Picozzi v. Clark County Detention Center et al

Filing 96

ORDER that 68 Motion to Compel Visit Logs/Video; 69 Motion for Copy of Deposition; 90 Motion to Order Discovery; and 93 Motion for Deposition Upon Written Questions are DENIED. Signed by Magistrate Judge Peggy A. Leen on 10/16/17. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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MARK PICOZZI,

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Case No. 2:15-cv-00816-JCM-PAL
Plaintiff,

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ORDER

v.

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CLARK COUNTY DETENTION CENTER,
et al.,

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(Motions – ECF Nos. 68, 69, 90, 93)

Defendants.

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This matter is before the court on Plaintiff Mark Picozzi’s Motion to Compel Visit Logs /

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Video (ECF No. 68), Motion for Copy of Deposition (ECF No. 69), Motion to Order Discovery

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(ECF No. 90), and Motion for Deposition Upon Written Questions (ECF No. 93). These Motions

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are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local

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Rules of Practice.

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Mr. Picozzi is a pro se prisoner in the custody of the Nevada Department of Corrections

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who is proceeding in forma pauperis (“IFP”). See IFP Application (ECF No. 3); Screening Order

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(ECF No. 15). This case arises from Picozzi’s allegations, pursuant to 28 U.S.C. § 1983, regarding

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his treatment while he was incarcerated at the Clark County Detention Center (“CCDC”). Upon

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review of the Amended Complaint (ECF No. 14), the court found that Picozzi stated plausible

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claims against 13 defendants: Sergeant Judd, Officers Hightower, Daos, Goins, Hans, Brooks,

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Phillips, Carr, Razzo, Jolley, Coker, Garcia, and Nurse Amanda Vertner.1 See Screening Order

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(ECF No. 15).

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On June 1, 2016, the court entered a Scheduling Order (ECF No. 28) as to defendants
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Picozzi substituted Nurse Amanda Vertner in place of Jane Doe #1. See Order (ECF No. 66). In a
separate order and report of findings and recommendation entered today, the court recommended that
defendant Carr be dismissed from this action based on Picozzi’s failure to complete service.

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Coker, Daos, Goins, Hightower, Judd, and Phillips (the “CCDC defendants”) setting various

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discovery and motion deadlines. The parties later requested an extension of the discovery

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deadlines. The court found good cause to extend the deadlines stated in the Scheduling Order by

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90 days: “(1) discovery in this action shall be completed on January 30, 2017; (2) discovery

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motions shall be filed and served no later than February 13, 2017….” Oct. 31, 2016 Order (ECF

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No. 52).2

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I.

MOTION TO COMPEL VISIT LOGS / VIDEO (ECF NO. 68)

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This motion, filed March 27, 2017, asks the court to compel CCDC to provide the sign-in

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sheets, log books, visit logs, and video of a visit CCDC said he received on April 29, 2014. The

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Response (ECF No. 75) argues that Picozzi’s motion fails to include a certification that he has

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conferred or attempted to confer in good faith with other affected parties in an effort to resolve the

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dispute without court action. In his Reply (ECF No. 79), Picozzi asserts that he has repeatedly

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asked for the video to be saved in discovery requests and grievances.

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Picozzi’s motion is denied for multiple reasons. First, the motion is untimely. The

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Scheduling Order required that the parties file any discovery motions no later than February 13,

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2017. The motion was filed on March 27, 2017, and provides no explanation for why it was not

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filed on time. Second, the motion does not provide a copy of his requests for production or the

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CCDC defendants response to his requests as required by Local Rule 26-7(b) (“All motions to

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compel discovery or for a protective order must set forth in full the text of the discovery originally

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sought and any response to it.”). The purpose of that rule is to enable the court to determine

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whether the discovery requests and/or the responses are appropriate and comply with the discovery

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rules. The court cannot make this determination without seeing the original requests and the

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responses.

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Finally, as the Response points out, the motion does not show that Picozzi met and

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conferred in good faith with the CCDC defendants or attempted to do so as required by LR 26–

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In a separate scheduling order entered today, the court set an additional 90 days of discovery for new
defendants Brooks, Hans, Garcia, Razo, Jolly, and Vertner. Discovery is not re-opened for the existing
defendants Coker, Daos, Goins, Hightower, Judd, and Phillips.

