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Beddow v. Rhodes

United States District Court, D. Kansas

November 19, 2019

KATHY V. BEDDOW, Plaintiff,
JAY RHODES and J. STREEVAL, Defendants.



         Plaintiff Kathy V. Beddow, proceeding pro se, brings this civil rights action against Federal Bureau of Prisons (“BOP”) officials Jay Rhodes and J. Streeval, alleging constitutional claims based on visitation restrictions at the BOP Leavenworth facility where her son is incarcerated. Before the Court are the following motions: (1) Plaintiff's Second Application for Default Judgment Against Defendants (Doc. 63); (2) Plaintiff's Written Objections to Magistrate's Order (Doc. 72); (3) Defendants' Motion for Order Granting Defendants' Motion to Dismiss, or in the Alternative, for Summary Judgment as Uncontested (Doc. 73); (4) Plaintiff's Motion for Extension of Time to Reply to Defendant's Motion to Dismiss or in the Alternative for Summary Judgment (Doc. 74); and (5) Plaintiff's Motion to Stay Summary Judgment and Commence Discovery or in the Alternative for Limited Discovery Related to Defendant's Qualified Immunity Defense (Doc. 75).

         Being duly advised, the Court denies Plaintiff's objections to the Magistrate Judge's orders, denies her motion for default judgment, and denies her requests to lift the discovery stay. The Court denies without prejudice Defendants' motion to grant their dispositive motion as unopposed and grants Plaintiff's request for an extension of time to respond. Plaintiff shall respond to the motion to dismiss or in the alternative for summary judgment no later than December 7, 2019.

         I. Objections to Magistrate Judge Teresa J. James's September 26, 2019 Order

         On September 26, 2019, Judge James conducted a telephonic scheduling conference at which Plaintiff appeared pro se and the Defendants appeared by counsel. The Court orally ruled on two motions filed by Plaintiff, and memorialized the rulings in a detailed minute entry filed after the hearing.[1] Judge James also considered and denied Plaintiff's request that a discovery schedule be set in this case, staying discovery pending this Court's ruling on Defendants' pending motion to dismiss or in the alternative for summary judgment. In her Objections, Plaintiff challenges each of the decisions outlined in Judge James's minute entry.

         Fed. R. Civ. P. 72 allows a party to provide specific, written objections to a magistrate judge's order. With respect to a magistrate judge's order relating to nondispositive pretrial matters such as this minute entry, the district court does not conduct a de novo review; rather, the court applies a more deferential standard by which the moving party must show that the magistrate judge's order is “clearly erroneous or contrary to the law.”[2] Here, Plaintiff argues that all of Judge James's rulings are clearly erroneous. “The clearly erroneous standard applies to factual findings, and ‘requires that the reviewing court affirm unless it on the entire evidence is left with the definite and firm conviction that a mistake has been committed.'”[3] “By contrast, the ‘contrary to law' standard permits ‘plenary review as to matters of law.'”[4] Because Plaintiff proceeds pro se, the Court is mindful that it must construe her pleadings liberally and apply a less stringent standard than that applicable to attorneys.[5]

         A. Motion to Appoint Counsel

         Judge James denied Plaintiff's Second Motion Requesting Assistance with Recruiting Counsel.[6] In that motion, Plaintiff submitted that she was recently diagnosed with dementia, making it difficult to prosecute her case. She attached two documents that had not been previously submitted: (1) her own declaration attesting to her efforts to locate counsel and stating that she had “been recently diagnosed with dementia, and further testing is ongoing to determine what stage I am currently in, and the pace of the progression, ”[7] and that her doctor had diagnosed her with mild cognitive impairment “and perhaps suggestive of late onset vascular dementia”;[8]and (2) an August 5, 2019 unsigned letter from her doctor in support of her declaration. The doctor's letter included a recommendation for a change in living circumstances for safety reasons given her smoking history and “mild problems with short-term memory.”[9] It directed Plaintiff to schedule a visit to discuss the letter in more detail.

         Judge James explained that this was Plaintiff's third request for appointment of counsel; she therefore construed the motion as an improper second attempt to reconsider her first order denying appointment of counsel, and denied the motion under the standards that apply to motions to reconsider. Specifically, Judge James noted that the doctor's letter-new evidence- was unsigned, and found that Plaintiff's attachments were insufficient to demonstrate that she was mentally incompetent and therefore unable to represent herself in this case. Judge James further observed that Plaintiff has repeatedly demonstrated her ability to follow the rules and procedures of this Court in prosecuting her case.

         Plaintiff objects to Judge James's denial of her third request for appointment of counsel, claiming that Judge James ignored her declaration and that Plaintiff could not submit further documentation about her illness due to time constraints. Having carefully reviewed Judge James's many orders denying appointment of counsel, [10] this Court overrules and denies Plaintiff's objection. Judge James carefully considered the applicable factors relevant to whether appointment of counsel is warranted in this case.[11] There is no clear error in her original determination.

         On reconsideration, Plaintiff was required to show that her new evidence supported her request for appointment of counsel.[12] The Court finds no clear error in Judge James's determination that this new evidence does not require reconsideration of her decision to deny Plaintiff's motion to appoint counsel. Judge James's original decision emphasized the fact that Plaintiff's case does not involve complicated legal or factual issues, and that with sufficient preparation, Plaintiff can adequately represent herself in this case. Judge James noted the many motions filed at that point by Plaintiff, which indicated her ability to grasp the rules and procedures of this Court without legal assistance. Indeed, Plaintiff's motions and filings have continued since her August 5, 2019 declaration. Under the deferential standard of review that this Court applies to Plaintiff's objection, this Court finds that Judge James's ruling was neither clearly erroneous nor contrary to law. Plaintiff's objection to the denial of her motion to reconsider appointment of counsel is overruled and denied.

         B. Motion to Appoint Guardian Ad Litem

         Plaintiff argues that in the absence of appointed counsel, she is entitled to have her son appointed as next friend in this matter, again citing health issues. Under Fed.R.Civ.P. 17(c)(2), “[t]he court must appoint a guardian ad litem-or issue another appropriate order-to protect a minor or incompetent person who is unrepresented in an action.” The district court should undertake a duty of inquiry as to whether there is a “viable basis to invoke Rule 17, ” by determining whether there is “verifiable evidence of incompetence.”[13] Verifiable evidence of incompetence includes:

evidence from an appropriate court of record or a relevant public agency indicating that the party had been adjudicated incompetent, or . . . verifiable evidence from a mental health professional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent.[14]

         It was neither clearly erroneous nor contrary to law for Judge James to conclude that the doctor's letter submitted by Plaintiff was insufficient to show that she is legally incompetent. Judge James fully considered this letter in an earlier motion denying Plaintiff's request to allow her incarcerated son to be present during the scheduling conference.[15] She noted that the letter indicated mild problems with short-term memory, but did not indicate that Plaintiff was unable to represent herself in this action. These findings were not clearly erroneous. The letter is not from a mental health professional retained to determine Plaintiff's legal competency. Finally, the Court notes that even if Plaintiff was determined to be legally incompetent and thus entitled to appointment of a next friend, the Court is not required to appoint her son, who is currently incarcerated, to represent her in that capacity. Plaintiff's objection to Judge James's order denying her request for appointment of a guardian ad litem is therefore overruled and denied.

         C. Order Holding ...

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