KRAMER v. THE CITY OF NEW KENSINGTON et al

Filing 120

MEMORANDUM ORDER GRANTING re 110 Motion for Miscellaneous Relief filed by MICHAEL KRAMER, 109 Motion for Miscellaneous Relief filed by MICHAEL KRAMER, 108 Motion for Discovery filed by MICHAEL KRAMER. Signed by Magistrate Judge Cynthia Reed Eddy on 2/3/2016. (ajt)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
MICHAEL KRAMER,
Plaintiff,
v.
THE CITY OF NEW KENSINGTON, et
al.,
Defendants.

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Civil Action No. 13-606
United States Chief District Judge Joy
Flowers Conti
United States Magistrate Judge
Cynthia Reed Eddy

MEMORANDUM AND ORDER
Plaintiff, Michael Kramer (“Plaintiff”), is a pro se state prisoner who has filed this civil
rights suit pursuant to 42 U.S.C. § 1983 as Defendants the following: the City of New
Kensington, the New Kensington Police Department, and its officers Baker, Grillo and Schubert
as well as the Arnold Police Department officer William Weber. Plaintiff’s Amended Complaint
alleges violations of his rights under the Fourth, Eighth and Fourteenth Amendments to the
United States Constitution. [ECF No. 39].
On September 25, 2015, this Court granted in part and denied in part the Defendants’
motion for summary judgment. See Order of 9/25/2015 [ECF No. 103]. Concurrently, the Court
allowed Plaintiff to submit a motion to seek additional discovery within thirty days of the Order,
or October 25, 2015. Id. Instead of doing so, Plaintiff appealed Chief Judge Conti’s Court’s
Memorandum Opinion and Order to the Court of Appeals for the Third Circuit on October 9,
2015, which was ultimately dismissed for failure to prosecute. See Notice of Appeal [ECF No.
104]; Certified Order of USCA [ECF No. 113]. On November 24, 2015, approximately a month
after his discovery motions were due, Plaintiff filed multiple discovery motions seeking
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additional discovery [ECF No. 108], to take depositions [ECF No. 109] and a request for
documents and electronically stored information [ECF No. 110]. Defendants responded to
Plaintiff’s motions on January 27, 2016 and the motions are now ripe for review.
The Supreme Court has held that pro se complaints should be held “to less stringent
standards than formal pleadings drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520 (1972).
Thus the courts are required to liberally construe a pro se litigant’s pleadings, Higgs v. Att'y Gen.,
655 F.3d 333, 339 (3d Cir. 2011), and are “especially likely to be flexible when dealing with
imprisoned pro se litigants. Such litigants often lack the resources and freedom necessary to comply
with the technical rules of modern litigation.” Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 24445 (3d Cir. 2013) (citing Moore v. Florida, 703 F.2d 516, 520 (11th Cir. 1983)). However, while
“district courts are counseled to liberally construe pro se pleadings, all parties must follow the
Federal Rules of Civil Procedure.” Thomas v. Norris, 2006 WL 2590488, *4 (M.D. Pa. 2006).
Leniency “has its limits and litigants, even those appearing pro se, ‘cannot flout procedural rules they must abide by the same rules that apply to all other litigants.’” Serrano v. Pigos, 3:12-CV-323,
2013 WL 655741, at *2 (M.D. Pa. Feb. 22, 2013) (quoting Mala, 704 F.3d at 245 (citing McNeil v.
United States, 508 U.S. 106, 113 (1993))).
Regarding discovery scope and limitations as set forth in Federal Rule of Civil Procedure 26,
a party
may obtain discovery regarding any nonprivileged matter that is
relevant to any party’s claim or defense and proportional to the needs
of the case, considering the importance of the issues at stake in the
action, the amount in controversy, the parties' relative access to
relevant information, the parties' resources, the importance of the
discovery in resolving the issues, and whether the burden or expense
of the proposed discovery outweighs its likely benefit. Information
within this scope of discovery need not be admissible in evidence to
be discoverable.

