Wilkins v. County of Contra Costa

Filing 220

ORDER by Judge James Donato denying 199 Motion for certification for an interlocutory appeal ; denying 206 Motion for written depositions ; denying 209 Motion to provide notice ; denying 210 Motion for summary adjudication ; granting 211 Motion for Leave to File; granting 216 Administrative Motion to stay the proceedings, except for discovery, until after the motion to dismiss has been resolved. (lrcS, COURT STAFF) (Filed on 2/7/2020)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,
Plaintiff,

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United States District Court
Northern District of California

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Case No. 16-cv-07016-JD

ORDER ON MOTIONS

v.

Re: Dkt. Nos. 199, 206, 209, 210, 211, 216
DAVID O. LIVINGSTON, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding pro se in this civil rights action under 42 U.S.C. §

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1983. On December 10, 2019, defendants filed a motion to dismiss, that is now fully briefed, and

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the Court will address in due course. Plaintiff has filed several other motions. Plaintiff has

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requested Court certification for an interlocutory appeal pursuant to 28 U.S.C. 1292(b) with

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respect to his Monell claim that the Court denied at screening. This issue does not present a

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controlling question of law with a substantial ground for difference of opinion to warrant an

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interlocutory appeal. The request is denied.

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Plaintiff has also filed a request to take depositions by written questions of inmates in a

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different prison. Federal Rule of Civil Procedure 31(a)(2)(B) requires leave of the Court if the

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deponent is confined in prison. Unless the parties stipulate otherwise, the party noticing the

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deposition is required to provide the questions to an “officer”, as that term is defined in Rule

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28(a), who will take the deponent’s responses to the questions, certify them, and send them to the

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noticing party. Id. Rules 31(b), 30(b)(5). Defendants are opposed to the Court granting plaintiff

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leave to depose the inmates and have not stipulated that plaintiff may depose the individuals by

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written questions in some manner not requiring the participation of a deposition officer. Plaintiff

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must also have the financial ability to compensate an officer to take responses and prepare the

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record. Plaintiff must demonstrate that he can pay for these services. Thus, proceeding under

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Rule 31 may not provide a viable alternative to direct communication, due to plaintiff’s

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incarceration and the incarceration of his witnesses.

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Courts have found a failure to make these showings defeats a motion to take depositions.

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See Harrell v. Jail, No. 14-cv-1690 TLN CKD, 2015 WL 8539037, at *2 (E.D. Cal. Dec. 11,

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2015). As one court has observed: “If plaintiff wants to depose [a witness] on written questions,

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plaintiff needs to set up such a deposition, arrange for a court reporter and arrange for the

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attendance of the witness. It is not defendant’s obligation or the court’s obligation to do so.”

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Lopez v. Horel, No. 06-cv-4772 SI, 2007 WL 2177460, at *2 (N.D. Cal. July 27, 2007), aff’d, 367
Fed. Appx. 810 (9th Cir. 2010). The Court further noted that a Rule 31 deposition “may sound

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United States District Court
Northern District of California

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like an inexpensive way for a prisoner to do discovery but usually is not.” Id. at *2, n.2. This

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motion is denied without prejudice.

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Plaintiff may avail himself of the process provided for in California Code of Regulations,

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title 15, § 3139, to correspond with the other inmates. If plaintiff attempts to engage in

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communications with his witnesses by following the proper procedures under § 3139(a)-(c) and is

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denied access or is otherwise unable to effectively communicate with his witnesses, and those

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communications are necessary to the litigation of this action, plaintiff may file another motion

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describing his attempts to engage in the process provided by § 3139(a)-(c), why that process failed

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him, and why the evidence from the witness is relevant. Information from these witnesses is not

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relevant to the pending motion to dismiss.

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Consequently:

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1.

The motion for certification for an interlocutory appeal (Docket No. 199) is

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DENIED. The motion for written depositions (Docket No. 206) is DENIED without prejudice as

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set forth above. The motion to provide notice (Docket No. 209) is DENIED. Plaintiff’s motion

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for summary adjudication (Docket No. 210) is DENIED without prejudice. Plaintiff may file a

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motion for summary judgment once the Court has ruled on the pending motion to dismiss.

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Plaintiff’s motion to file a sur-reply (Docket No. 211) is GRANTED and the Court will consider

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the filing.
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Defendants’ motion to stay the proceedings, except for discovery, until after the

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motion to dismiss has been resolved (Docket No. 216) is GRANTED. This case is STAYED

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until 14 days after the Court issues a decision on the motion to dismiss. Plaintiff may not submit

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any filings during this period unless it involves discovery.

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IT IS SO ORDERED.
Dated: February 7, 2020

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JAMES DONATO
United States District Judge

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United States District Court
Northern District of California

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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KEENAN G. WILKINS,

Case No. 16-cv-07016-JD

Plaintiff,
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v.

CERTIFICATE OF SERVICE

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DAVID O. LIVINGSTON, et al.,
Defendants.

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I, the undersigned, hereby certify that I am an employee in the Office of the Clerk, U.S.
District Court, Northern District of California.

United States District Court
Northern District of California

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That on February 7, 2020, I SERVED a true and correct copy(ies) of the attached, by
placing said copy(ies) in a postage paid envelope addressed to the person(s) hereinafter listed, by
depositing said envelope in the U.S. Mail, or by placing said copy(ies) into an inter-office delivery
receptacle located in the Clerk's office.

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Keenan G. Wilkins ID: AN2387
California Health Care Facility E2B-131L FACILITY E
P.O. Box 32290
Stockton, CA 95213

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Dated: February 7, 2020

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Susan Y. Soong
Clerk, United States District Court

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By:________________________
LISA R. CLARK, Deputy Clerk to the
Honorable JAMES DONATO

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