Walker v. Kernan et al

Filing 66

ORDER signed by Magistrate Judge Deborah Barnes on 03/01/21 DENYING 60 Motion to vacate and stay the deposition. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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G. DANIEL WALKER,

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Plaintiff,

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No. 2:17-cv-1764 KJM DB P

v.

ORDER

SCOTT KERNAN, et al.,

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Defendants.

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Plaintiff is a state prisoner proceeding pro se with a civil rights action seeking relief under

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42 U.S.C. § 1983. Plaintiff claims that defendants conspired to retaliate against him because he

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named them as defendants in prior lawsuits. Presently before the court is plaintiff’s motion to

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vacate and/or stay the deposition. (ECF No. 60.) For the reasons set forth below, the court will

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deny plaintiff’s motion.
Plaintiff filed a motion seeking to vacate and stay the deposition noticed for March 4,

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2021. (ECF No. 60.) Plaintiff alleged that he does not have access to all the documents he needs

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to bring to the deposition, he was concerned that leaving his cell and reporting to the designated

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room where he is to participate in the deposition via videoconferencing would put him at an

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undue risk of contracting COVID-19, and his hearing issues prevent him from meaningfully

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participating in the deposition.

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The court directed defendants to file a response to plaintiff’s motion addressing the

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concerns outlined above. (ECF No. 64.) Defendants have submitted an opposition to plaintiff’s

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motion. (ECF No. 65.) Therein, counsel for defendants states that plaintiff has been advised that

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he has legal property in storage, he can get any items he needs by asking for his property to be

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brought over, going through the boxes, and exchanging documents he needs with those that he

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does not need for the deposition. (Id. at 3-4.) Counsel further stated that during a recent

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telephone call with plaintiff, plaintiff refused to give counsel a list of the documents plaintiff

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needs because plaintiff had already placed a list of such documents in the mail. (Id. at 3.)

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Counsel also contacted California Health Care Facility (CHCF), where plaintiff is

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currently housed, regarding the spread of the COVID-19 virus. (Id. at 4.) Counsel was advised

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that as of February 25, 2021, there are five inmates with COVID-19 at CHCF. Those inmates are

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quarantined, and plaintiff will not come into contact with them as he is escorted from his cell to

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the videoconference room.

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Counsel further confirmed that plaintiff has access to a pocket talker that allows him to

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amplify volume and effectively communicate with others. (Id.) Counsel stated that plaintiff was

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able to adequately communicate with counsel over the phone and with Magistrate Judge Delaney

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during the settlement conference that took place via videoconferencing on November 3, 2020.
Counsel’s declaration (ECF No. 65 at 3-4), shows that reasonable precautions have been

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taken to minimize risks associated with the COVID-19 to plaintiff. Additionally, counsel has

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confirmed that plaintiff’s hearing issues have been sufficiently accommodated to ensure he will

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be able to meaningfully communicate during the deposition. Finally, defendants indicate that

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plaintiff has been advised that he can access the legal materials in storage by making a request

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and exchanging documents needed for the deposition for those he does not need for the

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deposition. In light of the representations made in defendants’ opposition, the court finds no

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reason to vacate the deposition. Plaintiff is advised that the Federal Rules of Civil Procedure

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require him to attend and meaningfully participate in his deposition. See Fed. R. Civ. P. 30, 37.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion to vacate and stay the

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deposition (ECF No. 60) is denied.

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Dated: March 1, 2021

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DB:12
DB:1/Orders/Prisoner/Civil.Rights/walk1764.depo.stay

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