Gomez v. Semple et al

Filing 51

ORDER denying 49 LETTER MOTION to Issue Subpoena; denying, without prejudice, LETTER MOTION to Serve Written Deposition Order; and denying, as premature, LETTER MOTION for Discovery Conference. Signed by Judge Sarah A. L. Merriam on 3/7/2019. (Katz, S.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
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:
SANTIAGO GOMEZ
:
:
v.
:
:
SCOTT SEMPLE, et al.
:
:
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Civ. No. 3:17CV02085(JCH)

March 7, 2019

ORDER ON PLAINTIFF’S LETTER MOTION [Doc. #49]
On February 15, 2019, the self-represented plaintiff
Santiago Gomez (“plaintiff”) filed a “letter motion” requesting:
(1) permission to serve written deposition questions on each of
the defendants; (2) that the Clerk’s Office issue a subpoena
permitting plaintiff’s brother to inspect certain toilets in the
New Haven Correctional Center (“NHCC”); and (3) that the Court
schedule a conference to address “a discovery demand that
[plaintiff] anticipate will breach the safety and security of
the” NHCC. Doc. #49 at 1 (sic). On February 25, 2019, Judge
Janet C. Hall referred plaintiff’s letter motion to the
undersigned. [Doc. #50]. For the reasons that follow,
plaintiff’s letter motion [Doc. #49] is DENIED.
1.

Background
The Court presumes familiarity with the factual background

of this matter, which is set forth at length in Judge Hall’s

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Initial Review Order of plaintiff’s Amended Complaint. See Doc.
#18.
Upon the referral of Judge Hall, on January 16, 2019, the
undersigned held a telephonic status conference with plaintiff
and counsel for defendants. [Docs. #37, #39]. During that
conference, the Court reviewed the status of discovery with
plaintiff and counsel for defendants. See Doc. #37 at 1-2. The
Court also set two interim deadlines: first, that any written
discovery be issued such that it is received by the opposing
party on or before March 1, 2019; and second, that any requests
to take depositions be filed with the Court on or before March
29, 2019. See id. at 2. Discovery in this matter is scheduled to
close on May 17, 2019. See Doc. #18 at 22; see also Doc. #37 at
2.
2.

Discussion
A.

Written Deposition

Plaintiff first “request[s] permission to serve written
Deposition questions upon defendants.” Doc. #49 at 1 (sic). “A
party may, by written questions, depose any person, including a
party, without leave of court except ... if the parties have not
stipulated to the deposition and[] the deposition would result
in more than 10 depositions being taken under this rule[.]” Fed.
R. Civ. P. 31(a)(1), (a)(2)(A)(i). Presumably, plaintiff seeks

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to serve written deposition questions on each of the remaining
sixteen defendants and thus seeks leave of Court to do so.
Rule 28 mandates that “[w]ithin the United States ..., a
deposition must be taken before: (A) an officer authorized to
administer oaths either by federal law or by the law in the
place of examination; or (B) a person appointed by the court
where the action is pending to administer oaths and take
testimony.” Fed. R. Civ. P. 28(a)(1)(A)-(B). Rule 31, which
governs depositions by written questions, contemplates that a
deposition by written questions shall also occur before such an
officer. See Fed. R. Civ. P. 31(a)(3) (“A party who wants to
depose a person by written questions must serve them on every
other party, with a notice stating, if known, the deponent’s
name and address. ... The notice must also state the name or
descriptive title and the address of the officer before whom the
deposition will be taken.”). Indeed, Rule 31(b) outlines that
officer’s duties when presiding over the deposition by written
questions, including that the officer: “(1) take the deponent’s
testimony in response to the questions; (2) prepare and certify
the deposition; and (3) send it to the party, attaching a copy
of the questions and of the notice.” Fed. R. Civ. P. 31(b)(1)(3). See also Sherrod v. Breitbart, 304 F.R.D. 73, 77 n.3
(D.D.C. 2014) (Deposition by written questions does not
“eliminate the need for [the deponent] to appear, because ‘Rule
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31 clearly contemplates a witness’s personal presence at a
deposition, where the witness delivers his or her testimony
orally. It does not contemplate written responses to written
deposition questions.’” (quoting Kendrick v. Bowen, No.
83CV3175, 1989 WL 39012, at *1 n.2 (D.D.C. Apr. 13, 1989))).
Plaintiff has not identified an officer who will administer
the oath or who will proceed in accordance with Rule 31(b). Nor
has plaintiff, an incarcerated individual who is proceeding in
forma pauperis, see Doc. #8, stated whether he has the funds
necessary to pay for that officer’s services. Until plaintiff
identifies an appropriate officer, and demonstrates an ability
to pay for that officer’s services, the Court will not permit
plaintiff to proceed by written deposition.1 See, e.g., Braham v.
Lantz, No. 3:08CV1564(DFM), 2011 WL 4809032, at *1 (D. Conn.
Oct. 11, 2011) (Self-represented inmate’s motion for leave to
conduct depositions denied where, inter alia, “[h]e has not
explained how he would fund the expenses associated with
the depositions.”).
Accordingly, plaintiff’s request to proceed by written
deposition as to each of the sixteen defendants is DENIED,

