Zimmermann et al v. Todd et al

Filing 60

DECISION AND ORDER denying 48 Motion to Compel. Signed by Hon. Leslie G. Foschio on 8/9/2017. (SDW) (D&O mailed to pro se Plaintiff at Wende Correctional Facility)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
____________________________________
NICHOLAS ZIMMERMAN,

DECISION
and
ORDER

Plaintiff,
v.
SOCIAL WORKER RICHARD PAUTZ, et al.,

12-CV-763A(F)

Defendants.
_____________________________________
APPEARANCES:

NICHOLAS ZIMMERMAN, Pro Se
02-A-1663
Wende Correctional Facility
P.O. Box 1187
Alden, New York 14004
ERIC T. SCHNEIDERMAN
NEW YORK STATE ATTORNEY GENERAL
Attorney for Defendants
RYAN L. BELKA,
Assistant Attorney General, of Counsel
Main Place Tower, Suite 300A
350 Main Street
Buffalo, New York 14202

In this prisoner civil rights action, Plaintiff alleges violations of Plaintiff’s First
Amendment rights in connection with interference with Plaintiff’s mail and an unlawful
mail watch, Eighth Amendment violations based on alleged excessive force and failure
to protect, and federal Due Process violations arising from disciplinary hearings and a
conspiracy. By papers filed June 21, 2017, Plaintiff moves to compel document
production and for permission to depose Defendants (“Plaintiff’s discovery demands”)
(Dkt. 48 at 2) (“Plaintiff’s motion”). In opposition, Defendants contend Plaintiff has failed
to serve any of Plaintiff’s discovery demands in accordance with Fed.R.Civ.P. 30(a) and
Fed.R.Civ.P 34(a). Dkt. 55 at 2. Defendants further contend Plaintiff has failed to file

Plaintiff’s discovery demands as required by Local R.Civ.P. 5.2(f)(1)(E) (“Rule
5.2(f)(1)(E)”) (requiring all papers including discovery requests in pro se cases be filed).
Defendants also contend Plaintiff’s motion fails to comply with Fed.R.Civ.P. 37(a) (“Rule
37(a)”) (requiring parties engage in good faith effort to resolve discovery disputes as a
precondition to filing motions to compel). Nevertheless, Defendants state Defendants
have recently served responses to Plaintiff’s discovery demands as stated in Plaintiff’s
motion. Dkt. 55 n. 4.

Plaintiff has not responded to Defendants’ opposition.

It is well-settled that a pro se party is required to comply with Rule 5.2(f)(1)(E).
See Hill v. Stewart, 2012 WL 1232091, at *4 (W.D.N.Y. Apr. 12, 2012); Brown v. Lian,
2012 WL 4551474, at *3 (W.D.N.Y. Sept. 29, 2011). The court’s inspection of the
docket establishes Plaintiff has failed to comply with Rule 5.2(f)(1)(E) with respect to
Plaintiff’s discovery demands. Pro se litigants are also required to comply with the good
faith meet and confer requirement of Rule 37(a). See Nowlin v. Lusk, 2014 WL 298155,
at *6 (W.D.N.Y. Jan. 28, 2014) (citing Fox v. Poole, 2007 WL 837117, at *3 (W.D.N.Y.
Mar. 15, 2007)). Additionally, as Plaintiff failed to serve Plaintiff’s discovery demands,
there is no basis upon which to consider a motion to compel pursuant to Rule 37(a).
Under Fed.R.Civ.P. 30(b)(4) (“Rule 30__”), a pro se litigant may designate an
oral deposition be taken by telephonic means provided the requirements of Rule
30(b)(5)(A)-(C) (relating to appointment of officer designated pursuant to Fed.R.Civ.P.
28, conduct of the deposition, and arrangement to secure the recording or transcript)
are satisfied.1 See Gordon v. Parole Officer Semrug, 2016 WL 259579, at *1 (W.D.N.Y.

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Although Plaintiff does not specify the means for the requested depositions given that Plaintiff is
housed at a prison facility other than a facility where Defendants are employed, the court presumes
Plaintiff’s request is for telephonic depositions.
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Jan. 21, 2016). In the case of an incarcerated plaintiff, like Plaintiff, the requirements
are similar, see Nowlin, 2014 WL 298155, at *9, but as a practical matter more difficult
because of the obvious issues of prisoner security and logistical requirements imposed
by the prison. Id. (citing Beckles v. Artuz, 2005 WL 702728, at *2 (S.D.N.Y. Mar. 25,
2005) (noting that pro se prisoner is required to pay all costs associated with telephonic
oral depositions and the court unable to subsidize such costs even if plaintiff is
proceeding in forma pauperis)). Before authorizing oral depositions in a prisoner civil
rights case courts requires that a prisoner is also required to submit a plan to the court
explaining how plaintiff intends to comply with the requirements of Rule 30 and in view
of the practical difficulty in obtaining prison officials’ cooperation, consider proceeding
by deposition upon written questions pursuant to Fed.R.Civ.P. 31 or interrogatories
pursuant to Fed.R.Civ.P. 33 as an alternative. See Nowlin, 2014 WL 298155, at *10
(citing Beckles, 2005 WL 702728, at *1). Plaintiff has demonstrated no effort to comply
with Rule 30(b)(5)(A)-(C) nor explained how Plaintiff expects to meet these
prerequisites for Defendants’ telephonic oral depositions as sought by Plaintiff.

CONCLUSION
Based on the foregoing, Plaintiff’s motion (Dkt.48) is DENIED without prejudice.
SO ORDERED.
/s/ Leslie G. Foschio
________________________________
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: August 9, 2017
Buffalo, New York

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Any appeal of this Decision and Order must be taken by filing written
objection with the Clerk of Court not later than 14 days after service of
this Decision and Order in accordance with Fed.R.Civ.P. 72(a).

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