Aldrich v. Farinella et al

Filing 32

ORDER denying without prejudice 29 Motion to Appoint Counsel; denying without prejudice 30 Motion to Depose Defendants. See attached Ruling. Signed by Judge Thomas P. Smith on May 15, 2012. (Slitt, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

ARTHUR ALDRICH
v.

CASE NO.

3:11CV508(DJS)(TPS)

MONICA FARINELLA, ET AL.
RULING ON PENDING MOTIONS
Pending before the court is a motion for appointment of
counsel and motion to depose defendants. For the reasons set forth
below, the motions are denied without prejudice.
I.

Motion for Appointment of Counsel [Doc. No. 29]
The plaintiff claims that defendants’ counsel intends to

depose him on Mary 16, 2012.

He seeks the appointment of pro bono

counsel to represent him at the deposition.
The Second Circuit has made clear that before an appointment
is even considered, the indigent person must demonstrate that he is
unable to obtain counsel.

See Hodge v. Police Officers, 802 F.2d

58, 61 (2d Cir. 1986), cert. denied, 502 U.S. 986 (1991).
plaintiff

asserts

that

he

has

contacted

the

Inmates’

The
Legal

Assistance Program in the past, but an attorney informed him that
he is not permitted to represent inmates in legal actions.

The

plaintiff claims that he contacted one attorney at some point in
the past, but he declined to assist the plaintiff due to his heavy
case load.

The plaintiff states that he contacted an attorney at

the American Civil Liberties Union, but he declined to assist him

due to budget restrictions.

These three efforts to obtain legal

representation are insufficient to demonstrate that he is unable to
secure legal representation or assistance on his own.

The motion

for appointment of counsel is denied without prejudice.
II.

Motion to Depose Defendants [Doc. No. 30]
Pursuant to Rule 30(a)(2)(B) of the Federal Rules of Civil

Procedure, the plaintiff seeks leave to orally depose defendants
Monica

Farinella

and

Nurse

Yvonne

at

MacDougall

Correctional

Institution in Suffield, Connecticut or at the United States
District Court in Hartford, Connecticut on June 4, 2012.

He asks

that a room be designated for the depositions, a stenographer be
appointed to record the depositions and that all fees associated
with the depositions be waived.
The statute authorizing indigent persons to file an action
without prepayment of the filing fee, 28 U.S.C. § 1915, does not
authorize the payment of deposition or other discovery or trial
expenses by the court.

See Malik v. Lavalley, 994 F.2d 90 (2d Cir.

1993) (holding 28 U.S.C. § 1915 does not “authorize[] the federal
courts to waive or pay . . . witness fees” on behalf of pro se
litigant); Koehl v. Greene, No. 9:06-CV-0478 (LEK/GHL), 2007 WL
4299992, *3 (N.D.N.Y. Dec. 6, 2007) (“[A] litigant proceeding in
forma pauperis does not have the right to a waiver of (1) the cost
of a deposition stenographer, (2) the daily attendance fee and
mileage allowance that must be presented to an opposing witness
under Rule 45 of the Federal Rules of Civil Procedure, or (3) the
2

copying

cost

of

any

deposition

transcripts”)

(citing

cases);

Tajeddini v. Gulch, 942 F. Supp. 772, 782 (D. Conn. 1996) (denying
plaintiff’s motion to depose defendants because plaintiff did not
indicate how he would pay deposition expenses and in forma pauperis
status does not require advancement of funds by the court for
deposition expenses).
Pursuant to Rule 30(b)(3), the party who seeks to take the
deposition

and

chooses

to

record

the

testimony

“by

audio,

audiovisual or stenographic means. . . . bears the recording
costs.”

Furthermore, Rule 30(b)(5) requires that, unless the

parties have otherwise stipulated, a deposition by oral questions
be conducted before an officer appointed by or designated under
Fed. R. Civ. P. 28.

The plaintiff does not indicate that he has

sufficient funds to pay the required expenses to depose the persons
identified in his motion.

Nor has he made any arrangements to have

an officer present at the deposition pursuant to Fed. R. Civ. P.
30(b)(5).

Thus, plaintiff’s motion is denied without prejudice.

The plaintiff may refile his motion if he can demonstrate that
he has sufficient funds to pay the deposition expenses.

The court

notes that there are other, less expensive methods plaintiff could
use to obtain the evidence he now seeks by oral deposition recorded
by a stenographer. The Federal Rules of Civil Procedure also allow
a party to conduct depositions upon written questions pursuant to
Rule 31 or to pose interrogatories to an opposing party pursuant to
Rule 33.
3

III. Conclusion
The Motion for Appointment of Counsel [Doc. No. 29] is DENIED
without prejudice. Any renewal of this motion shall be accompanied
by a summary of the plaintiff’s attempts to secure legal assistance
and the reasons why assistance was unavailable.
Motion to

Depose

Defendants [Doc.

No.

30]

is

The plaintiff’s
DENIED without

prejudice.

Dated at Hartford, Connecticut this

15th

day of May, 2012.

/s/ Thomas P. Smith
THOMAS P. SMITH
UNITED STATES MAGISTRATE JUDGE

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