Brewer v. Buford #495

Filing 84

ORDER: Motion to attend a federal court hearing scheduled for 6/21/2011 74 is Terminated as MOOT. The motion for sanctions 78 is Denied. Motion to subpoena witnesses 75 is Denied. Motion to Answer Deposition 81 is Terminated as MOOT. Motion t o ascertain status of case 82 is Granted. This case is in the discovery stage and is governed by the scheduling order previously entered by the Magistrate Judge 45 . In case the Plaintiff no longer has this order, the Clerk is directed to send a copy to the Plaintiff. Signed by Magistrate Judge Joe Brown on 8/17/11. (xc:Pro se party by regular and certified mail.)(dt)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
DANNY LEE BREWER,

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Plaintiff
v.
K. BUFORD #495,
Defendant

No. 3:11-0074
Judge Campbell/Brown
Jury Demand

O R D E R
Presently pending are several motions in this matter.
The first is a motion by Plaintiff to attend a federal court
hearing scheduled for June 21, 2011 (Docket Entry 74). This motion
is terminated as MOOT.

The Court had originally scheduled a

hearing in this matter for June 21st, but canceled the hearing by
order (Docket Entry 71) on June 15, 2011.

It appears that the

Court’s order to cancel the hearing and Plaintiff’s motion to
attend the hearing crossed in the mail.
The Magistrate Judge’s order of June 15, 2011 (Docket
Entry 71) did provide that Defendant was granted permission to
continue

the

telephone.
2011.

deposition

with

Mr.

Brewer

being

available

by

The deposition was apparently rescheduled for July 12,

According to the motion for sanctions (Docket Entry 78), at

the appointed time the Plaintiff refused to participate in the
deposition by telephone (Docket Entry 78-1).
sanctions is DENIED.

The motion for

Since the deposition was properly notified

and the Plaintiff declined to participate, there was nothing to

prevent

the

Defendant

from

continuing

the

deposition

of

Mr.

Matheny. The fact that they chose to terminate the deposition was
their own decision.

There is certainly nothing to prevent them

from taking an affidavit from Mr. Matheny to use in a motion for
summary judgment, or to reschedule the deposition again with
Plaintiff’s ability to participate by telephone.

This is not a

criminal trial, and given the fact that the Plaintiff is an inmate,
the Magistrate Judge believes that arrangements allowing Plaintiff
to participate at a deposition by telephone is adequate under the
circumstances.
Next is a motion to subpoena witnesses by the Plaintiff
(Docket Entry 75).

As a practical matter there is no real way for

a Plaintiff to take pretrial discovery depositions as the Plaintiff
would be responsible for tendering the witness the appropriate
witness fee and mileage in accordance with Rule 45, as well as to
make the necessary arrangements to have the deposition recorded by
some means.

The motion is therefore denied. While the Plaintiff

is allowed to proceed in forma pauperis, there is no provision,
as such, for the Court to pay these fees on behalf of the Plaintiff.
A request for subpoenas for witnesses to actually attend
a trial and testify is a matter than can be considered at a later
date.
Next is a motion entitled “Motion to Answer Deposition”
(Docket Entry 81).

The Magistrate Judge is not sure what this

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motion is about.

If the Defendant intends to take the deposition

of the Plaintiff, he may do so, but he needs to give the Plaintiff
a minimum of seven days of actual notice of the time of the
deposition (see Docket Entry 25).
unable

to

find

a

particular

Since the Magistrate Judge is

request

in

this

motion,

it

is

terminated as MOOT.
The final pleading is a motion to ascertain status of
case by the Plaintiff (Docket Entry 82) and is GRANTED.

This case

is in the discovery stage and is governed by the scheduling order
previously entered by the Magistrate Judge (Docket Entry 45).

In

case the Plaintiff no longer has this order, the Clerk is directed
to send a copy to the Plaintiff.
It is so ORDERED.
/s/ Joe B. Brown
JOE B. BROWN
United States Magistrate Judge

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