Allemandi v. Hyde et al

Filing 104

MEMORANDUM. Signed by Judge Leonard P. Stark on 5/8/2019. (ddp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
HERMIONE KELLY IVY WINTER,
a/k/ a Najmaa-bint-Sakinah S. bint-Sard-Khaclijah,
f/k/ a David A. Allemancli,
Plaintiff,

v.

: Civ. No. 17-1280-LPS

HYDE, et al.,
Defendants.

MEMORANDUM
Plaintiff Hermione Kelly Ivy Winter, a/k/ a Najmaa-bint-Sakinah S. bint-Sard-Khaclijah,
f/k/a David A. Allemancli ("Plaintiff'), an inmate at the James T. Vaughn Correctional Center
("VCC'') in Smyrna, Delaware, tiled this action pursuant to 42 U.S.C. § 1983. (D.I. 2) She appears

prose and has been granted leave to proceed infar,na pauperis. (D.I. 7) She has tiled a number of
motions. (D.I. 25, 26, 34, 36, 37, 39, 44, 49, 51, 63, 73, 74, 76, 79) In addition, a non-party inmate
moves to intervene in the action and two non-party inmates move for leave to proceed in far,na

pauperis. (D.1. 56, 65, 67) Finally, Defendant Warden Dana Metzger ("Metzger'') moves to compel
Plaintiff to answer cliscovery. 1 (D.I. 71)

I.

Requests for Counsel
Plaintiff seeks counsel on the grounds that she is moving to have the matter proceed as a

class action, she does not have the ability to present her case, she is unskilled in the law and the case
is factually complex but not legally complicated, expert witness testimony will be necessary, she

1

To date, Metzger is the only defendant who has been served.
1

needs assistance with discovery, she cannot attain and afford counsel, and she is severely mentally ill,
referring to Civ. No. 17-1322-LPS (consolidated). (D.I. 25, 34, 49, 73) Plaintiff has also filed a
motion in all her cases for an extension of time and for a "hasty response" to her requests for
counsel. (D.I. 76)
The Court tums first to the motion for an extension of time and for a "hasty response."
(D.I. 73) Rather than file a motion directed to this case, the motion is a global motion that contains

case numbers for four cases filed by Plaintiff. Each case has different deadlines and different
parties. The motion refers to deadlines imposed in other cases. Plaintiff must file a motion specific
to this case if she wishes to obtain relief in this case. Therefore, the Court will deny this global
motion.
Plaintiff seeks counsel based on her claim she is severely mentally ill. The Court has a
responsibility to inquire sua sponte under Fed. R. Civ. P. 17 (c) (2) whether a pro se litigant is
incompetent to litigate her action and is, therefore, entitled either to appointment of a guardian ad
litem or other measures to protect her rights. See Powell v. Symons, 680 F.3d 301,303,307 (3d Cir.
2012). Rule 17(c)(2) provides that "[t]he court must appoint a guardian ad litem-or issue another
appropriate order-to protect a minor or incompetent person who is unrepresented in an action."
Rule 17(c) applies "[i]f a court [is] presented with evidence from an appropriate court of
record or a relevant public agency indicating that the party had been adjudicated incompetent, or if
the court receive[s] verifiable evidence from a mental health professional demonstrating that the
party is being or has been treated for mental illness of the type that would render him or her legally
incompetent." Powell, 680 F.3d at 307 (citing Fem/Ii v. River Manor Health Care Ctr., 323 F.3d 196,201
(2d Cir. 2003)). The court "need not inquire sua sponte into a pro se plaintiffs mental competence
based on a litigant's bizarre behavior alone, even if such behavior may suggest mental incapacity,"
2

but "if there has been a legal adjudication of incompetence and that is brought to the court's
attention, the Rule's provision is brought into play." Id. (citations omitted). The decision whether
to appoint a next friend or guardian ad litem rests with the sound discretion of the district court. See
id. at 303.

