Cahail et al v. United States of America, The et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
KAREN CAHAIL, individually and as
administrator of the estate of GALEN CAHAIL,
deceased, et al.,
Plaintiffs,
v. 	Case No. 25-1016-JWB
UNITED STATES OF AMERICA,
et al.,
Defendants.
MEMORANDUM AND ORDER
This matter is before the court on several objections by Plaintiffs and their corresponding
appeal of Magistrate Judge Brooks G. Severson’s orders denying Plaintiffs’ motions and a report
and recommendation (“R&R”) that recommends dismissal of Plaintiffs’ complaint. (Docs. 41, 45,
481 .) 	The court will address each in turn. As of the date of this order, Plaintiffs have filed a third
amended complaint, with the magistrate judge withdrawing her recommendation of dismissal.
(Docs. 56, 57.) That complaint survived screening. (Doc. 58.)
On a dispositive matter the district judge “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3). A
failure to properly object, however, leaves a party with no entitlement to appellate review, and
allows the district court to review the R&R under any standard it deems appropriate. See Williams
v. United States, No. 19-2476-JAR-JPO, 2019 WL 6167514, at *1 (D. Kan. Nov. 20, 2019) (citing
1 The court notes that the objections lodged at Doc. 48 are substantively identical to those at Doc. 45. In fact, the
filings are identical in every respect, except that Plaintiff has added her signature to the bottom of the filing at Doc.
48. Therefore, the court’s analysis below covers the filings at both docket entries.
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United States v. One Parcel of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996)) (“The Tenth
Circuit requires that objections to a magistrate judge's recommended disposition ‘be both timely
and specific to preserve an issue for de novo review by the district court . . .’”).
Because Plaintiffs are proceeding pro se, the court is to liberally construe her filings. United
States v. Pinson, 585 F.3d 972, 975 (10th Cir. 2009). However, liberally construing filings does
not mean supplying additional factual allegations or constructing a legal theory on Plaintiff's
behalf. Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
Plaintiffs object to the R&R from the magistrate judge (Doc. 42), which denied Plaintiffs’
motions for leave to amend their complaint, for recusal, for appointment of counsel, and for
consolidation of cases. The court overrules all of these objections. In Plaintiffs’ filing (Doc. 45),
they spend much of their submission arguing about the recommendation of dismissal, but as
explained below, that recommendation was later withdrawn. 	(Doc. 56.) 	The other objections
Plaintiffs raise in the title of their filing are not argued much at all in the body of their motion. See
(Doc. 45.) Despite this possibly amounting to waiver of those issues, United States v. One Parcel
of Real Prop., 73 F.3d 1057, 1060 (10th Cir. 1996) 2 , the court briefly addresses each objection
below. Still, Plaintiffs’ objection to the order denying the request to consolidate cases is not argued
at all, and therefore the court treats that objection as waived.
2 “We agree with these holdings of our sister circuits, because only an objection that is sufficiently specific to focus
the district court's attention on the factual and legal issues that are truly in dispute will advance the policies behind the
Magistrate's Act that led us to adopt a waiver rule in the first instance. Therefore, we hold that a party's objections to
the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo
review by the district court or for appellate review. With one exception, the objections filed by appellants here were
not sufficiently specific to preserve any issue for appellate review. See Lockert v. Faulkner, 843 F.2d 1015, 1019 (7th
Cir. 1988) (‘Just as a complaint stating only “I complain” states no claim, an objection stating only “I object” preserves
no issue for review.’).” One Parcel of Real Prop., 73 F.3d at 1060.
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First, Plaintiffs object to the denial of appointment of counsel. (Doc. 45 at 4.) Plaintiffs
argue that their objection is “based on the need to correct clear error and prevent manifest
injustice.” 	(Id.) 	Plaintiffs claim they are procedurally vulnerable because of “PTSD related”
symptoms. (Id. at 5.) As the magistrate judge reiterated in a more recent order, this is not a basis
for appointment of a counsel. (Doc. 70.) Plaintiff has moved for appointment of counsel several
times in this case, and each has been denied. 	(Id.) 	The court sees no error on the part of the
magistrate judge that would justify upsetting those orders.
