Turley v. Clendenin

Filing 57

ORDER overruling in part and sustaining in part Plaintiff's objections 54 and 34 to Magistrate Judges Orders; denying with leave to refile summary judgment motion 42 ; denying as moot Plaintiff's motion for case status update 56 . Tur ley's original deposition will be excluded as evidence in this litigation, subject to the limitations set forth in the Order. To the extent that Defendant wishes to re-depose Turley, she must do so within thirty days from the date of this Order. In light of this Order and the additional opportunity to depose Turley, summary judgment motions shall be due on or before 4/24/2017. Signed by Judge Nancy J. Rosenstengel on 2/24/2017.(jmw)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
GREGORY J. TURLEY,

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Plaintiff,
vs.
JENNIFER L. CLENDENIN,
Defendant.

Case No. 3:15-CV-27-NJR-DGW

MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Pending before the Court are two objections filed by Plaintiff Gregory J. Turley in
response to two Orders entered by Magistrate Judge Wilkerson in Turley’ action against
Jennifer Clendenin. For the reasons set forth below, Turley’s objection (Doc. 54) to the
Order denying the motion objecting to his deposition (Doc. 52) is sustained, and his
objection (Doc. 34) to the Order concerning his motion to compel (Doc. 31) is overruled.
Standard of Review
When considering timely objections to pretrial matters not dispositive of a party’s
claim, the Court must modify or set aside any part of the order that is clearly erroneous
or contrary to law. FED. R. CIV. P. 72(a). Both objections lodged by Turley concern
nondispositive pretrial issues, accordingly, Magistrate Judge Wilkerson’s Orders are
reviewed under the clearly erroneous or contrary to law standard of review.

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Discussion
I. Objection to Plaintiff’s Deposition
On Friday, April 22, 2016, Defendant placed in the mail a required written notice
for an upcoming deposition her counsel sought to take of Turley. Even though counsel
sought to depose Turley the following Wednesday, counsel only allowed three days for
the notice to be picked up, processed, delivered to the correctional facility, searched and
cleared through security, sorted, and delivered to the relevant prisoner. 1 Despite this
unnecessarily short window for delivery, Defendant made no attempt to call Turley to
provide actual notice of the hearing.
At the time of the deposition, Turley clearly expressed his surprise by the
deposition and indicated that he was not prepared to proceed. He objected, but
agreed—subject to the objection—to participate. (Doc. 43-1, at p. 2). After the deposition,
Turley filed a motion objecting to the deposition on the basis that he did not receive “any
prior notice of said deposition…” in violation of the Federal Rules of Civil Procedure.
(Doc. 38, at p. 2). Turley asserted at the deposition that it is common knowledge that the
prison mail system is backed up three weeks and that without labeling the notice as
“legal mail” it was not expedited through the three week backlog. Magistrate Judge
Wilkerson rejected Turley’s assertions, finding the notice to be adequate because Turley
did not have to make travel arrangements and nevertheless, any error was harmless due
to his apparent ability to cogently testify at the deposition. (Doc. 52, at pp. 2-3). Turley
filed his timely objection on September 14, 2016. (Doc. 54).

The Court takes judicial notice that the United States Postal Service does not operate on Sunday. Placing
an item in the mail on a Friday only leaves Saturday, Monday, and Tuesday for notice to be delivered.

1

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Turley asserts that the original deposition was improper because he did not
receive notice and was therefore unable to prepare for his deposition. Federal Rule of
Civil Procedure 30(b)(1) requires a party give “reasonable written notice” of a deposition
before it may occur. The text of Rule 30(b)(1) does not provide a fixed number of days
that notice must be given before the deposition, instead, the reasonableness of the notice
turns on that case’s specific circumstances. One day has been held to be reasonable
notice. Radio Corp. of Am. v. Rauland Corp., 21 F.R.D. 113 (N.D.Ill. 1957) (When both
parties were abroad in the same city to take foreign depositions, serving notice one day
prior to the deposition was not unreasonably short). On the other hand, two working
days’ notice has been held to be unreasonable. Lloyd v. Cessna Aircraft Co., 430 F. Supp. 25
(E.D.Tenn. 1976) (Without a showing of special need to take depositions so rapidly, the
notice was patently unreasonable).
In this case, there is no indication that the notice was actually delivered to the
prison, much less that it was delivered to Turley prior to deposition. To the contrary,
Turley’s comments at the deposition appear to be that of genuine surprise to the
presence of the attorney and the prospect of a deposition. 2 While the Court does not
personally blame Defendant Clendenin for any backlog at the prison, the notification
procedures utilized were facially unreasonable under the circumstances. Dropping an
envelope in the mail 3 and assuming it will be delivered to a prisoner three days later is
patently unreasonable. The notice requirement of Rule 31(b)(1) exists not only to provide
Indeed, Defendant concedes that Turley did not receive notice of the deposition until the day it occurred.
(Doc. 48, at p. 2) (“Unfortunately, the Plaintiff did not receive the notice until the day of the deposition
although notice was sent.”)
3
There is no indication that the notice was sent as an “overnight delivery” or some other form of
expedited mailing.
2