In the instant action, while Plaintiff makes allegations of mental illness, she has failed to
submit any verifiable evidence of incompetence. Plaintiff refers to a consolidated case she filed in
this Court where her request for counsel was granted. In that case, she also made bald allegations of
mental illness, but other factors warranted granting her motion. Thus, in accordance with Powell, the
Court has no duty to conduct a sua sponte determination of competency under Rule 17(c)(2).
A pro se litigant proceeding in farma pauperis has no constitutional or statutory right to
representation by counsel. See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace,
6 F.3d 147, 153 (3d Cir. 1993). However, representation by counsel may be appropriate under
certain circumstances, after a fincling that a plaintiffs claim has arguable merit in fact and law. See

Tabron, 6 F.3d at 155; see also Mallard v. United States Dist. Courtfar the S. Dist. ofIowa, 490 U.S. 296
(1989) (§ 1915(d) -- now§ 1915(e)(1) -- does not authorize federal court to require unwilling
attorney to represent indigent civil litigant, as operative word in statute is "request").
After passing this threshold inquiry, the Court should consider a number of factors when
assessing a request for counsel. Factors to be considered by a court in deciding whether to request a
lawyer to represent an indigent plaintiff include: (1) the merits of the plaintiffs claim; (2) the
plaintiffs ability to present his or her case considering his or her education, literacy, experience, and
the restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the
degree to which factual investigation is required and the plaintiffs ability to pursue such
investigation; (5) the plaintiffs capacity to retain counsel on his or her own behalf; and (6) the
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degree to which the case tums on credibility determinations or expert testimony. See Montgomery v.

Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. The list is not exhaustive, nor

is any one factor detenninative. See Tabron, 6 F.3d at 157.
Assuming, solely for the purpose of decidmg this motion, that Plaintiff's claims have merit in
fact and law, several of the Tabron factors militate against granting her request for counsel. After
reviewing Plaintiffs complaint, the Court concludes that the case is not so factually or legally
complex that requesting an attomey is warranted. In addition, while Plaintiff indicates that she
wishes this case to proceed as a class action, it has not been certified as such. Finally, to date,
Plaintiff has shown the ability to represent herself in this case. In light of the foregoing, the Court
will deny without prejudice to renew Plaintiffs requests for counsel. (D.I. 25, 34, 49, 73) Should

the need for counsel arise later, one can be sought at that time.

II.

CLASS ACTION
Plaintiff moves for class certification on the grounds that the claims are "very severe,

complex, and will required in depth investigation, expert witnesses, and a plethora of inmates," and
the issues affect all four Delaware prisons and a massive number of inmates. (D.I. 26, 63) A party
seeking class certification bears the burden of proving that the proposed class action satisfies the
requirements of Federal Rule of Civil Procedure 23. See Johnston v. HBO Film Mgmt., Inc., 265 F.3d
178, 183-84 (3d Cir. 2001 ).
To maintain a class action under Federal Rule of Civil Procedure 23, a plaintiff must first
show that "the class is so numerous that joinder of all members is impracticable" (numerosity); that
"there are questions of law or fact common to the class" (commonality); that "the claims or defenses
of the representative parties are typical of the claims or defenses of the class" (typicality); and that
"the representative parties will fairly and adequately protect the interests of the class" (adequacy).
4

See Fed. R. Civ. P. 23(a). Second, the plaintiff must show that the class action falls within one of the
three types enumerated in Rule 23(b). See Gayle v. Warden Monmouth

qy. Con: Inst., 838 F.3d 308-09

(3d Cir. 2016). "Class certification is proper only 'if the trial court is satisfied, after a rigorous
analysis, that the prerequisites' of Rule 23 are met." In re Ffydrogen Peroxide Antitrust Utig., 552 F.3d
305, 309 & n.5 (3d Cir. 2008), as amended Oan. 16, 2009) (quoting General Tel. Co. ofSouthwest v.

Falcon, 457 U.S. 147, 161 (1982)). Plaintiffs bare-bones motions fall far short of meeting her burden
of proving the proposed class action meets the requirements of Rule 23. Therefore, the motions
will be denied without prejudice.

III.

MOTION FOR PRELIMINARY INJUNCTION RELIEF AND TEMPORARY
RESTRAINING ORDER
Plaintiff seeks injunctive relief to enjoin Defendants, their agents, servants, employees, and

attorneys, and those acting in concert or participation with them, from punishing her in any way,
shape, or form. (D.I. 36) She refers to hole time, reclassification to maximum, placement in max,
write-ups, and revocation of good time as examples of punishment. Plaintiff argues that she is
recognized as female, and is enrolled in the transition program, but Defendants refuse to transfer
her to the Baylor Women's Correctional Institution ("BWCI'') where the transition program is also
offered. Defendants further refuse to provide her with religious clothing, and the transition group at
the VCC is causing her trauma. Plaintiff also states that recently she was notified that if she missed
"one group" she would spend up to 15 days in the hole, one year in the back, and lose good time,
while other inmates are allowed three unexecuted absences in group. (D.I. 36 at fl 11, 12)
Metzger opposes the motion on the grounds that in a different case (Civ. No. 16-890-LPS)
Plaintiff previously sought, and was denied, her request for a transfer to Baylor. In addition,
Metzger states that Plaintiff made the same request in State Court, where it was also denied.
Metzger also observes that the allegations in the motion do not relate to the claims in the underlying

