Eggleston v. Bickell et al

Filing 64

OMNIBUS MEMORANDUM ORDER - IT IS ORDERED that the plaintiffs motion to depose witnesses upon written deposition questions (Doc. 61) is DENIED without prejudice to the filing of interrogatories within the discovery deadlines set by this Court; the pla intiffs motion to amend his complaint (Doc. 54) is GRANTED in order to reflect in paragraphs 2 through 6 that the officer who interviewed the plaintiff was Lieutenant Johnson and not Captain Harris; the plaintiffs motion to compel further responses t o four discovery requests (Doc. 53) is DENIED; and the defendants motion (Doc. 62) is GRANTED. The discovery period in this action is enlarged until November 1, 2013. The parties shall file dispositive motions and responsive briefs on or before December 2, 2013. Signed by Magistrate Judge Martin C. Carlson on September 23, 2013. (kjn)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
PRINCE EGGLESTON,
Plaintiff
v.
CHARLES MITCHELL, et al.,
Defendants

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Civil No. 1:12-CV-1220
(Chief Judge Conner)
(Magistrate Judge Carlson)

OMNIBUS MEMORANDUM ORDER
This order addresses a number of pre-trial motions that the parties have filed
regarding pleading and discovery matters. Despite the parties’ purported disputes
over the certain of the relief sought, the motions are straightforward and in our view
admit of prompt resolution. We address each seriatim below.
1.

Defendants’ Motion for Enlargement of Discovery Deadline.

The defendants have moved to enlarge the discover deadline until November
1, 2013, in order to afford them time to locate a third-party witness, depose him, and
complete necessary discovery. (Doc. 62) The defendants also request that the Court
set December 2, 2013, as the deadline for the parties to file dispositive motions and
supporting briefs. The defendants represent that this extension of the discovery
period and dispositive motions deadline will not unreasonably delay resolution of the

action, and will not prejudice the plaintiff. We agree, and find that good cause has
been shown to grant the requested relief. Accordingly, IT IS HEREBY ORDERED
THAT the defendants’ motion (Doc. 62) is GRANTED. The discovery period in this
action is enlarged until November 1, 2013.1 The parties shall file dispositive motions
and responsive briefs on or before December 2, 2013.
2.

Plaintiff’s Motion to Compel Discovery.

The plaintiff has moved to compel the defendants to produce additional
documents in response to certain discovery requests he propounded. (Doc. 53) Upon
consideration, and as discussed further below, we do not find any basis to grant the
motion, as we find either that the defendants provided the plaintiff with the
information he requested, or otherwise that the information is not properly
discoverable in this case.
The defendants have previously objected to the plaintiff’s efforts to obtain
discovery upon written depositions by arguing that he filed his discovery requests
too close the discovery cutoff, and, therefore, that they were under no obligation to
answer the discovery he attempted to propound. (Doc. 58) We nevertheless
granted the plaintiff’s request to use this discovery tool to depose witnesses by
written deposition pursuant to Rule 31 of the Federal Rules of Civil Procedure,
provided the plaintiff complied with the procedural requirements necessary to take
discovery in this manner. (Doc. 59) Because we are enlarging the discovery
period generally, it shall be enlarged for all parties to take additional discovery.
To the extent that the parties comply with other obligations that the Federal Rules
of Civil Procedure impose on serving discovery requests, the parties shall be
required to respond to such requests in an appropriate manner through November
1, 2013.
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Request for Production No. 1. In this request, the plaintiff asked
the defendants to produce “The complete prison records of all
Plaintiff [sic] cell searches (DC-704 cell searches form [sic] /only
in SCI-Huntingdon.” (Doc. 56, Ex. A.) The defendants note that
the plaintiff has sought only documentation relating to cell
searches that were related to his disciplinary custody, and these
records have been provided to plaintiff. The plaintiff has not
disputed the defendants’ contention in this regard, and we find no
basis to compel further production in response to this request.

•

Request for Production No. 2. In this request, the plaintiff
requested that the defendants provide him with copies of
Department of Corrections Policies 6.3.1 and 6.5.1. The
defendants objected to this request on the grounds that the
information sought is sensitive and should be protected from
disclosure on the grounds that it relates to the security of DOC
facilities, and procedures governing the searching for and
handling of contraband within those facilities.
Upon
consideration, we do not find that the plaintiff has offered a
sufficient justification for compelling the production of this
information, which we agree is sensitive, and which the
Department of Corrections has a legitimate interest in keeping
from dissemination to inmate-litigants like the plaintiff.2

•

Request for Production No. 4. In this request, the plaintiff has
sought production of the complete shift roster for the date of the
complained-of incident, and the shift during which the incident

