United States District Court, D. Kansas
P. O'Hara U.S. Magistrate Judge.
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). Because plaintiff offers no reason that
would justify reconsideration of the pretrial order, his
motion is denied.
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. Plaintiff filed
his motion to reconsider 19 days later on July 31,
2018. 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,
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. The undersigned
finds some support for plaintiff's position,
is mindful that plaintiff is proceeding pro se. Thus, without
definitively deciding the question, the undersigned construes
plaintiff's motion as timely filed.
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.” 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.
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
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
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.
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 ...