Modica v. Cox et al

Filing 31

ORDER signed by Magistrate Judge Dale A. Drozd on 12/18/12 ordering plaintiff's 12/07/12 request for a court order authorizing him to seek written answers from another inmate to questions plaintiff wishes to pose 29 is denied. Plaintiff's 12/07/12 motion for appointment of counsel 30 is denied. (Plummer, M)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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ANTOINE E. MODICA, SR.,
Plaintiff,

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No. 2:11-cv-2163 DAD P

Defendants.

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ORDER

vs.
B. COX, et al.,

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, has

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requested a court order authorizing him to conduct discovery by sending written questions to an

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inmate witness and obtaining answers from that inmate witness in the form of an affidavit. In

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addition, plaintiff requests the appointment of counsel.

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As to plaintiff’s request to conduct discovery by sending written questions to

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inmate Lashawn Thomas, plaintiff states that inmate Thomas provided a declaration that is

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attached to plaintiff’s amended complaint but that he has since lost contact with Mr. Thomas

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since plaintiff’s was transferred to Avenal State Prison on May 1, 2012. (Doc. No. 29 at 2.) The

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court will construe plaintiff’s request in this regard as a motion seeking leave to serve

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depositions by written questions on a deponent who is confined in prison pursuant to Rule

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31(a)(2)(B) of the Federal Rules of Civil Procedure. However, plaintiff has not complied with
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the notice requirements of that rule. See Rule 31(a)(3) (requiring among other things that the

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notice of deposition upon written questions set forth the officer before whom the deposition will

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be taken). Moreover, the court notes that plaintiff has not indicated what relevant information he

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believes Mr. Thomas can provide beyond that already provided in the declaration referred to nor

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does he explain the basis for his belief in that regard. See Doc. No. 13 at 20-21. Therefore,

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plaintiff’s request to conduct discovery in this fashion will be denied at this time.
As to plaintiff’s request for the appointment of counsel, for the reasons set forth in

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the court’s June 13, 2012 order, that request will also be denied.
Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s December 7, 2012 request for a court order authorizing him to seek

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written answers from another inmate to questions plaintiff wishes to pose (Doc. No. 29) is

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denied; and
2. Plaintiff’s December 7, 2012 motion for appointment of counsel (Doc. No. 30)

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is denied.

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DATED: December 18, 2012.

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DAD:kly/4
modi2163.31+

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