As the defendants note, in an unrelated civil action we previously found
that compelling the disclosure of DOC Policies 6.3.1 and 6.5.1 could compromise
institutional safety and security, and we therefore denied the inmate-plaintiff’s
request to review such material. See Victor v. Lawler, Civ. A. No. 3:08-CV-1374,
2011 WL 1884616 (M.D. Pa. May 18, 2011) (“Having conducted [an] in camera
review, we find that release of policy manuals [6.3.1 and 6.5.1] themselves would
undermine institutional security.”). We find no basis to reach a different result in
this case.
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occurred. Specifically, the plaintiff requested that the defendants
“Identify and attach a copy of any and all documents showing
who was on duty and relating to the incident that was reported on
Feb. 2, 2012.” (Doc. 56, Ex. A.) The defendants have
represented that they provided the plaintiff with this very
information. To the extent the plaintiff is seeking information
about which staff may have been involved with the incident at
issue in this case, the defendants note that such information is
included in the paperwork that was related to the misconducts the
plaintiff received as a result. The plaintiff has been provided with
copies of this paperwork as part of discovery, and thus there is no
basis to compel the defendants to produce anything further.
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Request for Production No. 7. In this request, the plaintiff seeks
to discover information regarding select portions of Security
Lieutenant Johnson’s security report relating to his interview with
the plaintiff regarding the plaintiff’s possession of contraband.
To the extent that the plaintiff is seeking Lieutenant Johnson’s
notes, mental impressions, and analysis of the plaintiff’s
construction of contraband, and his effort to conceal it, the
request is without merit. These mental impressions and analyses
are not factual matters properly subject to discovery, but instead
relate to Lieutenant Johnson’s subjective impressions, opinions,
and analysis. Moreover, these portions of the report relate
directly to institutional security. The plaintiff has not offered a
compelling basis to require the disclosure of this subjective
material, and the defendant has persuasively argued that the
disclosure of this information would undermine the safety and
security of DOC facilities.

Accordingly, the plaintiff’s motion to compel further responses to these four
discovery requests (Doc. 53) is DENIED.

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3.

Plaintiff’s Motion to Amend or Correct the Complaint.

The plaintiff has moved for leave to amend the complaint in order to correct
the misidentification of an individual – but, notably, not a defendant – identified in
the amended complaint. (Doc. 54) Specifically, the plaintiff seeks to amend the
complaint pursuant to Rule 15 of the Federal Rules of Civil Procedure in order to
correctly identify Lieutenant Johnson as the officer who interviewed the plaintiff on
or about January 31, 2012, in place of Captain Harris, whom the plaintiff initially
misidentified as the officer who interviewed him. The plaintiff has apparently
discovered his mistake about this individual’s identity during the course of discovery,
and seeks to amend his pleading simply to reflect the correct information.
The defendants have objected to the motion, but have done so by arguing that
the plaintiff is improperly seeking to substitute parties pursuant to Rule 25 of the
Federal Rules of Civil Procedure, but without following any of the requirements of
that rule. (Doc. 57) Upon review of the motion, it is clear that the plaintiff is not
seeking substitution of parties; indeed, the proposed amendment has nothing to do
with any of the defendants named in this case, but concerns only allegations involving
a corrections officer who has not been named as a defendant. In this regard, the
plaintiff is merely seeking to correct a factual detail contained in paragraphs 2
through 6 of the amended complaint (Doc. 11), but otherwise the plaintiff “would like
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to keep everything else the same . . . .” (Doc. 54) The defendants’ objection to the
plaintiff’s motion to amend on the grounds that the plaintiff is improperly seeking to
substitute parties is incorrect and provides no basis to deny the requested relief.
If a party has previously amended its complaint as a matter of right pursuant
to Rule 15(a)(1), or where amendment as a matter of right is no longer available, Rule
15(a)(2) requires that a party must obtain the consent of an opposing party or leave
of court in order to amend a pleading. That rule provides that a “court should freely
give leave when justice so requires.” Fed. R. Civ. P. 15(a)(2). The Third Circuit has
amplified the permissive nature of this rule, holding that “motions to amend pleadings
should be liberally granted.” Long v. Wilson, 393 F.3d 390, 400 (3d Cir. 2004); see
also Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1196 (3d Cir. 1994)
([U]nder the liberal pleading philosophy of the federal rules as incorporated in Rule
15(a), an amendment should be allowed whenever there has not been undue delay,
bad faith on the part of the [movant], or prejudice to the [nonmovant] as a result of
the delay.”).
In this case, nothing indicates that the plaintiff was dilatory or negligent in
seeking to correct a mere factual error contained in his original amended complaint;
to the contrary, by seeking to amend the complaint in order to correct this factual
detail, the plaintiff has exhibited care and diligence. The defendants do not argue that
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they have been prejudiced, and we can perceive no prejudice to either party in the
modest correction that the plaintiff seeks through his motion. Accordingly, the
plaintiff’s motion to amend his complaint (Doc. 54) is GRANTED in order to reflect
in paragraphs 2 through 6 that the officer who interviewed the plaintiff was
Lieutenant Johnson and not Captain Harris.
4.

