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Couser v. Somers

United States District Court, D. Kansas

June 28, 2019

WENDY COUSER, Plaintiff,
v.
CHRIS SOMERS, et al., Defendants.

          MEMORANDUM AND ORDER

          GWYNNE E. BIRZER, United States Magistrate Judge

         This matter is before the Court on the Motion to Stay Discovery pending appeal filed by Defendant Chad Gay (ECF No. 99); the motion filed by the Newton Defendants joining Gay's request to stay (ECF No. 101); Defendant Jason Achilles' Response offering no opposition to a stay (ECF No. 104); and Plaintiff's Response opposing a stay (ECF No. 103). On June 20, 2019, the Court held a conference to discuss the pending motions. Participating were the following counsel:

• Joshua Loevy (for Plaintiff);
• J. Steven Pigg (for Chris Somers);
• Edward Keeley (for Anthony Hawpe, Skyler Hinton, and City of Newton);
• Charles Millsap (for Jason Achilles); and • Toby Crouse (for Chad Gay).

         After review of the parties' briefing and considering the arguments of counsel, Defendants' Motions to Stay (ECF Nos. 99 and 101) were GRANTED IN PART by oral ruling at the hearing. This written opinion memorializes that ruling.

         I. Background[1]

         The facts underlying this action have been explored in detail in earlier opinions and will not be belabored here. Summarily, Plaintiff Wendy Couser filed this 42 U.S.C. § 1983 and § 1988 civil rights case individually and as administrator of the estate of her son, Matthew Holmes. Mr. Holmes died in August 2017 after leading officers on a high-speed pursuit in central Kansas, after which a confrontation ensued between he and officers of at least three law enforcement agencies: the City of Newton, Harvey County, and McPherson County. Plaintiff claims her son suffered from schizophrenia and was unarmed at the time of his death. According to Plaintiff, he exited his vehicle with his hands up in surrender, but the officers both beat him and shot him, then they failed to render medical care. Defendants claim Holmes was confrontational and attempted to grab an officer's service weapon before he was shot. Defendants allege multiple officers provided medical treatment after the shooting and claim there are numerous video recordings (from officers' dash and body cameras) of the incident which support their version of the events.

         Plaintiff initially sued multiple law enforcement officers from the three involved agencies. Defendants Anthony Hawpe, Skyler Hinton, and the City of Newton are collectively referenced as the “Newton defendants.” Defendants Chad Gay, in his individual and official capacity as Sheriff of Harvey County, Harvey County Sheriff's Office, and Harvey County are denoted the “Harvey County defendants.” Defendants Jason Achilles, Jerry Montagne, McPherson County, and McPherson County Sheriff's Office are collectively referred to as the “McPherson County defendants.” Defendant Chris Somers is the McPherson County Sheriff's Deputy who fired the shot, and is sued and defending the case individually. The Complaint also names unknown officers from each of the three entities, bringing the case to an initial total of at least 14 defendants.

         After several Defendants filed early motions to dismiss, [2] all sought stays of discovery. Following a hearing in December 2018, the undersigned stayed discovery pending resolution of the dispositive motions. (See Mem. & Order, ECF No. 87.)

         In April 2019, District Judge John W. Broomes granted in part and denied in part the motions to dismiss. Jerry Montagne, McPherson County and McPherson County Sheriff's Department, and Harvey County and Harvey County Sheriff's Department were dismissed from the case. Although Judge Broomes also granted the majority of the Harvey County Defendants' motion to dismiss, including the personal capacity claim against Sheriff Gay, he denied Gay's claim of Eleventh Amendment immunity on the official capacity claim against him. (Mem. & Order, ECF No. 88.)

         Upon filing of the decision on the dispositive motions, the undersigned set this matter for a scheduling conference. (Initial Order, ECF No. 89.) After the scheduling conference was ordered, Defendant Gay appealed Judge Broomes' order to the Tenth Circuit Court of Appeals. (ECF No. 90.) That appeal is now pending. Soon after filing his appeal, Defendant Gay filed his motion to stay discovery pending resolution of that appeal. (ECF Nos. 99, 100.) Following Gay's motion, the Newton Defendants joined in the request for stay with their own motion (ECF No. 101), and Defendant Achilles filed his non-opposition to a stay (ECF No. 104). After considering all briefings and hearing the arguments of counsel, the Court determined a partial stay of discovery is appropriate, for the reasons that follow.

         II. Motions to Stay Discovery (ECF Nos. 99, 101)

         Defendant Gay seeks a stay of all discovery pending his appeal on the issue of Eleventh Amendment immunity (ECF Nos. 99, 100). He argues the appeal divests this Court of jurisdiction over him and requires continuation of the stay. He contends any “aspect of the case” which could or does involve either himself or Eleventh Amendment issues must be stayed pending resolution of his appeal. And, because all claims in this case involve a common nucleus of facts-the same incident involving all Defendants-if any discovery were to proceed, Gay and his counsel would either incur the expense and burden of monitoring and participating in discovery of other claims or bear the risks of not participating in litigation activities which could ultimately be relevant to Gay.

         The Newton Defendants, although not involved in the appeal, also seek a stay. (ECF No. 101.) They do not assert any additional contentions, but merely incorporate the arguments asserted by Gay. Similarly, Defendant Achilles joins in the motions to stay (ECF No. 104) but makes no individual arguments. Defendant Chris Somers did not formally weigh in on the stay issue, ...


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