untimely
objection. Plaintiff is a pro se litigant and the text entry
order never cited Rule 72's requirement to file an
objection within 14 days. But earlier, the court had advised
him of the time period that applies to filing objections to a
magistrate's order. See Doc. 14 at 3. That order
also advised plaintiff of the consequences of failing to file
a timely objection. Id. at 3 (“a party must
file any objections within the 14-day period if the party
wants to have appellate review of the Order.”). Here,
the Clerk of the Court served plaintiff with a copy of Judge
Waxse's Order many months before he filed his objection.
Judge Waxse's Order was served by “mailing it to
[plaintiff's] last known address-in which event service
[was] complete upon mailing.” Fed.R.Civ.P. 5(b)(2)(C);
see also ReVoal v. Brownback, No. 14-4076, 2014 WL
5321093, at *1 (D. Kan. Oct. 16, 2014). That mailing occurred
on February 8, 2017, when the Order was mailed to plaintiff
by regular mail. See Doc. 80. The time for plaintiff
to file any objections to the Order expired well before he
filed his objection on July 17, 2017. Plaintiff's
deadline for responding is extended by three days under
Fed.R.Civ.P. 6(d), because service was made by mail. Even
adding these three additional days to the 14-day response
time, the deadline for responding to Judge Waxse's Order
expired nearly five months before plaintiff filed his
the interests of justice do not require review of
plaintiff's waiver. The Tenth Circuit has considered
factors such as “a pro se litigant's effort to
comply, the force and plausibility of the explanation for his
failure to comply, and the importance of the issues
raised.” Morales-Fernandez, 418 F.3d
at 1120. Here, plaintiff made no effort to comply with the
time limit, nor did he ask for an extension of time to file
an objection. He also never explains why is objection is
importance of the issue raised is irrelevant. Even if
plaintiff had filed a timely objection, his objection fails
to show the magistrate judge's order was contrary to law.
Courts typically do not consider new arguments and new
evidence raised in objections to a magistrate judge's
orders. See Parks v. Persels & Assocs., LLC, 509
B.R. 345, 357 (D. Kan. 2014). Plaintiff made no relevance
objection in his Motion to Compel. Doc. 29. Instead, he just
asked defendant to produce certain documents-ones that
defendant ACH eventually produced, thereby mooting
plaintiff's Motion to Compel. Id.
Plaintiff's argument that the discovery is relevant
arises from “additional allegations” raised in
his First Amended Complaint, filed on November 15, 2016, some
four months after plaintiff filed his Motion to Compel.
Id.; Doc. 88. So, plaintiff raised the relevancy
issue for the first time in his Objection to Magistrate
Judges Ruling. Doc. 88. Judge Waxse never could have
addressed these arguments-ones that arose after plaintiff
filed and Judge Waxse ruled the Motion to Compel. Even if the
court treated plaintiff's objection as timely filed, the
court still overrules it because Judge Waxse did not act
contrary to law when he decided the Motion to Compel was
IS THEREFORE ORDERED BY THE COURT THAT
plaintiff's “Objection to Magistrate Judges