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)

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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. ยง 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

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