Plaintiff’s Motion to Depose Witnesses.

Finally, the plaintiff has moved to depose a number of Department of
Corrections employees upon written deposition questions, pursuant to Rule 31 of the
Federal Rules of Civil Procedure. (Doc. 61) We previously granted the plaintiff’s
request to use this particular discovery tool, and directed that by September 13, 2013,
the plaintiff (a) identify the witnesses to be deposed, (b) identify the officer who
would conduct the depositions, and (c) propound his list of written deposition
questions for the witnesses he sought to depose. (Doc. 59) The plaintiff has filed his
current motion in response to this order, and has identified the witnesses to be
deposed and has set forth the questions for each witness.
However, although the plaintiff has purported to identify the officer he wishes
to conduct and certify each of the depositions pursuant to Rule 31(b) of the Federal
Rules of Civil Procedure, it is apparent from the plaintiff’s motion that he has not
actually taken the steps necessary to retain a suitable officer, he has not informed the
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Court or the defendants how he intends to pay the cost of these depositions, and he
has not served subpoenas on or tendered witness fees to the non-party witnesses he
intends to depose. These shortcomings in the plaintiff’s proposed discovery have
inspired the defendants to object to the plaintiff’s motion, and to the proposed
depositions, until such time as the plaintiff retains an appropriate officer to administer
the written deposition questions, serves the subpoenas on the deponents, and pays the
deponents’ witness fees. (Doc. 63)
Upon consideration, we agree with the defendants that the plaintiff has not yet
satisfied the requirements imposed by Rule 31 of the Federal Rules of Civil Procedure
for taking depositions by written questions. To the extent the plaintiff believes that
he may be relieved of the expenses and burdens associated with discovery practice
because he is proceeding in this action as an in forma pauperis litigant, he is
mistaken. In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the Third Circuit Court of
Appeals explained:
The in forma pauperis statute, 28 U.S.C. § 1915, permits
the waiver of prepayment of fees and costs for in forma
pauperis litigants, see 28 U.S.C. § 1915(a), and allows for
payment by the United States of the expenses of “printing
the record on appeal in any civil or criminal case, if such
printing is required by the appellate court,” and of
“preparing a transcript of proceedings before a United
States magistrate in any civil or criminal case, if such a
transcript is required by the district court,” 28 U.S.C. §
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1915(b). There is no provision in the statute for the
payment by the government of the costs of deposition
transcripts, or any other litigation expenses, and no other
statute authorizes courts to commit federal monies for
payment of the necessary expenses in a civil suit brought
by an indigent litigant. See Moss v. ITT Continental Baking
Co., 83 F.R.D. 624, 625 (E.D.Va.1979) (quoting Haymes
v. Smith, 73 F.R.D. 572, 574 (W.D.N.Y.1976)).