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complaint. Metzger provides the declarations of Captain Bruce Burton (''Burton") and Captain
Ramon Taylor ("Taylor") that indicate Plaintiff has received treatment, certain housing conditions
and transitions, and is treated no differently from similarly-situated inmates. Plaintiff has not, they
explain, been treated differently or subjected to punishment because of her gender identification.
A preliminary injunction is "an extraordinary remedy that should be granted only if: (1) the
plaintiff is likely to succeed on the merits; (2) denial will result in irreparable harm. to the plaintiff;
(3) granting the injunction will not result in irreparable harm. to the defendant; and (4) granting the
injunction is in the public interest." NutraSweet Co. v. Vit-Mar Enterprises, Inc., 176 F.3d 151, 153 (3d
Cir. 1999) ("NutraSweet II"). These same elements also apply to temporary restraining orders. See

NutriSweet Co. v. Vit-Mar Enterprises., Inc., 112 F.3d 689,693 (3d Cir. 1997) ("NutraSweet I")
(temporary restraining order that continues beyond time permissible under Rule 65 must be treated
as preliminary injunction, and must confonn to standards applicable to preliminary injunctions).
Furthennore, because of the intractable problems of prison administration, a request for injunctive
relief in the prison context must be viewed with considerable caution. See Rhsh v. Comctional Med.

Seruices, Inc., 287 F. App'x 142, 144 (3d Cir. July 31, 2008) (citing Goff v. Harper, 60 F.3d 518, 520 (8th
Cir. 1995)).
Upon review of Plaintiffs claims, the Court concludes that she has not demonstrated a
likelihood of success on the merits. The Court first notes that the claims raised in the Complaint
concern only a Fifth Amendment good time credit issue, and not most of the claims raised in the
motion for injunctive relief. Next, the Court takes judicial notice that Plaintiff sought similar relief
from the Superior Court of the State of Delaware when she filed a petition for mandamus relief and
sought a transfer from the VCC to BWCI. See Winter v. Delawan Dep't ofJustice and the Delawan Dep't

of Co,r., C.A. No. S18M-09-023 ESB. The Superior Court dismissed the petition with prejudice on
6

December 7, 2018. Moreover, prison officials have discretion to house inmates at the facilities they
choose. See Walls 11. Tt!Jlor, 856 A.2d 1067, 2004 WL 906550 (Del. Apr. 26, 2004) (table) (citing

Brathwaite 11. State, No. 169, 2003 (Del. Dec. 29, 2003)); see also O/im 11. Wakinekona, 461 U.S. 238,
251(1983) (stating inmate has no due process right to be incarcerated in particular institution
whether it be inside state of conviction or outside that state). Nor do inmates have a "legitimate
statutory or constitutional entitlement'' to any particular custodial classification even if a particular
classification would cause that inmate to suffer a "grievous loss." Moody 11. Daggett, 429 U.S. 78, 88
n.9 (1976).
In addition, Plaintiff has not produced evidence of irreparable hann. While she contends
she is treated differently from other inmates, the declarations of Burton and Taylor indicate that
these two witnesses are not aware of Plaintiff being disciplined or punished as a result of her gender
identification, and further that decisions regarding her housing assignment were not made in an
effort to punish her. (See D.I. 41 at Bxs. J, M) The record does not demonstrate a likelihood of
success on the merits.
Granting the injunctive relief Plaintiff seeks would also be in contravention of the public's
interest in the effective and orderly operation of this State's prison system. See Carrigan

11.

State of

Delaware, 957 F. Supp. 1376, 1385 (D. Del. 1997). Accordingly, Plaintiff's motion will be denied.
IV.

MOTION FOR FREE COPYWORK
Plaintiff indicates that much of her property was destroyed. She moves the Court for one

free copy of her Complaint. (D.I. 37) The motion will be granted. Plaintiff will be provided a free
copy of her complaint (D.I. 2). She is advised that in the future she will be required to pay any
photocopy fees when she requests documents.

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V.