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Fed. R. Civ. P. 26(b)(1). See Blackstone v. Thompson, 2:12-CV-899, 2013 WL 795040, *2 (W.D.Pa.
2012) (discussing Rules 26, 34 and 37 of the Federal Rules of Civil Procedure, and applying them to
a number of discovery requests/disputes in prisoner litigation).
A court should consider a prisoner-litigant’s inability to gather facts relevant to the proof of
his claim and should be sensitive to his discovery difficulties. Montgomery v. Pinchak, 294 F.3d 492,
503-04 (3d Cir. 2002) (citing Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993)). However, “[p]ro se
litigants must follow the same rules of procedure that govern other litigants,” King v. Atiyeh, 814
F.2d 565, 567 (9th Cir. 1987), including the discovery rules. Honeycutt v. Snider, 2011 WL 6301429,
*3 (D.Nev. 2011).

With that backdrop, Plaintiff’s request to seek additional discovery is GRANTED as
follows:
To the extent that Plaintiff moves to take the oral depositions of Defendants Baker,
Shubert, Weber and Grillio, the request is GRANTED and he may do so pursuant to, and in strict
compliance with, Federal Rule of Civil Procedure 30. To this end, Plaintiff is also informed that
he, and not the Court or Defendants, must arrange for or notice the depositions, as arranging
depositions is Plaintiff’s Rule 30 responsibility. Additionally, it is Plaintiff’s responsibility to
pay the fees associated with engaging a court reporter or the preparation of deposition
transcripts. It is not incumbent upon the Court, or the Defendants, to assume responsibility,
logistically or financially for the depositions Plaintiff wishes to conduct. See e.g., Tabron, 6 F.3d
at 159. “There is no provision in 28 U.S.C. § 1915 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.” Ball v. Struthers, Civil No. 1:11-CV-1265, 2011 WL 4891026 at *1
(M.D.Pa. Oct. 13, 2011), cited with approval by Huertas v. Beard, 1:10-CV-10, 2012 WL
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1564513 (W.D. Pa. May 2, 2012). 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 Civil Procedure, a copy of which will be mailed to Plaintiff with this Order.
Next, to the extent the Plaintiff requests leave to request documents and electronically
stored information (“ESI”), that request is GRANTED to the extent that Plaintiff’s request for
production of documents and ESI is relevant to Plaintiff’s remaining claims and is otherwise
discoverable.

Plaintiff may serve a request for documents and/or electronically stored

information pursuant to Federal Rule of Civil Procedure 34, a copy of which will be mailed to
Plaintiff with this Order. To the extent that Defendants have previously provided or attempted to
provide Plaintiff with the information he seeks, Defendants shall again provide Plaintiff with said
information. Plaintiff is also informed that the grant of his discovery requests does not reopen
the entire discovery period and permits him only to depose the defendants and seek the
documents requested in his previously filed motions.
Accordingly, the following Order is entered consistent with this memorandum:
AND NOW, this 3rd day of February, 2016,
Plaintiff’s Motion to Seek Additional Discovery [ECF No. 108] is GRANTED;
Plaintiff’s Motion for Leave to Take Oral Depositions [ECF No. 109] is GRANTED; and
Plaintiff’s Motion for Leave to Request Documents and Electronically Stored
Information [ECF No. 110] is GRANTED.
By the Court,
s/CYNTHIA REED EDDY
Cynthia Reed Eddy
United States Magistrate Judge

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cc:

The Honorable Joy Flowers Conti
United States District Court
Western District of Pennsylvania
Michael Kramer
GH7068
SCI Houtzdale
PO Box 1000
Houtzdale, PA 16698
PRO SE
Counsel for Defendants
David J. Rosenberg
Weber Gallagher Simpson Stapleton Fires & Newby
Two Gateway Center, Suite 1450
603 Stanwix Street
Pittsburgh, PA 15222

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