DiPietro v. The Department of Corrections and Its Employees Listed Herein et al
MEMORANDUM re pltf's mtns for Order 78 , to Appoint Counsel 79 and to Appoint Expert 80 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 10/11/16. (ma)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
THE DEPARTMENT OF
CORRECTIONS & ITS EMPLOYEES
LISTED HEREIN, et al.,
CIVIL NO. 1:CV-15-1137
Presently we consider plaintiff, Nicodemo DiPietro’s, three discovery-related
motions: (1) a motion to order the Pennsylvania Department of Corrections (DOC) to
release information (ECF No. 78); (2) a fifth motion for appointment of counsel (ECF No.
79); and a (3) motion to appoint a private investigator (ECF No. 80). For the reasons that
follow all three motions will be denied.
Motion to Order the DOC to Release Information
In his motion, Plaintiff requests that Defendants provide him with responses
to three specific interrogatories. We will construe this motion as a motion to compel.
DiPietro seeks to learn: (1) since 1990, how many times has Dixie Wible, visited a DOC
inmate and how many visitor’s lists does her name appear on; (2) the phone and e-mail
records of all Defendants; and (3) the phone and e-mail records of former Attorney
General Kathleen Kane. (ECF No. 78). He does not allege he has requested this
information from the Defendants and that they have refused to respond to his discovery
request. Absent a discovery dispute among the parties, the court does not generally
involve itself in such matters. DiPietro must direct his discovery request to defense
counsel prior to presenting a discovery issue or dispute to the court. Accordingly, his
motion to compel as to the Defendants, is denied. To the extent DiPietro seeks
information from a third party, he must follow the Federal Rules of Civil Procedure in
obtaining discovery from such parties. He does not indicate what efforts he has
undertaken to obtain information from former Attorney General Kane; thus his motion will
Plaintiff’s Fifth Motion for Appointment of Counsel
The court has previously set forth the legal standard for evaluating a motion
for the appointment of counsel filed by an inmate proceeding in forma pauperis. We
relied upon that standard in denying DiPietro’s previous requests for counsel. See ECF
Nos. 20 and 60. We therefore will assume the parties’ familiarity with this standard and
will not repeat it here.
DiPietro seeks the appointment of counsel for the purpose of collecting
computerized information from Defendants and taking depositions. He claims his
placement in the Restricted Housing Unit (RHU) prevents him from collecting evidence or
conducting depositions. (ECF No. 79). Based on his filings since the initiation of this
action, DiPietro has established his ability to communicate in writing with the Court and
defense counsel. While his placement in the RHU may impact various aspects of his
prison life, it does not hamper his ability to conduct discovery in this matter. He does not
suggest in his brief why he cannot conduct discovery from his RHU cell. If DiPietro seeks
to depose individuals, provided he provides proper notice and can bear the associated
costs, he will be permitted to do so under appropriate security measures as deemed
necessary by prison officials. However, DiPietro, like all pro se litigants, will be required
to bear the costs associated with his discovery efforts as “[t]here is no provision in the [in
forma pauperis] 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.” Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1999), cert. denied, 510
U.S. 1196, 114 S.Ct. 1306, 127 L.Ed.2d 657 (1994). DiPietro’s fifth motion for the
appointment of counsel will be denied.
Motion to Appoint Private Investigator
DiPietro seeks the appointment of an investigator to obtain evidence from the
Defendants and former Attorney General Kane’s computers and phones. (ECF No. 80).
As noted above, pro se litigants bear the costs of their discovery efforts. Tabron, supra.
His motion will be denied.
We will issue an appropriate order.
/s/ William W. Caldwell
William W. Caldwell
United States District Judge
Date: October 11, 2016
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