Wagner v. Gober et al

Filing 44

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for deposition of the defendant is DENIED. [Doc. 39 ] Signed by District Judge Charles A. Shaw on 1/5/17. (JWD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

BENJAMIN WILLIAM WAGNER,
Plaintiff,
v.
JAMES GOBER, et al.,
Defendants.

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No. 4:15-CV-1789 CAS

MEMORANDUM AND ORDER
This matter is before the Court on pro se plaintiff Benjamin William Wagner’s motion to
take the deposition of remaining defendant Warner. Defendant opposes the motion. Plaintiff did
not file a reply and the time to do so has passed. For the following reasons, the motion will be
denied.
Plaintiff, a prisoner at Farmington Correctional Center in Farmington, Missouri, filed this
suit under 42 U.S.C. § 1983 against Warner, a Farmington functional unit manager.1 Plaintiff
alleges that when he was being moved to administrative segregation (“TASC”) on October 15, 2014,
defendant Warner did not allow him to take his legal materials along to TASC and instead had them
placed in storage, which caused plaintiff to miss a court deadline. On review under 28 U.S.C.
§ 1915A, the Court found that plaintiff stated a claim for denial of access to the courts.
Discussion
Plaintiff’s motion states that “due to conflicting Responses in Defendant Warner’s
Interrogatory responses and Production Requests by Plaintiff, Plaintiff believes a deposition is the

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Plaintiff also asserted other claims against other defendants, but these were dismissed on
review pursuant to 28 U.S.C. § 1915A. See Mem. and Order of Jan. 20, 2016 (Doc. 16).

only way to clear up said conflicts.” Mot. at 1 (Doc. 39). The motion also states that plaintiff
“cannot afford to pay for said deposition.” Id.
Defendant opposes the motion on the basis that plaintiff has not stated sufficient grounds to
support his request, as plaintiff has not demonstrated that written discovery is inadequate for him
to obtain relevant information. Defendant asserts that plaintiff fails to state why a deposition is
necessary other than his vague reference to “conflicting responses” in defendant’s previous
responses to discovery. Defendant states that plaintiff has extensively utilized written discovery in
the case, serving three separate sets of interrogatories, three requests for production of documents,
and ten requests for admission. Defendant notes that this Court has previously stated its preference
for prisoner litigants to utilize written discovery requests, rather than depositions, in obtaining
discovery from other parties, citing Price v. Larkins, 2011 WL 2416383, at *1 (E.D. Mo. June 13,
2011), and Johnson v. Nieman, 2010 WL 1740365, at *2 (E.D. Mo. Apr. 30, 2010).
Defendant also objects that plaintiff has not demonstrated that he can satisfy the requirements
to take a deposition, including retaining a court reporting service and paying fees as expenses, citing
United States Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir. 1984) (en banc)
(indigent litigants must pay witness fees and expenses, even when proceeding in forma pauperis
under 28 U.S.C. § 1915).
Finally, defendant states that the discovery deadline was extended at plaintiff’s request from
August 31, 2016 until December 15, 2016, and plaintiff’s motion for deposition was filed on
November 28, 2016, and if granted, would require the further extension of the discovery deadline.
Plaintiff’s motion states that he cannot afford to pay the costs associated with taking a
deposition. As defendant states, in United States Marshals Service, 741 F.2d at 1056, the Eighth

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Circuit observed that while 28 U.S.C. § 1915 expressly provides for service of process for an
indigent party’s witnesses, it does not mention payment of fees and expenses for such witnesses.
The Eighth Circuit concluded that Section 1915 does not impliedly authorize government payment
of witness fees and expenses for indigent litigants. Id. Thus, plaintiff is required to pay for the costs
of a court reporter or witness fees, even though he is proceeding in forma pauperis. Plaintiff does
not cite, and the Court is not aware of, any basis for the waiver of fees for the costs of discovery.
Because plaintiff has stated he cannot afford the court reporter and witness fees, his motion should
be denied.
In addition, defendant is correct that this Court prefers prisoner plaintiffs to conduct
discovery primarily through written interrogatories, requests for production of documents, and
requests for admission. See Price, 2011 WL 2416383, at *1; Johnson, 2010 WL 1740365, at *2.
Here, where plaintiff merely asserts in a vague and conclusory manner that the significant discovery
he has conducted has resulted in “conflicting responses,” without providing any examples or
explaining how the responses conflict and cannot be reconciled, plaintiff does not establish that a
need for deposition testimony exists.
For these reasons, plaintiff’s motion for deposition will be denied. Accordingly,
IT IS HEREBY ORDERED that plaintiff’s motion for deposition of the defendant is
DENIED. [Doc. 39]

CHARLES A. SHAW
UNITED STATES DISTRICT JUDGE
Dated this 5th day of January, 2017.

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