Smith v. Buss et al
Filing
168
OPINION AND ORDER denying 164 Rule 12(f) Motion to Strike and/or supress his deposition. Signed by Magistrate Judge Christopher A Nuechterlein on 8/6/2012. (kds)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF INDIANA
SOUTH BEND DIVISION
ROY AUSTIN SMITH,
Plaintiff,
v.
DAWN BUSS, et al.,
Defendants.
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CAUSE NO. 3:07-CV-0207 PS
OPINION AND ORDER
On October 20, 2011, the Defendants took Plaintiff Roy Smith’s deposition
at the Wabash Valley Correctional Facility, where he is housed. This matter is
before the Court on Smith’s motion to strike and/or suppress his deposition.
Smith first asserts that the deposition was taken with less than fourteen
days notice in violation of Local Rule 30.1. But in this case, on September 27,
2011, this Court entered an order granting the Defendants leave to depose Smith
at the Wabash Valley Correctional Facility (DE 129). The deposition itself did not
take place until October 20, 2011, so Smith had far more than fourteen days
notice that the Defendants would be taking his deposition. This Court concludes
that Smith suffered no injury from the scheduling of the deposition on October 20,
2011, and that there is no reason to require the Defendants to take a second
deposition of Smith.
The Plaintiff next asserts that “the statements and admissions sought to be
suppressed were obtained in violation of the Plaintiff’s Fifth Amendment . . . right
not to be compelled to be a witness against himself” (DE 164 at 2). But this is a
civil case, and “in a civil case, the Fifth Amendment does not privilege from
disclosure facts which simply would tend to establish civil liability but does
protect witnesses from being required to make disclosures, otherwise compellable
in the trial court's contempt power, which could incriminate them in a later
criminal prosecution.” National Acceptance Co. Of America v. Bathalter, 705 F.2d
924, 926-7 (7th Cir. 1983). The Defendants seek to use Smith’s deposition in this
civil case, which does not implicate the Fifth Amendment’s prohibition against
compelling self-incrimination. Smith does not state what statements he made that
he believes might be used later in a criminal prosecution against him, but if the
State ever attempts to use any of Smith’s deposition testimony against him in a
criminal prosecution, he may raise a Fifth Amendment objection at that time and
in that case.
Smith states that the notice of deposition advised him that “[t]he deposition
is to continue from day to day until completed,” which he asserts violates Fed. R.
Civ. P. 30(d)(1) which provides that “[u]nless otherwise stipulated or ordered by
the court, a deposition is limited to 1 day of 7 hours.” But Smith does not assert
that the deposition actually lasted more than seven hours on October 20, 2011,
or that the deposition was continued on October 21, 2011. Accordingly, Smith’s
claim that the deposition violated the provisions of Fed. R. Civ. P. 30(d) is without
merit.
Finally, Smith contends that the statements in his deposition “were
obtained as a result of psychological and mental coercion . . . and were, therefore,
involuntarily given” (DE 164 at 2). He specifically alleges that during the
deposition he remained in leg shackles and a belly chain (DE 165 at 4). This
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deposition was taken at the Wabash Valley Correctional Facility, one of the
Indiana Department of Correction’s “supermax” facilities. In its order granting
leave to the defendants to depose Smith, this Court afforded the facility’s
superintendent the authority to select the place within the facility where the
deposition would occur and control over the terms of the deposition (DE 129). If
the Superintendent or his designee determined that security needs of the facility
dictated that Smith remain shackled during the deposition, this Court will not
second guess that decision.
Smith also asserts that during the deposition he “requested a break which
was denied by Attorney General Donald G. Banta” (DE 165 at 5). He asserts that
the denial of his request for a restroom break “exacerbated and intensified [his]
fear of not being able to relieve himself.” (Id.). This claim, however, is rebutted by
the deposition itself.
Even though he has moved to strike or suppress his deposition, Smith has
submitted portions of his deposition to the Court in support of his motion for
summary judgment. One of the portions of the deposition submitted by the
Plaintiff contains the following passage:
A. Can we take a five-minute break, Mr. Banta?
Q. If you could just answer this question, then we can take a short break.
A. Okay.
Q Exhibit 28.
A. Uh-huh, Yeah,
Q. And this is Officer Masks’s statement that your’re (sic) referring to?
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A. Yes.
Mr. Banta: Okay. You wanted to take a break?
Witness: Yes Sir.
Mr. BANTA: Okay. Go off the record.
(OFF RECORD).
DE 159-1 at 2-3). This passage from the deposition establishes that Smith’s claim
that the denial of his request for a restroom break exacerbated and intensified his
fear of not being able to relieve himself is without merit.
For the foregoing reasons, the Court DENIES the Plaintiff’s motion to strike
and/or suppress his deposition (DE 164).
SO ORDERED.
Dated this 6th Day of August, 2012.
S/Christopher A. Nuechterlein
Christopher A. Nuechterlein
United States Magistrate Judge
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