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Fraley v. Tranbarger

United States District Court, D. Kansas

November 1, 2018

MARK FRALEY Plaintiff,
KAYLA TRANBARGER, et al., Defendants.


          James P. O'Hara U.S. Magistrate Judge.

         Plaintiff Mark Fraley, who is incarcerated and proceeding pro se, brings this action against defendants for deliberate indifference to his serious medical needs. Before the court is plaintiff's motion for reconsideration of the pretrial order (ECF No. 99).[1] Because plaintiff offers no reason that would justify reconsideration of the pretrial order, his motion is denied.

         Before addressing the merits of plaintiff's motion for reconsideration, the court briefly addresses defendants' argument that plaintiff's motion is untimely. The pretrial order was filed on July 12, 2018.[2] Plaintiff filed his motion to reconsider 19 days later on July 31, 2018.[3] If the pretrial order is construed as a non-dispositive order, plaintiff's motion is untimely under D. Kan. Rule 7.3(b), which sets a 14-day deadline for seeking reconsideration of non-dispositive orders. But if the pretrial order is construed as a dispositive order, plaintiff may be seeking reconsideration under Fed.R.Civ.P. 60, which requires only that such a motion be filed “within a reasonable time.” Plaintiff argues the pretrial order was dispositive because, as defendants recognize, [4] it only included plaintiff's claims and contentions after they had been narrowed by the pretrial process, not as they were pleaded in plaintiff's complaint.[5] The undersigned finds some support for plaintiff's position, [6] and is mindful that plaintiff is proceeding pro se. Thus, without definitively deciding the question, the undersigned construes plaintiff's motion as timely filed.

         Nevertheless, plaintiff's request for reconsideration of the pretrial order is denied. Plaintiff's motion seeks substantial revisions to the pretrial order. For example, plaintiff requests revisions or deletions of more than half of the 34 stipulated facts listed in the order. Plaintiff also asks the court to modify the summary of relief requested by plaintiff to add a request for non-monetary relief in the form of a “referral of an off-site (Prosethodontics [sic] Specialist) for a new (surgical implanted fixed prothetics [sic]) ‘Crown' or ‘bridge' work.”[7] Such a request was not included in plaintiff's complaint or amended complaint. These are just a sample of the changes now requested by plaintiff.

         The court agrees with defendants that these requests come in “the eleventh hour, ” after plaintiff was given ample opportunities to provide input in the preparation of the pretrial order but often didn't; after the input plaintiff did provide was incorporated into the parties' proposed pretrial order; and after the court carefully discussed with the parties at the pretrial conference changes the court would make to the parties' proposed order, without oral objection by plaintiff. The lateness of plaintiff's current requests and the antecedent pattern of silence by plaintiff are illustrated in the following timeline:

November 1, 2017 The scheduling order was filed, setting April 30, 2018, as the deadline for the parties to submit a jointly proposed pretrial order. ECF No. 77.
April 24, 2018 Defense counsel provided plaintiff a proposed pretrial order. That same day, plaintiff telephoned defense counsel, who asked plaintiff to review the proposed pretrial order and let counsel know his proposed revisions.[8]
Plaintiff did not respond.
April 30, 2018 Defense counsel submitted the proposed pretrial order to the undersigned's chambers as an attachment to an e-mail. The e-mail stated defense counsel had not heard back from plaintiff regarding plaintiff's proposed revisions to the proposed order.
May 14, 2018 The undersigned convened what was scheduled to be a pretrial conference. ECF No. 91. Because plaintiff was not prepared to discuss the proposed pretrial order, the undersigned converted the conference to a status conference. The court ordered plaintiff to email to defense counsel, that day, plaintiff's objections to defendants' proposed pretrial order, and the parties to meet the following week to discuss plaintiff's objections. ECF No. 92.
May 14, 2018 Plaintiff e-mailed his objections (dated May 11, 2018) to defense counsel. Although plaintiff logged a number of objections to defendants' draft of the proposed pretrial order, plaintiff did not offer proposed revisions, other than language on the governing law. ECF No. 103-1.[9]
May 17, 2018 Defense counsel, via letter, asked plaintiff to “decide if any of the proposed [factual] stipulations” were acceptable and if “unacceptable in their current form, but you would find them acceptable if certain errors are corrected, ” to “be prepared to identify each such stipulation and the corrections” during the parties' scheduled telephone call. ECF No. 103-2.
May 25, 2018 Plaintiff and defense counsel conferred via telephone and discussed revisions requested by plaintiff.
May 29, 2018 Defense counsel provided plaintiff a “marked-up” copy of the proposed pretrial order indicating changes that had been made at plaintiff's request. ECF No. 103-3. Significantly, this copy indicates plaintiff did not object to factual stipulations that were eventually included in the pretrial order and to which plaintiff only now ...

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