MOTION FOR LAW LIBRARY ACCESS
Plaintiff states that she has very limited law library access. (D.I. 39) According to Plaintiff,

she is not allowed toe-file or file any DOC rule or policy with the courts. She also asks for letters
from the Court regarding her need for access so that she may prepare documents for filing and
obtain USM-285 forms. While not clear, it seems that Plaintiff is seeking legal advice from the
Court. The Court, however, may not provide Plaintiff legal advice. Metzger responds that when
Plaintiff has court-imposed deadlines she receives access to the law library twice a week; once the
deadline is met, the law library access reverts to once a week. (See D.I. 48-1)
Persons convicted of serious crimes and confined to penal institutions retain the right of
meaningful access to the courts. See Bounds v. Smith, 430 U.S. 817 (1977). This access "requires
prison authorities to assist inmates in the preparation and filing of meaningful legal papers by
providing prisoners with adequate law libraries or adequate assistance from persons." Id. at 828.
This right "must be exercised with due regard for the 'inordinately difficult undertaking' that is
modem prison administration." Thornburgh v. Abbott, 490 U.S. 401,407 (1989) (quoting Turner v.

Safley, 482 U.S. 78, 85 (1987)). Thus, courts have been called upon to review the balance struck by
prison officials between the penal institution's need to maintain security within its walls and the
rights of prisoners. See Howard v. Snyder, 389 F. Supp. 2d 589, 593 (D. Del. 2005).
Plaintiff is required to have access at least to a prison paralegal or paging system by which
she may obtain legal materials. See Abdul-Akbar v. Watson, 4 F.3d 195,203 (3d Cir.1993) (holding
that segregated prisoners who do not have access to institution's main law library must have some
means by which documents and materials can be identified by and fu.mished to them in timely
fashion). Plaintiffs letter indicates that she is not being deprived of access to the law library.

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Rather, her access is limited. The Court takes note of her complaints but, at this time, Plaintiffs
letter does not warrant action by the Court. Therefore, the motion will be denied.

VI.

MOTION FOR DEFAULT JUDGMENT
Plaintiff seeks default judgment. (D .I. 44) Metzger opposes on the grounds that he has

answered and otherwise appeared and Hyde and Klein have yet to be served. The Court docket
confirms Metzger's position. Thus, default judgment is not appropriate. See Fed. R. Civ. P. 55(a)
and (b).

VII.

MOTION FOR LEAVE TO AMEND
Plaintiff moves to amend to add as defendants Joshua Gladden ("Gladden"), Christopher

Moore ("Moore"), and Steven Berry ("Berry") -- whose affidavits have requested they be added as
defendants -- and to·add Christopher B. Sands ("Sands") as another plaintiff. (D.I. 51) In addition,
Berry has filed a motion to intervene as a defendant, and Gladden and Sands have filed requests to
proceed in for,na pauperis. (See D.I. 56, 65, 67) Metzger opposes the motion.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of course
within 21 days after serving it or, if the pleading is one to which a responsive pleading is
required, 21 days after service of a responsive pleading or 21 days after service of a
Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its pleading only with the
opposing party's written consent or the court's leave. Rule 15 provides that courts should freely give
leave to amend when justice so requires.
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure
that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco

Chem. Co., 921 F.2d 484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is not
automatic. See Dover Steel Co., Inc. v. Har!fordAccident and Indem., 151 F.R.D. 570, 574 (E.D. Pa. 1993).
9

Leave to amend should be granted absent a showing of "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of the allowance of the amendment, futility of
amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); see also Oran v. Stafford, 226 F.3d 275,291
(3d Cir. 2000). Futility of amendment occurs when the complaint, as amended, does not state a
claim upon which relief can be granted. See In re Burlington Coat Factory Sec. Utig., 114 F.3d 1410,
1434 (3d Cir. 1997). If the proposed amendment "is frivolous or advances a claim or defense that is
legally insufficient on its face, the court may deny leave to amend." Hamson Beverage Co. v. Dribeck

Importers, Inc., 133 F.R.D. 463,468 (D.NJ. 1990).
In addition, Local Rule 15.1 provides that a party who moves to amend a pleading shall
attach to the motion: (1) the proposed pleading as amended, complete with a handwritten or
electronic signature; and (2) a form of the amended pleading which indicates in what respect it
differs from the pleading which it amends, by bracketing or striking through materials to be deleted
and underlining materials to be added.
Plaintiff has failed to comply with the Local Rules of this Court that require a form of the
amended pleading which indicates in what respect it differs from the pleading which it amends, by
bracketing or striking through materials to be deleted and underlining materials to be added.
Therefore, the Court will deny the motion for leave to amend without prejudice to renew the
motion. (D.1. 51) The Court will also deny the motions for leave to proceed in farma pauperis as
Gladden and Sands are not parties to this action. Finally, the Court will deny Betty's motion to
intervene as a defendant as procedurally improper. (D.I. 56)

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VIII. DISCOVERY MOTIONS
Metzger moves to compel Plaintiff to response to discovery requests served on Plaintiff on
November 5, 2018. (See D.I. 30, D.I. 31, D.I. 71) Plaintiff moves to compel Metzger to respond to
her first request to produce. (See D.I. 57, 74) Finally, Plaintiff moves for depositions by oral
examination and a pretrial conference. (D.I. 79)
A.

