United States District Court, D. Kansas
MEMORANDUM AND ORDER
E. BIRZER, United States Magistrate Judge
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).
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.
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.
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.
several Defendants filed early motions to dismiss,
sought stays of discovery. Following a hearing in December
2018, the undersigned stayed discovery pending resolution of
the dispositive motions. (See Mem. & Order, ECF
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.)
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.
Motions to Stay Discovery (ECF Nos. 99, 101)
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.
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