United States of America v. Dillon et al

Filing 46

MEMORANDUM DECISION & ORDER It is hereby ORDERED, that the motion for transport (docket no. 36 ) is DENIED; It is further ORDERED, that the motion for leave to depose defendant Dillon (docket no. 32) is GRANTED; It is further ORDERED, that the motion to quash or for protective order (docket no. 33 ) is DENIED. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

UNITED STATES OF AMERICA,
Case No. 1:17-cv-498-BLW
Plaintiff,
v.

MEMORANDUM DECISION AND
ORDER

CHERIE R. DILLON and DENTAL
HEALTHCARE WITH HEART, P.C.,
(successor in interest to DENTAL
HEALTHCARE WITH HEART,
PLLC),,
Defendants.

INTRODUCTION
The Court has before it a motion to transport and motion for protective order filed
by defendant Dillon, and a motion to take Dillon’s deposition filed by the Government.
The motions are fully briefed and at issue. For the reasons expressed below, the Court
will deny the motion to transport and the motion for protective order, and will grant the
motion to take defendant’s deposition.
ANALYSIS
Motion to Transport
Defendant Dillon is presently incarcerated at FCI Aliceville, Alabama, following
her sentencing on 48 counts of identity theft and Medicaid fraud. In this civil action, the

Memorandum Decision & Order – page 1

Government alleges that Dillon violated the False Claims Act by presenting fraudulent
Medicaid claims to the United States.
Dillon has filed a motion asking that she be transferred to a prison facility closer to
her attorneys, who reside in Boise Idaho. She argues that being in Alabama, she (1) has
difficulty communicating with counsel in Idaho, and (2) cannot afford to have her
counsel come to Alabama for her deposition.
In support of her motion, she cites the All Writs Act, 26 U.S.C. § 1651, and the
holding in Holt v. Pitts 619 F.2d 558 (6th Cir. 1980) that the Act gives federal courts
discretion to “issue writs requiring penal authorities to produce prisoners at judicial
proceedings in civil cases.” Id. at 561.
As Dillon recognizes, Holt stated that “a court should issue a writ that requires the
production of a prisoner [in a civil case] only in those cases where the prisoner’s physical
presence will contribute significantly to a fair adjudication of his claims.” Id. The
district court in Holt ultimately refused to grant the writ and the Sixth Circuit affirmed,
stating “[t]he cost and inconvenience that would have been involved in the transportation
of plaintiff from the federal penitentiary in California to the district courthouse in
Tennessee would have been entirely disproportionate to the prospective benefits.” Id.
While Holt is not binding on this Court, its analysis is persuasive. Dillon fails to
identify any specific communication problems other than those always associated with
distance – that is an inconvenience, not a barrier, and if it triggered transport, all inmates
would be filing such requests. Dillon says she lacks the funds for her counsel to travel,
but she apparently has the funds to pay him for attending the deposition and continuing to
Memorandum Decision & Order – page 2

represent her. This sounds again like an inconvenience, not a barrier. There would be a
substantial cost to transfer Dillon across the country and a real concern with overriding
the Bureau of Prisons’ designation expertise. Because there has been no showing that
transfer would contribute significantly to a fair adjudication of her claims, the Court will
deny Dillon’s motion.
Motion to Take Dillon’s Deposition & Motion for Protective Order
The Government has moved under Rule 30(a)(2)(B) to take Dillon’s deposition.
Dillon responded with a motion for protective order seeking to block the Government
from taking her deposition, and from taking any other depositions without her being
present.
Dillon has personal knowledge of relevant facts, and thus the Government has
made the necessary showing under Rule 30(a)(2)(B). Dillon argues, however, that she is
entitled to a protective order blocking that deposition because she lacks financial
resources to “afford legal counsel to be present for her deposition in Aliceville,
Alabama.” See Brief (Dkt. No. 33) at p. 2. She cites no authority that this reason justifies
protecting her from being deposed; indeed, having no right to appointed counsel,
Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), it follows that her lack of funds
to fly her attorney to Alabama cannot be a justification for an order blocking the
deposition.
Dillon also seeks a protective order blocking any deposition of another person
unless Dillon could be physically present. She does not identify any specific depositions
and explain why her physical presence is necessary. She has no right to be physically
Memorandum Decision & Order – page 3

present at depositions of other persons, Hernandez, 881 F.2d at 770, and has made no
showing of any extraordinary reason that would justify her presence. This motion will be
denied.
ORDER
In accordance with the Memorandum Decision set forth above,
NOW THEREFORE IT IS HEREBY ORDERED, that the motion for transport
(docket no. 36) is DENIED;
IT IS FURTHER ORDERED, that the motion for leave to depose defendant
Dillon (docket no. 32) is GRANTED;
IT IS FURTHER ORDERED, that the motion to quash or for protective order
(docket no. 33) is DENIED.

DATED: February 4, 2019

_________________________
B. Lynn Winmill
U.S. District Court Judge

Memorandum Decision & Order – page 4