Sims v. Cabrera et al

Filing 44

ORDER DENYING 31 34 Motions for Depositions by Written Questions signed by Magistrate Judge Sheila K. Oberto on 12/8/2014. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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QUINCY SIMS,

Case No. 1:12-cv-01904-LJO-SKO (PC)

Plaintiff,

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v.

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M. CABRERA,

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ORDER DENYING MOTIONS FOR
DEPOSITIONS BY WRITTEN QUESTIONS

Defendant.
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(Docs. 31 and 34)

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Plaintiff Quincy Sims (“Plaintiff”), a state prisoner proceeding pro se and in forma

17 pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on November 21, 2012. This
18 action for damages is proceeding against Defendant M. Cabrera (“Defendant”) for failing to
19 protect Plaintiff from the threat of harm by gang members or affiliates while he was at Kern
20 Valley State Prison, in violation of the Eighth Amendment of the United States Constitution.
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On July 2, 2014, Plaintiff filed a “Motion for a ‘Deposition Upon Written Questions’” and

22 on July 17, 2014, Plaintiff filed a “Motion for Second//Deposition Upon Written Questions.”
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Defendant filed an opposition to the first motion on July 8, 2014, and an

24 opposition to the second motion on July 31, 2014. (Docs. 32, 35.) Plaintiff did not file replies and
25 the motions were submitted on the record without oral argument pursuant to Local Rule 230(l).
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Plaintiff’s first motion seeks an order requiring Defendant to appear before a stenographer

27 and answer the questions set forth in the motion, and Plaintiff’s second motion seeks to depose
28 forty-nine prison staff members either before a stenographer or via videotaped answers. However,

1 an officer must be retained to take responses and prepare the record, and Plaintiff is responsible
2 for bearing the costs of the depositions he seeks. Fed. R. Civ. P. 31(b). There is no entitlement to
3 take a deposition, and any party seeking to conduct a deposition by written question must comply
4 with the Federal Rules of Civil Procedure. See 28 U.S.C. § 1915 (in forma pauperis statute); Fed.
5 R. Civ. P. 31; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (“‘[T]he expenditure of public
6 funds [on behalf of an indigent litigant] is proper only when authorized by Congress. . . .’”)
7 (quoting United States v. MacCollum, 426 U.S. 317, 321, 96 S.Ct. 2086 (1976)).
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If Plaintiff is able and willing to compensate an officer to take responses and prepare the

9 record, he may notify the Court within thirty days, accompanied by an offer of proof regarding the
10 financial ability to compensate the officer. The Court will then take the steps necessary to ensure
11 Plaintiff is permitted to schedule and conduct the depositions under Rule 31.
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Accordingly, based on the foregoing, Plaintiff’s motions for depositions by written

13 questions are DENIED.
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IT IS SO ORDERED.
Dated:

December 8, 2014

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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