“There is no authority that requires the federal government
to pay for the discovery expenses of a pro se plaintiff in a
civil case.” Espinal v. Coughlin, No. 98CIV2579(RPP), 1999 WL
1063186, at *2 (S.D.N.Y. Nov. 23, 1999) (footnote omitted).
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without prejudice. If plaintiff chooses to re-file his motion
for leave to proceed by written deposition, he must set forth
the name of the officer who will administer the oath, the
estimated cost of the written depositions, and how plaintiff
intends to pay for those costs.
B.

Request for Subpoena

Plaintiff next requests that the Clerk of the Court issue a
subpoena so his brother may inspect and take a video of “the
operation of the Toilets in the B-block and D-Block along with
the 22 Rm in S-Unit[]” in the NHCC. Doc. #49 at 1 (sic). The
Court DENIES this request on two grounds.
First, video footage taken inside a correctional facility
by a third party implicates obvious safety and security
concerns. See, e.g., Gardner v. Univ. of Conn. Health Ctr., No.
3:12CV1168(CSH), 2013 WL 6073430, at *2 (D. Conn. Nov. 18, 2013)
(“Federal courts have repeatedly found good cause to limit
discovery or disclosure of information implicating the safety
and security of prisons.”).
Second, plaintiff fails to articulate how the current
operation of the identified toilets is relevant to the operation
of those same toilets during the time period at issue here,
approximately October 6, 2017, to October 24, 2017. See Doc.
#16, Amended Complaint at ¶42, ¶¶53-62, ¶69. Plaintiff may
instead serve a discovery request on defendant(s) seeking
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information concerning the operation of those toilets during the
relevant time period. If plaintiff has not already done so, then
on or before March 18, 2019, plaintiff may serve a discovery
request limited to this issue.
C.

Court Conference

Last, plaintiff requests “a Court conference with respect
to a discovery demand that I anticipate will breach the safety
and security of the [NHCC] i.e. the telephone and/or cellular #s
(personal) of defendants Belica, Clinton and Hines along with
the names of their cellular device providers[.]” Doc. #49 at 1
(sic). Plaintiff’s request for a Court conference is DENIED, as
premature. If plaintiff has not already done so, then on or
before March 18, 2019, plaintiff may serve written discovery
requests on defendants Belica, Clinton, and Hines seeking the
information identified in his letter motion and then await their
responses and/or objections. If plaintiff has a valid legal
basis upon which to seek a Court order compelling additional
responses to those discovery requests, then plaintiff may file
the appropriate motion (after complying with this District’s
local rules governing discovery disputes). The Court is hard
pressed, however, to imagine the circumstances under which it
would permit such a request, or how such a request could be
relevant to the claims remaining in plaintiff’s Amended
Complaint.
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3.

Conclusion
Thus, for the reasons stated, plaintiff’s letter motion

[Doc. #49] is DENIED.
This is not a Recommended Ruling. This is an order
regarding discovery which is reviewable pursuant to the “clearly
erroneous” statutory standard of review. See 28 U.S.C.
§636(b)(1)(A); Fed. R. Civ. P. 72(a); and D. Conn. L. Civ. R.
72.2. As such, it is an order of the Court unless reversed or
modified by the district judge upon motion timely made.
SO ORDERED at New Haven, Connecticut, this 7th day of March,
2019.
/s/
HON. SARAH A. L. MERRIAM
UNITED STATES MAGISTRATE JUDGE

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