Cox v. Ann (LNU)

Decision Date14 February 2013
Docket NumberCivil Action No. 12–2678–KHV–GLR.
Citation924 F.Supp.2d 1269
PartiesNicholas A. COX, Plaintiff, v. Ann (LNU), et al., Defendants.
CourtU.S. District Court — District of Kansas


Nicholas A. Cox, Olathe, KS, pro se.

Bradley S. Russell, Tracy M. Hayes, Sanders Warren & Russell LLP, Overland Park, KS, Kirk Thomas Ridgway, Ferree, Bunn, Rundberg, Radom & Ridgway, Chartered, Overland Park, KS, Jeff K. Brown, M. Bradley Watson, Ryan C. Fowler, Scott K. Logan, Thomas R. Pickert, Logan Logan & Watson, LC, Prairie Village, KS, for Defendants.


GERALD L. RUSHFELT, United States Magistrate Judge.

The Court has under consideration two motions filed by pro se Plaintiff Nicolas Cox (Cox or Plaintiff)—a Motion to Compel Cited Case Law (ECF No. 22) and a Motion for Appointment of Counsel (ECF No. 32). The Court also considers Defendant Sheriff's Motion for Leave to File Surreply to Plaintiff's Reply in Support of his Motion to Compel Case Law (ECF No. 39). For the reasons set out below, the Court denies all three motions.

I. Relevant Factual Background

Plaintiff pro se commenced this action by filing a civil complaint in state court. On October 18, 2012, Defendant Frank Denning (Sheriff) filed a notice of removal and paid the filing fee in this case. Defendants have moved to dismiss this action. Plaintiff has thereafter filed various responses and motions, including the two motions under consideration. Defendants oppose both motions 1 and Plaintiff has filed reply briefs.2 In response to a reply brief related to the motion to compel, Defendant Sheriff has moved for leave to file a surreply.3 Plaintiff has responded to that motion. 4 All three motions are ripe for ruling.

II. Motion for Leave to File Surreply

The Sheriff seeks to file a surreply because Plaintiff asserts new allegations and arguments in his reply to the Sheriff's response to the motion to compel case law.5 He wants the Court to consider his surreply [t]o the extent the Court feels clarification of these allegations is pertinent.” 6 Plaintiff opposes the motion.7

In general, the Court “summarily denies or excludes all arguments and issues first raised in reply briefs.” 8 In extraordinary circumstances, the Court may alternatively grant leave to file a surreply on a showing of good cause.9 In this instance the Court finds no good cause for a surreply. It finds no need for clarification of Plaintiff's new allegations. It can simply summarily deny or exclude the new arguments, if that is warranted. The newly asserted arguments, moreover, have no obvious merit to save the motion to compel case law from denial. There is no need for additional briefing on the arguments asserted in the reply brief. Accordingly, the Court denies the motion to file a surreply as unnecessary.

III. Motion to Compel Case Law10

Plaintiff seeks to compel defendants to provide him copies of all case law cited in their court filings. He argues he has no access to unpublished case law or to federal court reporters. He contends that he needs access to cited cases to effectively construe arguments and identify distinguishing facts. He directs the Court to a decision in Case No. 12–CV–2571–KHV–DJW in which Magistrate Judge Waxse granted a similar motion.

Defendants, on the other hand, cite a prior nearly identical action by Cox (Case No. 12–CV2454–EFM–JPO), in which Magistrate Judge O'Hara denied the same type of motion. They argue that despite Plaintiff's professed lack of access to case law, he has cited to cases in his filings in this case and his others. They also submit a list of the legal materials available at Plaintiff's detention facility and a copy of Inmate Orientation Guidelines that provides a process for inmates to obtain legal materials from the Johnson County Law Library. Defendant Sheriff also argues that Plaintiff has no right to case law.

A. Prior Rulings on Similar Motions

In August 2012, Judge O'Hara denied a similar motion, because Cox had failed to show that he was unable to access case law that he wanted produced. 11 The entire motion in that case stated:

Comes Now, the plaintiff Nicholas A. Cox pro se and pursuant to chapter 60 of the Kansas Statutes Annotated that the defendants produce to the Plaintiff the following:

1.) A copy or inspection of any case law cited in its entirety. This includes a copy or inspection any lower court or higher court holdings or that case being cited.

2.) Plaintiff does not have access to case law search engines or complete Shepards citations to access case law freely.

The Plaintiff prays the court grant this request.12

In a related motion to compel discovery in that case, Cox stated that his holding facility lacked “federal court reporters.” 13

In a later attempt to obtain case law in a second case, Cox provided enough information about his alleged inability to access cases to warrant requiring the defendants to show that he had reasonable access to the cases sought. 14 In this second motion, Cox affirmatively stated that [t]he jail law library doesn't have any federal court reporters;” his access “to case law is limited to small excerpts in the United States Code; he lacked access to unpublished decisions quoted by the defendants; and he had “no visible future access” to the case law cited by defendants.15 When the defendants failed to carry their burden regarding reasonable access to the cases sought, Judge Waxse granted the motion to compel case law.16

