Nichols v. Clark County Detention Center et al

Filing 33

ORDER that Plaintiffs Motion to Compel 29 is denied. Signed by Magistrate Judge George Foley, Jr on 10/24/11. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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COLBERT NICHOLS,

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Plaintiff,
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vs.
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ROBERT BANNISTER, et al.,
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Defendants.
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__________________________________________)

Case No. 2:09-cv-01698-LDG-GWF
ORDER
Motion to Compel (#29)

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This matter comes before the Court on Plaintiff’s Motion to Compel (#29), filed on September

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22, 2011, and Defendant’s response to Plaintiff’s Motion to Compel (#30), filed on October 10, 2011.

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Plaintiff requests that the Court order Dr. Long, an orthopedic surgeon, be deposed regarding the

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analysis of Plaintiff’s MRI. Plaintiff further requests that all medical records concerning the MRI be

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delivered to the Plaintiff. Defendants oppose Plaintiff’s motion arguing that discovery has not

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commenced, and Plaintiff has failed to demonstrate that Dr. Long’s deposition is warranted under Fed.

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R. Civ. P. 56.

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On October 12, 2011, the Court entered a Scheduling Order setting the discovery deadline as

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January 10, 2012. As this case is now in discovery, Plaintiff may depose “any person, including a party

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without leave of court except as provided in Rule 30(a)(2).” Fed. R. Civ. P. 30(a). Further, Plaintiff

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may serve a request for production of documents on Defendants in an attempt to obtain all his medical

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records concerning his MRI. See Fed. R. Civ. P. 34. At this point however, the Court will not compel

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production of documents or the taking of Dr. Long’s deposition. Plaintiff has failed to demonstrate that

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he has tried to obtain his requested relief through the discovery process, and further failed to

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demonstrate that he has “in good faith conferred or attempted to confer with the person or party failing

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to make disclosure.” Fed. R. Civ. P. 37(a).

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Further, although Plaintiff was granted in forma pauperis status (see #1), Plaintiff’s status as an

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indigent litigant does not entitle him to notice and/or conduct a deposition at the government’s expense.

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“[A]lthough the plain language of section 1915 provides for service of process for an indigent's

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witnesses, it does not waive payment of fees or expenses for those witnesses.” Tedder v. Odel, 890

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F.2d 210, 211 (9th Cir.1989); see also Jackson v. Gonzalez, 339 Fed.Appx. 675, 676 (9th Cir. 2009)

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(holding the district court did not abuse its discretion by denying Plaintiff’s request that the court

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finance his deposition costs). The Court will therefore not look favorably on any future requests to

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compel the deposition of Dr. Long at the government’s expense. Accordingly,

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IT IS HEREBY ORDERED that Plaintiff’s Motion to Compel (#29) is denied.

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DATED this 24th day of October, 2011.

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______________________________________
GEORGE FOLEY, JR.
United States Magistrate Judge

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