Mitchell v. Siersma et al

Filing 34

DECISION & ORDER denying 22 Motion to Compel. Signed by Hon. Marian W. Payson on 1/13/2016. Copy of Decision & Order sent by First Class Mail to plaintiff Patrick Michael Mitchell on 1/13/2016. (KAH)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
_______________________________________
PATRICK MICHAEL MITCHELL,
DECISION & ORDER
Plaintiff,
14-CV-6069G
v.
ROBERT SIERSMA, et al.,
Defendants.
_______________________________________

Plaintiff Patrick Michael Mitchell (“Mitchell”) in the above-captioned matter has
filed a pro se Complaint asserting claims pursuant to 42 U.S.C. § 1983 and various state law
claims arising from his arrest and incarceration. (Docket # 1). Currently before this Court is
Mitchell’s motion for an order compelling defendants to provide him with a stenographer to
transcribe a deposition of defendant Siersma that Mitchell wishes to take and with a transcript of
the deposition. (Docket # 22). Defendants oppose the motion. (Docket # 26). For the following
reasons, Mitchell’s motion is denied.
Rule 30(b) of the Federal Rules of Civil Procedure provides:
Unless the court orders otherwise, testimony may be recorded by
audio, audiovisual, or stenographic means. The noticing party
bears the recording costs. Any party may arrange to transcribe a
deposition.
Fed. R. Civ. P. 30(b)(3)(A). The rule further requires that unless otherwise agreed by the parties,
a deposition must also be conducted before an officer who, among other things, administers the
oath to the deponent. Fed. R. Civ. P. 30(b)(5).

Mitchell requests that the defendants provide him with a stenographer and a
transcript without cost to him because he is indigent and proceeding in this matter pro se. A
litigant proceeding in forma pauperis does not have a right to a waiver of the cost of a deposition
stenographer. Breedlove v. Mandell, 2009 WL 500865, *1 (W.D.N.Y. 2009); Koehl v. Greene,
2007 WL 4299992, *3 (N.D.N.Y. 2007) (collecting cases); see Smith v. Buffalo Bd. of Educ.,
1997 WL 613255, *2 (W.D.N.Y. 1997) (denying in forma pauperis plaintiff’s request that the
court bear the cost of deposition transcripts). Mitchell has failed to demonstrate an inability to
obtain the desired information through alternative methods of discovery available to him, such as
depositions upon written questions under Fed. R. Civ. P. 31 or interrogatories under Fed. R. Civ.
P. 33. That he would prefer to obtain the desired discovery through an oral deposition rather
than through alternative means is not sufficient justification to grant his motion.
For the foregoing reasons, Mitchell’s motion (Docket # 22) is DENIED.
IT IS SO ORDERED.

s/Marian W. Payson
MARIAN W. PAYSON
United States Magistrate Judge
Dated: Rochester, New York
January 13, 2016

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