Handy v. Diggins et al

Filing 178

ORDER denying without prejudice 176 Motion for Court Order Sterritt Fuller to Take Deposition Upon Written Questions by Magistrate Judge Kathleen M. Tafoya on 05/18/12.(jjhsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Magistrate Judge Kathleen M. Tafoya
Civil Action No. 10–cv–02022–WYD–KMT

WYATT T. HANDY JR.,
Plaintiff,
v.
CHIEF DIGGINS, individual & official capacity,
MAJOR V. CONNORS, individual & official capacity,
CHAPLAIN SCOTT, individual & official capacity,
MR. BURRIS, individual & official capacity, and
PANEL OF ISLAMIC CLERICS, individual & official capacity
Defendants.

ORDER

This matter is before the court on Plaintiff’s “Motion for Court to Order Sterritt Fuller to
Take Deposition Upon Written Questions.” (Doc. No. 176, filed May 15, 2012.) In his Motion,
Plaintiff seeks a court order, pursuant to Fed. R. Civ. P. 31, directing Sterritt Fuller, the
Programs Coordinator at the Adams County Jail, to take a deposition upon written questions. In
support of his Motion, Plaintiff notes that he filed a similar motion on July 25, 2011 (see Doc.
No. 105) and that the court ordered Defendants to respond to that motion no later than August
18, 2011 (see Minute Order, Doc. No. 109). Plaintiff maintains that Defendants “have never
responded to the aforementioned motion.” (Mot. at 1.)

Although Plaintiff indeed submitted a similar motion in July 2011, his position that
Defendants never responded is inaccurate. Defendants filed a response on August 23, 2011
stating that they opposed Plaintiff’s motion because Plaintiff’s proposed deposition did not
assure strict compliance with the requirements of Fed. R. Civ. P. 31 and because Plaintiff did not
include the deposition question he was proposing. (See Doc. No. 122.) Consistent with
Defendants’ position, the court denied Plaintiff’s July 2011 motion without prejudice at a
September 12, 2011 Motion Hearing because the motion failed to designate an officer who
would take Mr. Fuller’s deposition and, therefore, failed to assure that the deposition would be
conducted in accordance with Rule 31. (See Courtroom Minutes/Minute Order, Doc. No. 125,
filed Sept. 12, 2011.)
Plaintiff’s present Motion does not cure the deficiencies noted by the court at the
September 12, 2011 hearing. Rule 31 requires that a deposition by written questions must be
taken by an “officer,” who must then prepare and certify the deposition upon completion. See
Fed. R. Civ. P. 31(b). Much like his previous motion, Plaintiff’s present Motion fails to
designate an officer who will take Mr. Fuller’s deposition and prepare and certify the deposition
upon its completion. Accordingly, the court finds that Plaintiff’s Motion is properly denied for
failure to comply with Rule 31. See Woodward v. Mullah, 08-cv-463(A)(M), 2010 WL
3023117, at *4-5 (W.D.N.Y July 29, 2010) (denying a motion to serve a deposition by written
questions for failure to set forth the officer before whom the deposition will be taken); Patterson
v. Bannish, 3:10-cv-1481 (AWT), 2011 WL 2518749 , at *3 (D. Conn. June 23, 2011) (same,
noting that the plaintiff’s apparent belief that a Rule 31 deposition is no different than a request
2

for interrogatories was incorrect). See also Merchant v. Lopez, No. 09-856 WQH (NLS), 2010
WL 3731108, at *2 (S.D. Cal. Sept. 8, 2010) (noting that even an indigent pro se plaintiff must
expend his own resources in procuring a deposition officer to issue notice, deliver the questions,
transcribe the deponent’s testimony, and file the deposition).
Therefore, it is
ORDERED that Plaintiff’s “Motion for Court to Order Sterritt Fuller to Take Deposition
Upon Written Questions” (Doc. No. 176) is DENIED without prejudice.
Dated this 18th day of May, 2012.

3