There is “no constitutional right to appointed counsel in a civil case.” Durre v. Dempsey,
869 F.2d 543, 547 (10th Cir. 1989). District courts do have discretion to request counsel for an
indigent civil party. McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). The Tenth Circuit
has applied a four-factor balancing test when conducting this analysis. 	A district court should
consider: “(1) plaintiff’s ability to afford counsel; (2) plaintiff’s diligence in searching for counsel;
(3) the merits of plaintiff’s case . . . [and (4)] plaintiff’s capacity to prepare and present the case
without the aid of counsel.” Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1420-21
(10th Cir. 1992). 	The magistrate judge found that the first two factors weighed in favor of
Plaintiffs. (Doc. 42 at 8.)
That said, this court agrees with the magistrate judge that there are “serious concerns as to
the viability of Plaintiffs’ claims in federal court.” 	(Id.) 	Despite Plaintiffs’ claims having now
survived screening the court still shares these concerns. Lastly, the court agrees with the magistrate
judge that there is “no basis to distinguish Plaintiffs from the many other untrained individuals
who represent themselves pro se on various types of claims in courts throughout the United States
in any given day.” (Id.) “Thoughtful and prudent use of the appointment power is necessary so
that willing counsel may be located without the need to make coercive appointments. The
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indiscriminate appointment of volunteer counsel to undeserving claims will waste a precious
resource and may discourage attorneys from donating their time.” Castner, 979 F.2d at 1421. And
make no mistake about it, unlike in a criminal case, attorneys appointed in a civil case are not paid
out of taxpayer funds. In most instances, they are made to work for free. That is one of the main
reasons that appointing counsel must be done sparingly, and generally only in cases that have some
obvious merit. As a consequence, Plaintiffs’ objections are denied.
Finally, the court addresses Plaintiffs’ objections to the denial of their request for the
magistrate judge to recuse herself. (Doc. 45 at 5.) Plaintiffs allege that the magistrate judge has
shown prejudice towards them because she has criticized the length of Plaintiffs’ filings while also
insisting that Plaintiffs include the relevant information in their amended complaints. 	(Id.) 	A
judge must recuse where “impartiality might reasonably be questioned.” 28 U.S.C. § 455 (a). This
is an objective inquiry. United States v. Cooley, 1 F.3d 985, 992 (10th Cir. 1993.) It “is limited
to outward manifestations and reasonable inferences drawn therefrom.” 	Id. at 993. 	Plaintiffs’
unhappiness with rulings against them does not demonstrate unfairness or prejudice, and Plaintiffs
present no other argument for the magistrate judge’s recusal. (Doc. 45 at 5.) As the magistrate
judge explained in her order, Plaintiffs’ request to recuse stems from disappointment that the
magistrate judge has ruled against them on several issues. (Doc. 42 at 6-7.) The court agrees with
the magistrate judge that “disagreeing with a party is not a basis for recusal.” 	Ward v. Wesley
Medical Center, L.L.C., No. 23-CV-1091, 2024 WL 580149 at *4 (D. Kan. Feb. 13, 2024.)
Plaintiffs also object to the R&R where it recommends that their second amended
complaint be dismissed. 	(Docs. 31, 45, 48.) 	Plaintiffs’ objections to the recommendation of
dismissal are OVERRULED as moot because the magistrate judge’s R&R was later withdrawn
(Doc. 56) as Plaintiffs were granted leave to amend their complaint. See (Docs. 56, 57.) As noted
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above, Plaintiffs have since filed a third amended complaint. (Doc. 57.) For the same reason, the
court also OVERRULES as moot Plaintiffs’ objections regarding leave to amend. (Doc. 45.)
Plaintiffs’ earlier objection to the magistrate judge’s denial of appointment of counsel
(Doc. 41), is OVERRULED because it was filed well outside the 14-day window allotted to
Plaintiffs to object to the magistrate judge’s order. Judge Severson’s order was filed on May 29,
2025. (Doc. 20.) Plaintiffs did not file objections until nearly two months later on July 23, 2025.
(Doc. 41.) Accordingly, the objection is untimely and OVERRULED.
In light of the foregoing, the court OVERRULES Plaintiffs’ objections to the orders of the
magistrate judge. (Docs. 41, 45, 48.)
IT IS SO ORDERED. Dated this 21st day of November 2025.
s/ John Broomes
JOHN W. BROOMES
CHIEF 	UNITED 	STATES 	DISTRICT
JUDGE
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