Tabron v. Grace, 6 F.3d 147, 158-59 (3d Cir. 1993); see also Badman v. Stark, 139
F.R.D. 601, 605 (M.D. Pa. 1991) (28 U.S.C. § 1915 does not require the government
to advance funds for deposition expenses).
Moreover, in this case the plaintiff seeks to take the depositions of nondefendants, but in order to do so he still must issue subpoenas in accordance with
Rule 45 of the Federal Rules of Civil Procedure, which also requires that if the
deponent must travel to attend the deposition proceeding, the witness is entitled to the
fees for one day’s attendance and any mileage allowed by law. See Fed. R. Civ. P.
45(b)(1). The plaintiff appears to have taken no steps to secure subpoenas in this
case, and has not indicated that he is prepared – or able – to pay the witness fees
required in this case.
Additionally, although the plaintiff suggests that he would like to have
Superintendent Assistant Connie Green appointed to serve as an officer to administer
oaths and transcribe the deposition proceedings, it appears that Ms. Green is neither
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qualified to administer oaths nor to transcribe depositions. Moreover, the plaintiff
has not taken any steps to retain another qualified officer who can fulfill this crucial
function, which is mandated by Rule 31(b). In short, the plaintiff has not complied
with this aspect of Rule 31, and we are, therefore, unable to grant the plaintiff’s
request for entry of an order compelling the non-party witnesses to submit to
depositions that have not been properly noticed or subpoenaed, where no officer has
been retained to take and certify the depositions, and where the plaintiff appears to
be without the resources to finance this discovery.
Although depositions upon written questions may at first seem like a low-cost
method of securing deposition testimony, in reality it is not, and frequently involves
burdens that indigent litigants do not fully realize or appreciate. Judge Susan Illston
of the United States District Court for the Northern District of California has
explained both the process by which depositions may be taken upon written
questions, and also why this discovery practice may often be unavailable to indigent
inmate-litigants like the plaintiff who lack the resources to comply with the various
requirements that must be met before such discovery can be taken:
The deposition upon written questions procedure may
sound like an inexpensive way for a prisoner to do
discovery but usually is not. A deposition upon written
questions is covered by Rule 31 of the Federal Rules of
Civil Procedure. The deposition upon written questions
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basically would work as follows. The prisoner would send
out a notice of deposition that identifies (a) the deponent
(i.e., the witness), (b) the officer taking the deposition, (c)
a list of the exact questions to be asked of the witness, and
(d) the date and time for the deposition to occur. The
defendant would have time to send to the prisoner written
cross-examination questions for the witness, the prisoner
would then have time to send to defendant written re-direct
questions for the witness, and the defendant would have
time to send to the prisoner written re-cross-examination
questions for the witness. When all the questions-without
any answers-are ready, the prisoner would send them to the
deposition officer and the officer would take the deposition
of the witness. (The deposition officer can be any person
authorized by law to administer oaths, see Fed.R.Civ.P.
28(a), such as a notary public and need not be a court
employee.) The questions are read by the deposition
officer, the responses are reported by a court reporter and
the transcript is prepared as it would be for an oral
deposition. The deposition officer does not stray from the
written script of questions and asks only those questions
that are on the list from the prisoner and defendant. To
depose a non-party on written questions, that witness must
be subpoenaed. To obtain a deposition upon written
questions, the prisoner thus has to pay the witness fee,
deposition officer fee, court reporter fee, and the cost of a
transcript of the proceedings. The procedure is not much
cheaper than an oral deposition unless there are substantial
travel expenses that would be incurred to bring the witness
to the prisoner or the prisoner to the witness. In addition
to the cost, the evidence-gathering ability in such a
deposition is quite limited. The requirement that the
questions all be written and shared in advance means that
there is no opportunity for follow-up questions when a
witness makes a statement that is unexpected. Poorly

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worded questions will often result in useless answers-a
problem that makes procedure particularly difficult for an
unrepresented litigant.
Lopez v. Horel, C 06-4772 SI PR, 2007 WL 2177460 (N.D. Cal. July 27, 2007)
aff'd, 367 F. App'x 810 (9th Cir. 2010).
Thus, although we authorized the plaintiff to take depositions of non-party
witnesses upon written questions, the plaintiff nevertheless bears the burden of
complying with the procedural and financial requirements that such discovery
commands. At this point, the plaintiff has not demonstrated that he has fulfilled the
requirements imposed by Rules 31 and 45 of the Federal Rules of Civil Procedure,
and he must do so before he will be able to avail himself of this discovery. To the
extent the plaintiff has the ability to finance these written depositions, and to comply
with the other procedural requirements imposed by Rule 31 and 45, he may seek to
do so before the expiration of the discovery period, which has now been enlarged
until November 1, 2013. However, the Court has no authority to finance the
plaintiff’s discovery, or otherwise to entirely set aside the procedural requirements
that must be satisfied before such discovery can be taken.
Accordingly, unless and until the plaintiff can demonstrate that he can meet the
requirements for taking depositions on written discovery, including to retain an
appropriate officer capable of administering an oath and the written depositions
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questions; serving the subpoenas on the non-party witnesses to be deposed; and
paying witness fees where applicable, his motion to depose witnesses upon written
deposition questions (Doc. 61) must be DENIED.
Recognizing, however, that the plaintiff proposes to propound a limited number
of questions to a discrete number of witnesses, we will in the exercise of our
discretion over discovery matters permit the plaintiff to propound these questions as
interrogatories pursuant to Rule 33 of the Federal Rules of Civil Procedure, provided
the plaintiff tenders these interrogatories within the revised deadline for discovery set
by this order.
Accordingly, for the foregoing reasons, IT IS ORDERED that the plaintiff’s
motion to depose witnesses upon written deposition questions (Doc. 61) is DENIED
without prejudice to the filing of interrogatories within the discovery deadlines set by
this Court; the plaintiff’s motion to amend his complaint (Doc. 54) is GRANTED in
order to reflect in paragraphs 2 through 6 that the officer who interviewed the
plaintiff was Lieutenant Johnson and not Captain Harris; the plaintiff’s motion to
compel further responses to four discovery requests (Doc. 53) is DENIED; and the
defendants’ motion (Doc. 62) is GRANTED. The discovery period in this action is
enlarged until November 1, 2013. The parties shall file dispositive motions and
responsive briefs on or before December 2, 2013.
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/S/ Martin C. Carlson
Martin C. Carlson
United States Magistrate Judge
Dated: September 23, 2013

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