Read v. Kwiatkowski

Filing 43

ORDER finding as moot 30 Motion to Compel; denying 21 Motion to Take Deposition of P. Kwiatkowski. Signed by Hon. Jonathan W. Feldman on 03/29/2017. A copy of this Decision and Order has been sent to pro se plaintiff at Fishkill Correctional Facility. (JKT)

MAR 2 !J 2017

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DAVID PAUL READ,
Plaintiff,
v.

DECISION & ORDER

15-CV-6475

P. KWIATKOWSKI,
Defendant.
Preliminary Statement

Pro se plaintiff David Paul Read ("plaintiff")
instant action under 42 U.S.C.

§

Corrections Officer

Kwiatkowski,

(C.O.)

P.

brings the

1983, alleging that defendant,
violated his civil

rights on July 6, 2015 by forcing plaintiff to work beyond his
physical

capacity

in

spite

of

plaintiff's

known

medical

limitations, and by retaliating against plaintiff when he later
complained.

See Complaint

Pending before the

(Docket # 1) .

Court are plaintiff's motions

to

(1)

deposition, and (2) compel discovery.

take

C.O.

Kwiatkowski's

See Docket ## 21, 30.

Discussion

Motion

to

Depose Defendant

(Docket

#

21) :

Plaintiff

is

currently incarcerated at Fishkill Correctional Facility in New
York.
depose

In his pro se motion, plaintiff states that he needs to
defendant,

and

requests

that

the

Court

officer to administer oaths and take testimony.
offered to contribute $500. 00

appoint

an

Plaintiff has

to the cost of the deposition,

which he argues is necessary to allow him to obtain evidence to
use to impeach the defendant.
Plaintiff

argues

prisoners

[sic]

remedies

that

that

"it

is

plaintiff
the

See Reply

to

(Docket # 26)

fundamentally
utilize

law allows."

For

fair

to

allow

method

every

Id.

at 1.

of

legal

the

reasons

that

follow, plaintiff's motion is denied.
The Federal Rules of Civil Procedure do not prohibit or
limit a plaintiff's ability to depose parties based on status
See Fed. R. Civ. P.

either as a prisoner or a pro se litigant.
30.

So long as plaintiff provides proper notice to defendant

and bears all costs related to the taking of a deposition,
need not seek leave of the Court to proceed.
"the

deposition

by

inmate

litigants

pose

See id.

he

However,

logistical

issues,

especially if these litigants are proceeding as poor persons."
Nowlin v.

Lusk,

Jan.

2014).

28,

raised

by

No.

llCV712S,

First,

defendants

Second,

2015

WL

weigh

2376001,

(W.D.N.Y.

against

plaintiff's

Whiteside v.
at

*2

(S.D.

request

Thalheimer,
Ohio

May

No.
18,

to

1:132015).

"[t]he costs of a deposition (the fees for swearing the

oaths for testimony,
by

at *9

"prison order and security concerns

conduct oral depositions."
cv-408,

2014 WL 298155,

remote

means,

usually borne by

the

the costs of recording testimony,
costs

the party

of

setting up

taking

the

the

and,

if

recording)

is

deposition,

even when

that party is proceeding pro se and granted in forrna pauperis
2

status.

994

Nowlin,

11

F.2d

90,

authorized

2014 WL 298155 at *9; see Malik v. Lavalley,

90

(2d

to waive

Cir.

1993)

or pay witness

("federal
fees

courts

on behalf

are
of

not

an

forma pauper is litigant") ; see also Murray v.

Palmer, No.

CV-1010,

29,

2006

WL

2516485,

*4

(N. D .N. Y.

Aug.

2006)

in

903 ("[A]

litigant proceeding in forma pauperis does not have a right to
a waiver of
daily

(1)

the cost of a deposition stenographer,

attendance

fee

and

mileage

allowance

the

must

that

(2)

be

presented to an opposing witness under Rule 45 of the Federal
Rules

of

Civil

Procedure,

or

(3)

the

copying

cost

of

any

deposition transcripts.").
Given

these

logistical

and

financial

realities,

incarcerated pro se plaintiffs utilize other devices
interrogatories,

deposition by written questions,

for admissions to obtain needed discovery.
of New Kensington, No. 13-606,
Feb. 3, 2016)

many

such as

or requests

See Kramer v.

2016 WL 406284, at *2

City

(W.D. Pa.

("In light of the expense of oral depositions and

logistical difficulties presented to an inmate proceeding pro
se, it is often preferable for pro se inmates to seek discovery
through depositions by written questions pursuant to Rule 31 of
the Federal Rules of
Mullah, No.

Civil Procedure.");

08-CV-00463,

see also Woodward v.

2010 WL 1848495, at *9 (W.D.N.Y. 2010)

(despite financial limitations, plaintiff "is not without means
to

investigate

his

case

by

11

3

using

document

demands,

interrogatories
McConnell

v.

(S.D.N.Y.

and

Pepp,

April

No.

3,

upon

deposition
89

Civ.

1991)

2604,

written
1991

("Considering

WL

questions);
at

*1

plaintiff

that

50965,

is

an

incarcerated prisoner proceeding in forma pauperis,

we believe

that

is

the

service

of

interrogatories

by plaintiff

a

more

practical means of discovery.").
plaintiff

Here,

contends

that

"deposition

by

written

questions would be useless in this case" but does not explain
why.

See Docket # 21 .

the

ability

to

In any event,

subsidize

discovery vehicle,

the

the Court does not have

costs

associated

with

any

For these reasons,

including depositions.

plaintiff's motion to take depositions and subsidize the costs
of those depositions (Docket # 21) is denied.
Motion
motion,
turn

to

Compel

Discovery

(Docket

#

With

30):

this

plaintiff requests that the Court compel defendant to

over

hallway."

"photocopies
Docket

#

3 O.

of

the

C-1/Rec

Defendant

Room

responded

door,
to

and

the

also

instant

motion attaching the requested photos "of the Cl TV Room Door,
Door Closure and hallway angles."

Docket # 33.

Defendant has

satisfied plaintiff's request, and this motion is now moot.
SO ORDERED.

JONATHAN W. FELDMAN
Magistrate Judge
Dated:

March 29, 2017
Rochester, New York
4