Tyson v. Daspit et al

Filing 2

ORDER re 1 Petition to Perpetuate Testimony, filed by Christopher Liroy Tyson. Considering the foregoing, the movant's Verified Petition to Take Depositions to Perpetuate Testimony Before Action is DENIED. Signed by Magistrate Judge Carol B Whitehurst on 5/3/2019. (crt,Crick, S)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION
CHRISTOPHER LIROY TYSON MISC. NO. 19-MC-0031
VERSUS

MAGISTRATE JUDGE WHITEHURST

PHILLIP MATTHEW DASPIT, ET AL.
RULING AND ORDER
Pending before the Court is the Verified Petition to Take Depositions to
Perpetuate Testimony Before Action [Doc.1], filed by the movant, Christopher Liroy
Tyson. For the following reasons, the motion is DENIED.
The instant motion comes before the Court as a miscellaneous matter, having
been filed before the filing of a federal complaint. In his motion, the movant states
that he expects to be a plaintiff in an action that has yet to be filed, and that the
subject matter of the expected action is an action for damages, punitive damages, and
attorney fees under the provisions of 42 U.S.C §§1983 and 1988 for a violation of the
movant’s constitutional rights under the Fourth Amendment for false arrest, false
imprisonment, excessive force, and malicious prosecution.
A brief review of the alleged facts show that the movant alleges he was falsely
arrested and confined after being kicked and unlawfully restrained in the emergency
room of Our Lady of Lourdes Regional Medical Center (“OLOL”) during the early
morning hours of June 17, 2018. The movant alleges that a bill of information was
filed on August 9, 2018, charging him with Disarming a Police Officer (Felony) in

violation of LA R.S. §14:34.6; Disturbing the Peace by Fistic Encounter
(Misdemeanor) in violation of LA R.S. §14:103; Criminal Damage to Property
(Misdemeanor) in violation of LA R.S. §14:56(B)(1); and Resisting Arrest in
violation of LA R.S. §14:108. On September14, 2018, the District Attorney’s office
dismissed the Disarming a Police Officer charge because the Lafayette Police
Department does not issue its officers knives. The movant alleges that was released
from confinement on August 24, 2018, after sixty-nine days of alleged false
imprisonment based upon a fabricated felony charge.
In his motion, the movant states that he is unable to file his action at the present
time because “further investigation is needed to adequately draft a federal complaint
with all culpable parties and claims for damages.” The movant goes on to state that
he wishes to perpetuate the testimony of two OLOL security guards, Christopher
Brown and Scott E. Christianson, who were eyewitnesses to the incident in question.
The movant argues that he needs to perpetuate this testimony because his family
members have received reports from other employees of the OLOL that certain staff
members of OLOL are/ seeking to induce the security guards to testify in conformity
with the allegations of the arresting officer.
Rule 27 of the Federal Rules of Civil Procedure allows the perpetuation of
testimony before the filing of a federal action. In order to obtain relief under this
Rule, the movant must show that he (A) expects to be a party to an action cognizable
in a United States court but cannot presently bring it or cause it to be brought; (B) the
subject matter of the expected action and the petitioner's interest; (C) the facts that the
2

petitioner wants to establish by the proposed testimony and the reasons to perpetuate
it; (D) the names or a description of the persons whom the petitioner expects to be
adverse parties and their addresses, so far as known; and (E) the name, address, and
expected substance of the testimony of each deponent. Fed. R. Civ. P. 27 (A)-(D).
The jurisprudence makes clear that unsubstantiated, conclusory allegations that
evidence will be lost are not sufficient to warrant relief under Rule 27. In In re
Ramirez, 241 F.R.D. 595, 596 (W.D. Tex. 2006), a §1983 action, the court denied a
movant’s request for police department records when the movant argued he
“believe[d] that there [was] a substantial risk that the City will lose or despoil
evidence.” The court stated:
This conclusory statement does not in any way show that evidence is
likely to be lost pending the filing of the lawsuit. . . . [p]etitioner clearly
has failed to adequately set forth the factual basis underlying his belief
that the testimony he seeks to obtain will be lost if not preserved.
Indeed, petitioner has wholly failed to allege any facts to support his
conclusory assertion that the testimony he wishes to elicit prior to filing
his complaint will be unattainable or otherwise unavailable at a later
date if not preserved before his complaint is filed.
In re Ramirez, 241 F.R.D. at 596.
Additionally, the Court went on to note that “Rule 27 affords relief only to
those petitioners seeking to ‘perpetuate testimony.’ It is well-established in case law
that perpetuation means the perpetuation of known testimony. In other words, Rule
27 may not be used as a vehicle for discovery prior to filing a complaint . . . It is
available in special circumstances to preserve testimony which could otherwise be
lost.”).” Id. at 596 (emphasis added), citing In re Ford, 170 F.R.D. 504, 507
(M.D.Ala.1997) (“Here, Ford seeks to discover or uncover testimony, not to
3

perpetuate it.... Ford simply wants to know who shot Roberts and why. Rule 27
simply does not provide for such discovery.”).
In the instant matter, the movant argues only that he has been told by family
members that other OLOL employees are possibly “seeking to induce the security
guards to testify in conformity with the allegations” of the arresting officer. There
is no allegation that the officers are expected to testify untruthfully, only that other
employees may seek to induce them to do so. As the court stated in In re Ramirez,
perpetuation under Rule 27 means the perpetuation of known testimony. Here, the
movant has not set forth what the known testimony of the officers in question will be,
or why the testimony must be perpetuated, other than a fear that the officers will not
testify truthfully. As set forth in the jurisprudence, Rule 27 may not be used as a
vehicle for discovery prior to filing a complaint. Thus, the requested depositions
cannot be used to glean what the officers will testify to and what evidence they can
provide before the lawsuit is filed. Moreover, whether a witness will testify truthfully
is a question in every case. The movant’s allegations are conclusory allegations that
potential witnesses might not tell the truth. The jurisprudence makes clear that such
circumstances do not warrant relief under Rule 27.
Considering the foregoing, the movant’s Verified Petition to Take Depositions
to Perpetuate Testimony Before Action [Doc.1] is DENIED.
Signed at Lafayette, Louisiana, this 3RD day of May, 2019.

4