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7(c) and Rule 37(a)(2)(B) of the Federal Rules of Civil Procedure.3 Where one of the parties is a

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prisoner, the court does not require in-person meetings and allows the parties to meet and confer

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by telephone or by exchanging letters, which a party may then attach to his motion. Although the

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format of the meet-and-confer process changes, the substantive requirement remains the same—

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namely, the parties must engage in a good faith effort to meet and confer to resolve discovery

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disputes before seeking court intervention. For these reasons, the motion is denied.

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II.

MOTION FOR COPY OF DEPOSITION

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In this motion, Picozzi asks the court to reconsider its Order (ECF No. 66) denying his first

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motion (ECF No. 56) requesting a copy of his deposition transcript. The court has considered the

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CCDC defendants’ Response (ECF No. 76) and Picozzi’s Reply (ECF No. 80). For the reasons

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stated in the court’s original order, the request for reconsideration is denied.

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III.

MOTION TO ORDER DISCOVERY (ECF NO. 90)

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Picozzi’s motion, filed July 19, 2017, argues that counsel for the CCDC defendants is

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refusing to turn over discovery or respond to depositions he submitted to the new defendants who

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were recently served. Attached to his motion are letters addressed to counsel for the CCDC

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defendants, dated May 31, 2016, and the Las Vegas Metropolitan Police Department Risk

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Management Division, dated May 1, 2014, and March 3, 2015.

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preservation of video of the alleged incident that is the subject of this lawsuit. The letter to counsel

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also contains other discovery requests. In their Response (ECF No. 91), the CCDC defendants

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note that Picozzi is moving in part for the same relief he requested in the previous motion to compel

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(ECF No. 68), to which they already responded. See ECF No. 75. Additionally, the CCDC

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defendants claim that the letters are not genuine and he produced them “now, ostensibly, to support

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a claim that Defendants intentionally destroyed video evidence that Picozzi will likely claim would

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have been helpful to his case.” Response (ECF No. 91) at 2. The CCDC defendants also refer to

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their recent Notice (ECF No. 88) in which they describe how Mr. Picozzi ignored the court’s Order

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(ECF No. 72) to meet and confer regarding the remaining discovery for the new defendants. In

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his Reply (ECF No. 92), Picozzi denies fabricating the letters and argues that his legal mail was

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The letters each request

Any reference to a “Rule” or the “Rules” in this order refer to the Federal Rules of Civil Procedure.

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repeatedly tampered with while he was incarcerated at CCDC.

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This motion is also untimely as it was filed almost four months after the deadline for

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discovery motions. Picozzi asks the court to please look at all the exhibits submitted. The court

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has done so. His letter requests are not requests for production of documents or tangible things.

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Such requests are made and served pursuant to Rule 34 of the Federal Rules of Civil Procedure.

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A motion to compel may be filed only when a request has been made, the opposing party or parties

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have failed to respond or responded in a manner the requesting party finds insufficient and the

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requesting party engages in a good faith effort to resolve the matter with the other side without

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court intervention. Mr. Picozzi does not attempt to explain why he has not complied with the

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scheduling order. Assuming that the letters were sent to opposing counsel in 2014, 2015, and 2016

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as Picozzi claims, that still does not explain why he failed to timely file his motion by the February

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2017 deadline, especially since he has filed many other motions.4

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With regard to Mr. Picozzi’s deposition requests for the new defendants, the motion is

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premature. Discovery with the newly served defendants does not begin until the defendants have

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appeared by filing an answer or other responsive pleading, and the parties have met and conferred

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and submitted a proposed discovery plan and scheduling order which the court approves. See Fed.

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R. Civ. P. 26. It is for this precise reason that the court ordered the parties to meet and confer

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regarding whether Mr. Picozzi and/or the new defendants will require discovery once the new

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defendants answered or otherwise appeared. See Apr. 6, 2017 Order (ECF No. 72). The CCDC

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defendants informed the court that Picozzi refused to do so until his existing discovery motions

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were resolved. See Notice (ECF No. 88). In a separate order entered today, the court admonished

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Picozzi for failing to meet and confer and entered a new Discovery Plan and Scheduling Order as

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to defendants Brooks, Hans, Garcia, Razo, Jolly, and Vertner. This motion is denied.

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IV.

