Calloway v. Veal, et al

Filing 31

ORDER signed by Magistrate Judge Edmund F. Brennan on 8/30/11 DENYING 28 Motion to Appoint Counsel ; DENYING 29 Motion regarding depositions. (Dillon, M)

1
2
3
4
5
6
7
8

IN THE UNITED STATES DISTRICT COURT

9

FOR THE EASTERN DISTRICT OF CALIFORNIA

10

JAMISI JERMAINE CALLOWAY,
Plaintiff,

11
12

vs.

13

No. CIV S-09-2907 GEB EFB P

M. VEAL, et al.,
Defendants.

14

ORDER
/

15

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

16
17

U.S.C. § 1983. He has requested that the court appoint counsel. He also filed a request for leave

18

to conduct defendants’ depositions by remote means pursuant to Rule 30(b)(4) of the Federal

19

Rules of Civil Procedure (“Rule).

20

District courts lack authority to require counsel to represent indigent prisoners in

21

section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In

22

exceptional circumstances, the court may request counsel voluntarily to represent such a

23

plaintiff. 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood

24

v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). The court finds that there are no

25

exceptional circumstances in this case.

26

////
1

1

Rule 30(b)(4) provides that “[t]he parties may stipulate—or the court may on motion

2

order—that a deposition be taken by telephone or other remote means.” In his requests, plaintiff

3

asks for leave to conduct oral depositions before a court stenographer, and that the court order

4

defendants’ counsel to arrange with prison officials for defendants’ depositions to be taken on a

5

Saturday or Sunday. It does not appear from plaintiff’s request that he actually seeks leave to

6

conduct depositions by remote means, i.e., telephone or video conference. Rather, it appears that

7

plaintiff requests that the court provide him with a stenographer and an order directing

8

defendants to arrange for any depositions.

9

Plaintiff’s request must be denied because it his responsibility to notice and arrange for

10

defendants’ depositions and to bear the costs of recording such depositions.1 Rule 30(b)(1)

11

requires that a “party who wants to depose a person by oral questions must give reasonable

12

written notice to every other party.” “The party who notices the deposition must state in the

13

notice the method for recording the testimony.” Fed. R. Civ. P. 30(b)(3)(A). That party must

14

also arrange for an officer to conduct the depositions, and bears the costs of recording the

15

deposition. Fed. R. Civ. P. 30(b)(3)(A)-(B), (5)(A). Therefore, plaintiff’s request will be

16

denied.

17

Accordingly, IT IS HEREBY ORDERED that:

18

1. Plaintiff’s August 9, 2011 request for appointment of counsel is denied; and

19

2. Plaintiff’s August 12, 2022 motion regarding depositions is denied.

20

DATED: August 30, 2011.

21
22
23
24
25
1

26

This is true even if the depositions are conducted by “remote means” pursuant to Rule

30(b)(4).
2