DiPietro v. The Department of Corrections and Its Employees Listed Herein et al

Filing 88

MEMORANDUM re pltf's mtns for trial witnesses 83 , for Discovery 84 , to appoint stenographer and counsel 85 and dfts' mtn to strike 86 (Order to follow as separate docket entry)Signed by Honorable William W. Caldwell on 11/15/16. (ma)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
NICODEMO DiPIETRO,
Plaintiff
vs.
THE DEPARTMENT OF
CORRECTIONS & ITS EMPLOYEES
LISTED HEREIN, et al.,
Defendants

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CIVIL NO. 1:CV-15-1137
(Judge Caldwell)

MEMORANDUM
I.

Introduction
Presently before the court are several discovery and pre-trial motions filed

by pro se plaintiff, Nicodemo DiPietro, an inmate at the state correctional institution in
Somerset, Pennsylvania. DiPietro’s motion concerning his potential trial witnesses will be
denied as premature. (ECF No. 83). His discovery motion seeking unredacted and free
copies of documents produced in discovery by Defendants will be denied. (ECF No. 84).
His final discovery motion seeking a court-appointed stenographer and counsel for the
purpose of taking Defendants’ depositions will also be denied. (ECF No. 85).
Defendants’ motion to strike DiPietro’s final discovery motion (ECF No. 86) will be
granted in part.

II.

Discussion
A.

Motion for Trial Witnesses (ECF No. 83).
The Defendants filed an Answer to the Amended Complaint on August 17,

2016. (ECF No. 62). We then issued a scheduling order setting the close of discovery
by February 23, 2017, and the filing of dispositive motions by March 26, 2017. (ECF No.
68). On October 13, 2016, Plaintiff filed a “Motion for Witnesses” naming thirty-one
individuals he seeks to call at trial. (ECF No. 83). If it was DiPietro’s intent to identify his
potential trial witnesses for the Defendants and the court, he need not do so at this time.
If it was DiPietro’s intent to request subpoenas to secure the attendance of the listed
individuals at his trial, his request is denied. After the deadline for filing dispositive
motions, and our resolution of any such motion, Plaintiff may renew his request. Until
then, DiPietro’s motion concerning his potential trial witnesses will be denied.

B.

Motion for Discovery (ECF No. 84).
DiPietro’s second motion seeks to compel Defendant to provide him with

unredacted copies of documents produced in discovery. He also requests that
Defendants provide him with free copies of those documents. As DiPietro does not
identify any particular discovery request at issue, we cannot address his concern that
Defendants’ production of redacted discovery materials will thwart his ability to prepare
for trial in this matter. Additionally, although DiPietro proceeds in forma pauperis, there
"is no provision in the [in forma pauperis] statute for the payment by the government of

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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. 1993).
Accordingly, his “Motion for Discovery” will be denied.

C.

Motion to Appoint Stenographer to Depose All Defendants
and Sixth Motion for Appointment of Counsel (ECF No. 85).
DiPietro’s final motion requests that the court provide him with a

stenographer and counsel for the purpose of conducting depositions of the Defendants.
Defendants have filed a motion to strike DiPietro’s motion as it was not properly served
upon them and mentions the details of his rejected settlement offer. (ECF Nos. 86 and
87). First, as noted above, DiPietro is responsible for paying all litigation expenses,
including those associated with his discovery efforts, including depositions. See Tabron,
supra. Thus, his request for a court-appointed stenographer will be denied. To the
extent DiPietro seeks the appointment of counsel for the sole purpose of conducting
Defendants’ depositions on his behalf, the court will construe this as his sixth motion for
appointment of counsel and deny it. Based on DiPietro’s filings, and our previous orders
addressing his prior requests for counsel, it is clear that he is capable of properly and
forcefully prosecuting his claims. He suffers from no impediment that would prevent him
from conducting adequate factual investigation of his claims or advancing his case
without the assistance of counsel. See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d

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Cir. 2002); Tabron, 6 F.3d at 155-57 (listing factors relevant to a request for counsel).
Accordingly, DiPietro’s sixth motion for counsel will be denied.
Defendants’ motion to strike any reference to settlement discussions
contained within this motion will be granted. See ECF No. 87. A court may strike from a
pleading any “redundant, immaterial, impertinent or scandalous matter,” Fed. R. Civ. P.
12(f), but motions to strike are disfavored. Ciolli v. Iravani, 625 F. Supp. 2d 276, 283
(E.D. Pa. 2009). Defendants argue Fed. R. Evid. 408 prohibits DiPietro’s reference to
any settlement discussions between the parties, including the terms of his failed
settlement offer. Paragraph 3 of DiPietro’s motion for a stenographer and counsel recites
the details of his settlement offer that was rejected by Defendants. As DiPietro’s
referenced settlement discussions are not relevant in any way to the requested relief he
seeks in his motion, we will direct the Clerk of Court to seal DiPietro’s original motion,
redact paragraph 3 from it, and then docket the redacted motion.
We will issue an appropriate order.

/s/ William W. Caldwell
William W. Caldwell
United States District Judge

Date: November 15, 2016

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