Boyd v. Etchebehere et al

Filing 99

ORDER Denying Plaintiff's 96 Motion to Supress Deposition Transcript, signed by Magistrate Judge Stanley A. Boone on 5/1/17. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 CURTIS BOYD, 12 Plaintiff, 13 v. 14 C. ETCHEBEHERE, 15 Defendants. 16 Case No. 1:13-01966-LJO-SAB (PC) ORDER DENYING PLAINTIFF’S MOTION TO SUPPRESS DEPOSITION TRANSCRIPT [ECF No. 96] Plaintiff Curtis Boyd is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) pursuant to 42 U.S.C. § 1983. Currently before the Court is Plaintiff’s motion to suppress the deposition submitted by 19 20 Defendants in support of their motion for summary judgment, filed April 24, 2017. Defendants filed 21 an opposition on April 27, 2017. Because it is clear that there is no basis under the law to suppress the 22 use of Plaintiff’s deposition, the Court finds a reply unnecessary and will not await the time for such 23 filing. 24 I. 25 DISCUSSION 26 In his motion, Plaintiff argues that he was not given the opportunity to review the deposition 27 transcript pursuant to Federal Rule of Civil Procedure 30(e)(1)(A), Defendants have only submitted a 28 partial portion of the transcript in support of their motion for summary judgment, and requests 1 1 sanctions be imposed for Defendants continuous misconduct and disobedience of the law. Plaintiff’s 2 motion must be denied. Federal Rule of Civil Procedure 30(e) permits a deponent to make changes to his deposition 3 4 testimony “in form or substance” provided the deponent (1) requests review of the deposition to make 5 corrections, (2) signs a statement listing the changes and the reasons for making them, and (3) submits 6 changes within thirty days of receiving notice that the transcript is available. Fed. R. Civ. P. 30(e)(1)- 7 (2). 8 9 10 11 12 13 14 In order to properly object and suppress the deposition transcript, Rule 32 of the Federal Rules of Civil Procedure provides: An objection to how the officer transcribed the testimony—or prepared, signed, certified, sealed, endorsed, sent, or otherwise dealt with the deposition—is waived unless a motion to suppress is made promptly after the error or irregularity becomes known or, with reasonable diligence, could have been known. Fed. R. Civ. P. 32(d)(4). First, Plaintiff’s claim that the deposition should be excluded because he was not given an 15 opportunity to review the transcript is belied by the evidence in the record. Defendants have 16 submitted a declaration dated December 2, 2016 signed under penalty of perjury by Plaintiff stating 17 that he “read the foregoing [deposition] transcript” and that his “testimony contained [t]herein, as 18 corrected, is true and correct.” (ECF No. 84-4 at p. 95.) 19 Second, Plaintiff’s claim that there are “certain errors and irregularities” in the transcript is also 20 belied by the evidence in the record. (Pl.’s Mot. at p. 1, ECF No. 96.) Defendants have submitted five 21 errata sheets containing handwritten corrections by Plaintiff with line-page citations after his review of 22 the entire deposition transcript. (See ECF No. 84-4 at pgs. 96-100.) Thus, there is no showing of any 23 basis to suppress the deposition transcript for certain unidentified errors and irregularities in the 24 transcript. 25 Third, Plaintiff claims that he “was given a partial copy of the deposition transcript,” attached 26 as Exhibit A to the Declaration of Andrew Whisnand in support of the motion for summary judgment. 27 (Pl.’s Mot. at p. 1, ECF No. 96; Decl. of A. Whisnand Supp. Defs.’ Mot. Summ. J., Ex. A, ECF No. 28 84-4 at pgs. 3-134.) Local Rule 133(j) does not require Defendants to provide Plaintiff a copy of the 2 1 entire deposition if the entire deposition is submitted to the Court in hard copy. Local Rule 133(j) 2 provides as follows: Before or upon the filing of a document making reference to a deposition, counsel relying on the deposition shall ensure that a courtesy hard copy of the entire deposition so relied upon has been submitted to the Clerk for use in chambers. Alternatively, counsel relying on a deposition may submit an electronic copy of the deposition in lieu of the courtesy paper copy to the email box of the Judge or Magistrate Judge and concurrently email or otherwise transmit the deposition to all other parties. Neither hard copy nor electronic copy of the entire deposition will become part of the official record of the action absent order of the Court. Pertinent portions of the deposition intended to become part of the official record shall be submitted as exhibits in support of a motion or otherwise. See L.R.250.1(a). 3 4 5 6 7 8 Defendants provided the Court with a hard copy of Plaintiff’s entire deposition on December 8, 9 10 2016. (ECF No. 80.) Defendants also attached the pertinent portions of Plaintiff’s deposition as 11 Exhibit A to their motion for summary judgment which was properly served on Plaintiff. (ECF No. 12 84.) Therefore, Defendants have complied with the rules of this Court. In addition, the law does not 13 require that Plaintiff be provided a free copy of his deposition transcript unless he has paid for a copy 14 and Defendant is under no obligation to provide Plaintiff with a free copy of the transcript. 15 Furthermore, Plaintiff’s in forma pauperis status does not authorize the expenditure of public funds for 16 deposition transcripts. 28 U.S.C. § 1915; Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per 17 curiam) (“[T]he expenditure of public funds [on behalf of an indigent litigant] is properly only when 18 authorized by Congress’”) (quoting United States v. MacCollom, 426 U.S. 317, 321 (1976)). Lastly, Plaintiff claims that the Court should exclude the deposition transcript as a sanction 19 20 against “Defendants and [their] counsel for continual misconduct and disobedience to the rule of law.” 21 (Pl.’s Mot at p. 2, ECF No. 96.) Plaintiff’s request for sanctions must be denied as there is no basis to 22 find that Defendants have engaged in “continual misconduct” and/or “disobedience of the rule of law.” 23 To the contrary, Defendants have complied with the applicable local rules and rules of civil procedure. 24 Accordingly, Plaintiff’s request for sanctions must be denied. Plaintiff is advised that his opposition 25 // 26 // 27 // 28 3 1 to Defendants’ motion for summary judgment is presently due on or before May 18, 2017, and if 2 Plaintiff desires to file such opposition he should focus his efforts on doing so in a timely fashion. Based on the foregoing, Plaintiff’s motion to suppress his deposition transcript submitted in 3 4 support of Defendants’ motion for summary judgment is DENIED. 5 6 IT IS SO ORDERED. 7 Dated: 8 May 1, 2017 UNITED STATES MAGISTRATE JUDGE 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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