Calloway v. Veal et al

Filing 41

ORDER signed by Magistrate Judge Gary S. Austin on 8/22/2011 denying 39 request to conduct depositions without prejudice and directing Clerk to send Plaintiff copy of Rules. (Lundstrom, T)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JASIMI JERMAINE CALLOWAY,

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Plaintiff,

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vs.

ORDER DENYING REQUEST TO
CONDUCT DEPOSITIONS, WITHOUT
PREJUDICE
(Doc. 39.)

WARDEN M. VEAL, et al.,

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1:08-cv-01896-LJO-GSA-PC

Defendants.

ORDER FOR CLERK TO SEND PLAINTIFF
A COPY OF RULES 28, 30, 31, AND 45 OF THE
FEDERAL RULES OF CIVIL PROCEDURE

_____________________________/

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Jasimi Jermaine Calloway (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. A scheduling order was issued on June
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14, 2011, establishing pre-trial deadlines for this action. (Doc. 31.) This case is currently in the
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discovery phase. On August 11, 2011, Plaintiff filed a request to conduct oral depositions. (Doc. 39.)
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On August 15, 2011, Defendants filed an opposition. (Doc. 40.)
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Plaintiff requests leave to conduct oral depositions of defendants Wang, Oaks, and Hayward
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before a licensed stenographer. Plaintiff requests a court order directing Defendants’ counsel to make
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arrangements for the depositions to be held at Kern Valley State Prison or any other California State
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Prison.
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In opposition, Defendants argue that Plaintiff’s in forma pauperis status does not entitle him to

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a court-appointed deposition reporter to take depositions, or free deposition transcripts. Defendants also

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argue that there is no authority that defendants or their counsel are responsible for conducting Plaintiff’s

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discovery for him. Defendants also assert that in the event that Plaintiff somehow arranges to conduct

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depositions and seeks to personally take Defendants’ depositions, Defendants intend to request a

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protective order on the grounds that Plaintiff has a history of physical violence while incarcerated,

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including against defendant Hayward.

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If Plaintiff wishes to conduct oral or written depositions, Plaintiff is cautioned that he must

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comply with the Federal Rules of Civil Procedure. Unless the parties stipulate otherwise, an oral

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deposition must be conducted before an officer appointed or designated under Rule 28. Fed. R. Civ. P.

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30(b)(5)(A). Depositions by written questions entail more than simply mailing questions to the

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deponents and awaiting their written responses. See Fed. R. Civ. P. 31. If Plaintiff wishes to compel

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attendance of non-parties at a deposition by subpoena, he must comply with Rule 45 of the Federal Rule

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of Civil Procedure. The Court will direct the Clerk’s Office to send Plaintiff a copy of Rules 28, 30, 31,

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and 45. If, after reviewing the rules, Plaintiff believes he is able to conduct depositions in compliance

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with the rules, Plaintiff shall notify the Court and make a showing that he is able and willing to retain

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an officer to take responses and prepare the record.1 Fed. R. Civ. P. 31(b). At that juncture, the Court

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will reconsider Plaintiff’s request to conduct depositions and will determine what course of action is

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needed to facilitate the depositions.

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Accordingly, THE COURT HEREBY ORDERS that:

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Plaintiff’s request to conduct oral depositions is DENIED without prejudice;

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2.

The Clerk is directed to send Plaintiff a copy of Rules 28, 30, 31, and 45 of the

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Federal Rules of Civil Procedure; and

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Defendants correctly state that Plaintiff’s in forma pauperis status does not entitle him to a court-appointed
deposition reporter or free deposition transcripts. See 28 U.S.C. § 1915; W right v. United States, 948 F.Supp. 61, 61-62
(M.D.Fla.1996) (parties proceeding in forma pauperis are responsible for payment of discovery costs, including the costs
of depositions, fees for court reporters and transcripts); Papas v. Hanlon, 849 F.2d 702 703-04 (1st Cir.1988) (affirming an
order requiring litigants proceeding in forma pauperis to pay stenographer's fees); Barcelo v. Brown, 655 F.2d 458, 462 (1st
Cir.1981) (in forma pauperis statute does not authorize a district court to order payment of transcripts).

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3.

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Should Plaintiff wish to conduct depositions, he must begin by following the
instructions written in this order.

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IT IS SO ORDERED.
Dated:
220hhe

August 22, 2011

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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