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sufficient time to coordinate logistics, which typically is not a factor in prisoner cases,
but it also allows for the party being deposed to review documents, conduct legal
research when appropriate, and generally prepare for the deposition. Defendant
eliminated any possibility that Turley could be prepared for the deposition by only
allowing three days for the notice to reach him.
Additionally, Defendant’s error was not harmless. While Magistrate Judge
Wilkerson found only one instance where Turley indicated he was unprepared, a review
of the deposition reveals at least six occasions where the lack of notice stifled Turley’s
ability to provide testimony. See e.g. (Doc. 43-1, p. 3)(“If I knew you were coming I could
have reviewed this [complaint]” and “I don’t have my notes… calendars, and
documents…”); (Doc. 43-1, p. 4) (“I don’t have my notes…”); (Doc. 43-1, p. 5) (“I wish I
could have had time before you came to really sit down and read this last night…”);
(Doc. 43-1, p. 8) (“If I could have prepared yesterday and…if I know you were
coming…”); (Doc. 43-1, p. 9) (“I cannot say right off, I probably documented it, and I’d
have to look…”) (Doc. 43-1, p. 10). The lack of notice is even more prejudicial in this case
as Defendant now seeks to use these portions of Turley’s deposition in support of a
Motion for Summary Judgment. (Doc. 43, pp. 2; 3).
The Court is hesitant to overrule the Magistrate Judge’s Order given the litigious
nature of this litigant. On more than a few occasions, Turley has filed claims, motions
and objections in this District that have been without merit. But calling the notice
“reasonable” when such deficient procedures were employed and where Defendant
concedes that it was not received by Turley prior to the deposition is clearly erroneous.

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Finally, the error was not harmless. Turley indicated no less than six times that
the lack of notice inhibited his ability to provide full and complete answers. The
prejudice was solidified when Defendant cited to these same portions as evidence to
support her Motion for Summary Judgment.
With no reasonable means of correcting the error, Turley’s objection must be
sustained. Accordingly, Turley’s original deposition will be excluded as evidence in this
litigation. 4 To the extent that Defendant wishes to re-depose Turley, she must do so
within thirty days from the date of this Order. Turley is instructed to begin preparing for
his deposition immediately, as this Order serves as the reasonable notice required by
Rule 30(b)(1). 5
II. Objection Concerning Plaintiff’s Motion to Compel
During discovery, Turley sought to compel various documents from Defendant
concerning her performance as a paralegal assistant. Magistrate Judge Wilkerson denied
the motion finding that the requested documents were irrelevant to Turley’s retaliation
claim. Turley objected to the Order on the grounds that Magistrate Judge Wilkerson
committed an abuse of discretion when Turley was “restricted from relevant
information that coincides with the claim of retaliation he’s presented in this case.”
(Doc. 34, p. 1) (emphasis omitted).

4

This Order does not preclude Defendant from using the deposition for purposes of impeachment or
refreshing Plaintiff’s recollection.
5 In addition to the deficient notice procedures utilized by Defendant in this case, the Court is troubled by
two additional errors. First, while there is no prejudice to Turley, counsel should have lodged a notice of
appearance with this Court before taking action in this case. Second, after Turley filed his motion with the
Court, Defendant allowed over ninety days to elapse before filing a response (indeed, it was only after
Magistrate Judge Wilkerson provided a reminder that Defendant finally responded.) (Docs. 38; 47; 48).
This constellation of errors is unacceptable, and Defendant is advised that every effort must be made to
ensure they do not continue.

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Contrary to Turley’s assertions, the information he seeks is irrelevant to his
retaliation claim. Turley’s document request appears to be nothing more than a fishing
expedition to advance his campaign that Defendant Clendenin is an unqualified
paralegal assistant, which is not at issue before this Court. As such, the Court finds that
Magistrate Judge Wilkerson’s conclusion was not clearly erroneous or contrary to law
and Turley’s objection (Doc. 34) is overruled.
Conclusion
For the reasons set forth in part I, Turley’s objection to Magistrate Judge
Wilkerson’s Order (Doc. 54) is SUSTAINED. Turley’s original deposition will be
excluded as evidence in this litigation, subject to the limitations set forth above. To the
extent that Defendant wishes to re-depose Turley, she must do so within thirty days
from the date of this Order. In light of this Order and the additional opportunity to
depose Turley, the Motion for Summary Judgment (Doc. 42) is DENIED with leave to
refile on or before April 24, 2017.
For the reasons set forth in part II, Turley’s objection to the Order denying his
motion to compel is OVERRULED. Finally, Turley’s “Motion for Case Status Update” is
DENIED as moot. (Doc. 56).
IT IS SO ORDERED.
DATED: February 24, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge

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