Padilla v. Beard et al

Filing 91

ORDER signed by Magistrate Judge Carolyn K. Delaney on 12/30/15 GRANTING 87 Application to modify this Courts December 10, 2015 Order is granted. The Order is hereby modified to permit Plaintiff to appear for his further deposition in Ventura County. The parties shall arrange for the availability of videoconferencing, should Court supervision be required. (Dillon, M)

LORI RIFKIN – 244081
1 RIFKIN LAW OFFICE
P.O Box 19169
2 Oakland, California 94169
Telephone: [phone]
3 Facsimile: [phone]
Email: [e-mail]
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Attorney for Plaintiff
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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA, SACRAMENTO DIVISION

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Jermaine Padilla,
Plaintiff,

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v.

Jeffrey Beard, in his individual capacity
14 and official capacity as Secretary for the
California Dept. of Corrections and
15 Rehabilitation, Michael Stainer, in his
individual capacity and official capacity as
16 Director of Adult Institutions for California
Dept. of Corrections and Rehabilitation,
17 Connie Gipson, in her individual capacity,
Dave Davies, in his official capacity as
18 Acting Warden of California State Prison
Corcoran, Ernest Wagner, M.D., in his
19 individual capacity, M. Godina, M. Drew,
R. Pruneda, R. Martinez, J. Acevedo, C.
20 Garcia, E. Silva, and Does 1-10, in their
individual capacities,
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Defendants.
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Case No. 2:14-cv-01118-KJM-CKD
PLAINTIFF’S APPLICATION &
PROPOSED ORDER FOR
MODIFICATION OF DECEMBER 10,
2015 ORDER
Judge: Hon. Carolyn K. Delaney

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PLAINTIFF’S APPLICATION FOR MODIFICATION OF DECEMBER 10, 2015 ORDER

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Plaintiff hereby requests a modification of the December 10, 2015 Order issued by

3 the Court concerning Plaintiff’s motion to terminate his deposition and Defendants’
4 motion to compel the deposition. The Court ordered that Plaintiff’s further deposition is
5 limited to three hours and “shall be conducted at the federal courthouse, on a date
6 coordinated with the court’s courtroom deputy, so as to allow court supervision of said
7 deposition.” 12/10/15 Order at 1:24-26. Plaintiff does not seek modification of the order
8 granting his further deposition nor of court supervision. However, because of the
9 substantial burden and hardship to Plaintiff in complying with the order as issued, Plaintiff
10 seeks a modification to allow the Court to supervise his further deposition by
11 videoconference.
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On December 10, 2015, following the Court’s order, Defendants’ counsel contacted

13 Plaintiff’s counsel by e-mail and requested dates during the last week of December or first
14 week of January for Plaintiff’s deposition. Declaration of Lori Rifkin in Support of
15 Plaintiff’s Application for Modification (“Rifkin Decl.”) at ¶ 2 & Ex. A.
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Plaintiff lives in Ventura County, receives social security as his sole means of

17 income, has no means of transportation, and is currently still under Post-Release
18 Community Supervision which limits his ability to travel outside Ventura County. Rifkin
19 Decl. ¶ 3. He currently resides at a sober living home where he receives daily medication
20 and assistance. Id. Travel, which would also necessitate lodging, to the federal courthouse
21 in Sacramento for the three-hour deposition would therefore impose disproportionate
22 hardship on Plaintiff. Plaintiff’s counsel responded to Defendants’ e-mail on December
23 11, 2015 proposing that Plaintiff’s deposition be videoconferenced so that Plaintiff and his
24 counsel can be located in Ventura County, Defendants’ counsel can be located either in
25 Sacramento or Ventura County at their choosing, and the Court can supervise the
26 deposition by videoconference from the Sacramento courthouse. Id.¶ 4 & Ex. B.
27 Plaintiff’s counsel stated that such deposition could be completed January 6 or 7, per the
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PLAINTIFF’S APPLICATION FOR MODIFICATION OF DECEMBER 10, 2015 ORDER

1 schedule requested. Id. Defendants’ counsel rejected this proposal and has offered no
2 other alternatives, despite Plaintiff’s further request. Id. ¶ 5-7 & Exs. C & D. Prior to the
3 Court’s order on this matter, Defendant’s counsel had indicated Defendants’ intent to
4 conduct Plaintiff’s further deposition in Ventura County. Id. ¶ 8 & Ex. E.
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Through this request, Plaintiff is not seeking to avoid his further deposition and

6 Plaintiff’s counsel believes the proposal of videoconference is reasonable and meets the
7 spirit of the Court’s order without imposing undue hardship on any party, especially given
8 that Defendants’ counsel can elect to be physically present in Ventura County with
9 Plaintiff or to be in Sacramento, in which Defendants’ counsel’s office is located. Rifkin
10 Decl. ¶ 9. Therefore, Plaintiff respectfully requests that the Court modify the December
11 10, 2015 order to permit supervision of Plaintiff’s further deposition by videoconference.
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DATED: December 22, 2015

Respectfully submitted,
RIFKIN LAW OFFICE

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By: /s/ Lori Rifkin
Lori Rifkin

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Attorney for Plaintiff

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PLAINTIFF’S APPLICATION FOR MODIFICATION OF DECEMBER 10, 2015 ORDER

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ORDER

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Good cause appearing, Plaintiff’s application to modify this Court’s December 10, 2015

3 Order is granted. The Order is hereby modified to permit Plaintiff to appear for his further
4 deposition in Ventura County. The parties shall arrange for the availability of videoconferencing,
5 should Court supervision be required.
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IT IS SO ORDERED.

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Dated: December 30, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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PLAINTIFF’S APPLICATION FOR MODIFICATION OF DECEMBER 10, 2015 ORDER