MOTION FOR DEPOSITION UPON WRITTEN QUESTIONS (ECF NO. 93)

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In this motion, filed August 8, 2017, Picozzi asks the court for permission to take three

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depositions by written questions. He argues that the depositions of defendant Judd, Sgt. Graham,

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Additionally, the court notes that the Las Vegas Metropolitan Police Department is not a party to this
case. Pursuant to Rule 34 of the Federal Rules of Civil Procedure, requests for production must be
addressed to a party.

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and Officer Batu, two non-party witnesses, are necessary to his case. He plans to submit the

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deposition questions to the court. He sent affidavits to CCDC for Sgt. Graham and Officer Batu,

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but he received no response. CCDC has refused to respond to any requests Picozzi has sent there.

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Defendant Judd responded to interrogatories and requests for production in September 2016, but

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the responses were incomplete. Thus, he asks the court to order the deposition. In their Response

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(ECF No. 94), the CCDC defendants argue that this motion is duplicative of past requests and fails

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to follow the rules of civil procedure or the orders of the court. Picozzi did not file a reply brief.

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The deposition request for defendant Judd is many months late. Discovery as to Judd

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closed in January 2017. Discovery motions as to Judd were due in February 2017. The motion is

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denied as untimely regarding defendant Judd.

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With regard to Sgt. Graham and Officer Batu, Mr. Picozzi faces the same financial problem

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he did with traditional depositions. See Oct. 31, 2016 Order (ECF No. 53). At first glance, a

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deposition upon written questions may look like an inexpensive way for a prisoner to do discovery

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compared with a traditional deposition but it usually is not. A deposition upon written questions

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is governed by Rule 31 and the procedure would basically work as follows. The prisoner would

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mail a notice of deposition that identifies: (1) the deponent (i.e., the witness), (2) the officer taking

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the deposition, (3) a list of the exact questions to be asked of the witness, and (3) the date and time

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for the deposition to occur. The deposition officer can be any person authorized by law to

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administer oaths such as a notary public or a court reporter.5 See Fed. R. Civ. P. 28(a). Defense

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counsel would have time to send to the prisoner written cross-examination questions for the

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witness, the prisoner would then have time to send to defense counsel written re-direct questions

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for the witness, and defense counsel would have time to send to the prisoner written re-cross-

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examination questions for the witness. The deposition should be scheduled with enough time in

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advance to allow for mailings. To depose a non-party on written questions, that witness must be

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subpoenaed. See Fed. R. Civ. P. 45.

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When all the questions are ready, the prisoner would send them to the deposition officer

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and the officer would take the deposition of the witness on scheduled date and time. The deposition

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Court employees do not provide this service.

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officer reads the questions to the witness. The deposition officer may not stray from the written

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script of questions and asks only those questions that are on the list from the prisoner and

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defendant. The witness answers the questions orally, a court reporter records the witnesses’

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responses and prepares a transcript just as it would be for an oral deposition governed by Rule 30.

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To obtain a deposition upon written questions, the prisoner is responsible to pay the witness

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fee, deposition officer fee, court reporter fee, and the cost of the deposition transcript. The

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procedure is not much cheaper than an oral deposition unless there are substantial travel expenses

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that would be incurred to bring the witness to the prisoner or the prisoner to the witness. In addition

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to the cost, the ability to gather evidence in such a deposition is quite limited. Because all the

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questions are written and shared in advance with opposing counsel, there is no opportunity for

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follow-up questions when a witness makes a statement that is unexpected, or the answer is not

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understood. Poorly worded questions will often result in useless answers, which makes this

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procedure particularly problematic for unrepresented litigants.

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Here, Mr. Picozzi has not designated a deposition officer or notified the deponents of the

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time, place, and manner of deposition. He also has not shown he can pay any of the costs

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associated with written depositions, including fees for a deposition officer and court reporter, the

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cost of transcribing the deposition, and witness fees and mileage under Rule 45(b)(1). Because

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Picozzi’s indigent status does not entitle him to a waiver of fees and he has not met the Rule 31

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requirements, the court will deny this motion.

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Accordingly,

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IT IS ORDERED: Plaintiff Mark Picozzi’s Motion to Compel Visit Logs / Video (ECF

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No. 68), Motion for Copy of Deposition (ECF No. 69), Motion to Order Discovery (ECF No. 90),

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and Motion for Deposition Upon Written Questions (ECF No. 93) are DENIED.

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Dated this 16th day of October, 2017.

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PEGGY A. LEEN
UNITED STATES MAGISTRATE JUDGE

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