Metzget's Motion To Compel

On November 5, 2018, Metzger served interrogatories and a request for production of
documents upon Plaintiff. (See D.I. 30, 31) Plaintiff responded to the discovery requests on
November 13, 2018,January 3, 2019, and January 7, 2019. (See D.I. 32, 33, 35)
Pursuant to Fed. R. Civ. P. 26, "[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party's claim or defense--including the existence, description, nature,
custody, condition, and location of any documents or other tangible things and the identity and
location of persons who know of any discoverable matter. For good cause, the court may order
discovery of any matter relevant to the subject matter involved in the action. Relevant information
need not be admissible at the trial if the discovery appears reasonably calculated to lead to the
discovery of admissible evidence." Fed. R. Civ. P. 26(b)(1)

1.

Request for Production of Documents

Metzger seeks responses to Request Nos. 1 through 14, none of which were responded to by
Plaintiff, on the grounds that all of her paperwork was taken as a "fire hazard" and not returned.
(D.I. 35) Plaintiff states that she would have to pay 25 cents per page to copy the documents and
she does not possess the funds to pay for the copying charge.
Pursuant to Fed. R. Civ. P. 34(a) Plaintiff shall produce responsive documents in her
possession, custody, or control What this means is that if the documents requested are being stored
11

by the VCC and Plaintiff has the ability to review the documents to respond to the discovery
requests, she must do so. Because Plaintiff may e-file her responses, Plaintiff should not have to pay
to photocopy the documents; she will retain the original documents. Therefore, this portion of the
motion to compel will be granted to the extent the documents requested exist and they are in the
possession, custody, or control of Plaintiff.

2.

Interrogatories

Metzger moves to compel Plaintiff to answer Interrogatories 1 through 21. The Court finds
that although Plaintiff objected to many interrogatories, she has adequately answered Interrogatories
Nos. 10, 11, 12, 13, 15, 16, 17, and 18. The Court overrules Plaintiffs objections to Interrogatories
1.a., 1.b., 5, and 6. Plaintiff shall answer these interrogatories. In addition, Plaintiff shall supplement
her response to Interrogatory 1.c.
Plaintiff has objected to Interrogatories 1.d. and e., 2, 3, 4, 7, 8, 9, 14, 19, 20, and 21 on the
grounds that she would ''be self-incriminating myself and/ or violated DOC Rules or policies
providing this information that defendants already have access to." Responses to interrogatories
propounded in a civil action may come within the privilege against self-incrimination. See S.E. C. v.

Leach, 156 F. Supp. 2d 491, 494 (E.D. Pa. 2001) (citing, inter alia, North River Ins. Co. v. Stefanou, 831
F.2d 484, 486-87 (4th Cir. 1987) (holding that privilege "protects an individual not only from
involuntarily becoming a witness against himself in a criminal proceeding but also from answering
specific allegations in a complaint or filing responses to interrogatories in a civil action where the
answers might incriminate him in future criminal actions")); see also Burt Hill v. Hassan, Inc., 2009 WL
473023, at *3 (W.D. Pa. Dec. 4, 2009) ("Responses to interrogatories clearly may fall within the
privilege against self-incrimination."). "[A] witness cannot relieve himself of the duty to answer
questions ... put to him by a mere blanket invocation of the privilege." National Lift Ins. Co. v.
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Har!fordAccident & Indem. Co., 615 F.2d 595,598 (3d Cir. 1980). Instead, the witness claiming the
privilege "must place before the court enough information to 'effectively determine whether a
responsive answer to [the] question or an explanation of why it cannot be answered might be
incriminating."' Burt Hill 2009 WL 4730231 at *4 (quoting National Lift Ins. Co., 615 F.2d at 598).
Although Plaintiff has offered some explanation for invoking the privilege as a basis for not
answering Interrogatory Nos. 1.d. and e., 2, 3, 4, 7, 8, 9, 14, 19, 20, and 21, she has not provided a
sufficient and particularized justification that would permit the Court to find that the privilege
allowed Plaintiff to withhold answers to any of these interrogatories. Before any Fifth Amendment
privilege may attach, Plaintiff must clarify the basis for asserting the privilege, and do so with
specificity. Therefore, the Court will direct Plaintiff either to answer the interrogatories in question,
or if she believes she is entitled to refuse to answer on the basis of privilege, explain with
particularity to Metzger and the Court the basis for her assertion.