In granting the motion, Judge Waxse conducted a two-pronged analysis by first considering whether the cited cases were published or unpublished.17 Relying on D. Kan. Rule 7.6(c) and a request by Cox for cited unpublished decisions,18 Judge Waxse ordered the defendants to provide Cox with a copy of all electronically-available unpublished decisions cited in their motions to dismiss and related memoranda.19 With respect to published decisions, Judge Waxse began his analysis by recognizing that no federal or local rule in the District of Kansas requires a party to furnish such decisions to opposing parties.20 But because the movant was an inmate in the custody of the defendant Sheriff, Judge Waxse further recognized that a lack of access to cited case law might implicate the movant's constitutional right of access to the courts.21 Accordingly, he required the Sheriff to either provide Cox with copies of all published cases cited in support of filed motions to dismiss or provide him “with a reasonable means to obtain these cases.” 22 Before doing so, however, Judge Waxse stressed the failures of the Defendant Sheriff to (1) identify the legal research resources available to inmates; (2) dispute the allegation that the jail law library does not have any federal court reporters or that Plaintiff lacked access to cited cases; and (3) provide anything to refute Plaintiff's lack of access allegations.23

B. Implications of Prior Rulings

The two prior rulings on similar motions to compel case law show that the Court may compel a party to provide cited cases when a pro se prisoner movant provides sufficient information that he lacks access to needed cases due to no fault of his own and the opposing parties fail to show that he has reasonable access. The federal courts have the inherent authority to enforce their procedural rules.24 Federal judges, furthermore, “may regulate practice in any manner consistent with federal law, rules adopted under 28 U.S.C. §§ 2072 [ (federal rules of evidence and procedure) ] and 2075 [ (federal bankruptcy rules) ], and the district's local rules.” 25

Compelling a party to provide unpublished decisions cited in their briefs or memoranda is a proper exercise of the Court's inherent authority to enforce its local rules. In addition, because there is nothing inconsistent with any federal law or rule or the local rules of this Court about compelling a party to provide published decisions to a pro se inmate who lacks reasonable access to them, a judge may properly require such production through the general authority to regulate practice pursuant to Fed.R.Civ.P. 83(b). Whether to exercise its inherent authority to enforce its local rules or to otherwise compel a party to provide cases in a given situation is ultimately within the sound discretion of the Court.

The instant motion represents the third stage in the evolution of the briefing by the parties on this type of motion. From the early denial of his first motion by Judge O'Hara, Cox provided additional information so as to avoid a summary denial in Cox II. As in his second motion, Cox here states that he has “no access to unpublished case law and Federal Court Reporters.” While the second motion also contains important information omitted from the current motion, Cox compensates for the omission by directing the Court to the decision by Judge Waxse. Notably, neither his place of incarceration nor his stated access to cases changed between his second motion and the third one now under consideration. The granting of the second motion has prompted the defendants, particularly the Sheriff, to provide greater support for opposing this type of motion.26 Consequently, although Plaintiff has here provided enough information to avoid a quick and summary denial, Defendants have corrected the deficiencies noted by Judge Waxse, so as to distinguish his decision from the facts of the instant motion.

C. Ruling on Instant Motion

The Sheriff argues that Cox has no constitutional right to case law and that fact completely disposes of the instant motion. Given the magnitude of the argument, the Court addresses it first.

Prisoners have a constitutional right to access the courts.27 But the right is limited and simply requires “prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.” 28 No particular methodology is guaranteed—only “the capability of bringing...

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    • U.S. District Court — Western District of Washington
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  • Payne v. United States
    • United States
    • U.S. District Court — District of New Mexico
    • March 11, 2021
    ...under Section 1915. [Doc. 2]. Where a part is not indigent, § 1915(e)(1) does not authorize appointment of counsel. Cox v. LNU, 924 F. Supp. 2d 1269, 1280 (D. Kan. 2013). Therefore, Mr. Payne's request for the Court to appoint Counsel is denied. D. If the United States fails to move for sum......
  • Martinez v. Aulepp
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    • U.S. District Court — District of Kansas
    • January 13, 2016
    ...still unwarranted. In civil cases, generally plaintiffs have no constitutional right to the appointment of counsel. Cox v. LNU, 924 F. Supp. 2d 1269, 1279 (D. Kan. 2013). The court may, however, in its discretion "request an attorney to represent any person unable to afford counsel." 28 U.S......
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    • U.S. District Court — District of Kansas
    • September 1, 2015
    ...849 (10th Cir. 2002); Jackson v. Duckworth, 112 F.3d 878, 880 (7th Cir.) cert. denied, 522 U.S. 955 (1997); see also, Cox v. LNU, 924 F.Supp.2d 1269, 1273 (D.Kan. 2013)(ingeneral, the court denies or excludes all arguments and issues first raised in reply briefs). E. Pro se standards "A pro......
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1 books & journal articles
  • Part two: case summaries by major topic.
    • United States
    • Detention and Corrections Caselaw Quarterly No. 60, June 2014
    • June 1, 2014
    ...of Columbia Department of Corrections) U.S. District Court APPOINTED ATTORNEY IN FORMA PAUPERIS LEGAL MATERIAL LAW LIBRARY Cox v. LNU, 924 F.Supp.2d 1269 (D.Kan. 2013). A state inmate brought a pro se civil rights action in state court. The defendants removed the action to federal court. Th......

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