B.

Plaintiff's Motion To Compel

Plaintiff served her first request to produce documents on March 11, 2019 (see D.I. 57) and
amended it on March 12, 2019 (see D.I. 59). Metzger timely responded to the requests on April 9,
2019. (See D.I. 80) Therefore, Plaintiffs motion to compel will be denied.

C.

Request for Depositions

Plaintiff moves for an order to conduct oral depositions. (D.I. 79) She proceeds pro se and
has been granted leave to proceed in farma pauperis. Plaintiff also asks for a pretrial conference in an
effort to move the case forward.
It is Plaintiffs responsibility to pay for the costs associated with the taking of depositions.
The Court has no authority to finance or pay for a party's discovery expenses. See Badman v. Stark,
139 F.R.D. 601,605 (M.D. Pa. 1991) (§ 1915 does not require government to advance funds for
13

deposition expenses); Doe v. United States, 112 F.R.D. 183, 184-85 (S.D.N.Y. 1986) (jnfo1111a pauperis
statute does not require government to advance funds for deposition expenses); Toliver v. Communi'!J

Action Comm'n to Help the Econ., 613 F. Supp. 1070, 1072 (S.D.N.Y. 1985) (no clear statutory authority
for repayment of discovery costs for pro se in fo1111a pauperis plaintiff); Ronson v. Commissioner of Corr.

for State ojN.Y., 106 F.R.D. 253,254 (S.D.N.Y. 1985) (indigent prisoner's motion to depose
physician at corrections facility denied); Sturdevant v. Deer, 69 F.R.D. 17, 19 (E.D. Wisc. 1975) (28
U.S.C. § 1915 "does not extend to the cost of taking and transcribing a deposition.").
Plaintiff cannot depose parties or non-parties without paying for the costs associated with
conducting depositions; for example, paying court reporter fees. In addition, Plaintiff cannot depose
a non-party without issuing a subpoena to compel his or her attendance, see Fed. R. Civ. P. 45, and
an inmate proceeding in fo1111a pauperis in a civil action may not issue subpoenas without paying the
required fees, see Pedraza v. Jones, 71 F.3d 194, 196 n.4 (5th Cir. 1995); Fernandez v. Kash N' Karry Food

Stores, Inc., 136 F.R.D. 495,496 (lvI.D. Fla. 1991) (witness and mileage fees required to be paid by
indigent plaintiff).
There has been no showing that Plaintiff has the ability to pay the fees associated with
conducting depositions. Therefore, the Court will deny the motion without prejudice to renew upon
a showing by Plaintiff of her financial ability to pay for the costs associated with conducting
depositions. The request for a pretrial conference is premature (for reasons including that
Defendants Hyde and Klein have yet to be served).

IX.

CONCLUSION
For the above reasons, the Court will: (1) deny Plaintiffs requests for counsel without

prejudice to renew (D.I. 25, 34, 49, 73); (2) deny the motions to proceed as a class action (D.I. 26,
63); (3) deny the motion for injunctive relief (D.I. 36); (4) grant the motion for copy work (D.I. 37);
14

(5) deny Plaintiffs motion for law library access (D.I. 39); (6) deny Plaintiffs motion for default
judgment (D.I. 44); (1) deny Plaintiffs motion for leave to amend (D.I. 51); (8) deny Steven Berry's
motion to intervene (D.I. 56); (9) deny non-parties' motions for leave to proceed in farma pauperis

(D.I. 65, 67); (10) grant in part and deny in part Defendant Dana Metzger's motion to compel (D.I.
71); (11) deny Plaintiffs motion to compel (D.I. 74); (12) deny the motion for an extension of time
and for a "hasty response" to requests for counsel (D.I. 76); and (13) deny Plaintiffs motion for
depositions by oral examination and pretrial conference (D.I. 79).

~~f/l--,
HONORABLE LEONARD P. STARK
UNITED STATES DISTRICT JUD GE

Wilmington, D elaware
May 8, 2019

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