(PC) Dalke v. King ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JOSHUA JASON DALKE, ) Case No.: 1:20-cv-00534-AWI-SAB (PC) ) 12 Plaintiff, ) ) ORDER DENYING PLAINTIFF’S MOTION TO 13 v. ) TAKE DEPOSITION OF DEFENDANTS 14 KING CLARK, et al., ) (ECF No. 88) ) 15 Defendants. ) ) 16 ) 17 Plaintiff Joshua Jason Dalke is proceeding pro se and in forma pauperis in this civil rights 18 action pursuant to 42 U.S.C. § 1983. 19 Currently before the Court is Plaintiff’s motion to take the deposition of Defendants, filed 20 March 31, 2021. 21 It is not entirely clear how Plaintiff wishes to take Defendants’ depositions. To the extent, 22 Plaintiff seeks to take the depositions by written questions such depositions must be taken pursuant to 23 the procedures set forth under Federal Rule of Civil Procedure 31. 24 The deposition upon written questions basically would work as follows: The prisoner would 25 send out a notice of deposition that identifies (a) the deponent (i.e., the witness), (b) the officer taking 26 the deposition, (c) a list of the exact questions to be asked of the witness, and (d) the date and time for 27 the deposition to occur. The defendant would have time to send to the prisoner written cross- 28 examination questions for the witness, the prisoner would then have time to send to defendant written 1 || re-direct questions for the witness, and the defendant would have time to send to the prisoner written 2 || re-cross-examination questions for the witness[.] 3 || Harrell v. Jail, 2015 WL 8539037, *1—2 (E.D. Cal. Dec. 11, 2015) (quoting Brady v. Fishback, 2008 4 || WL 1925242, at *1—-2 (E.D. Cal. Apr. 30, 2008)). Plaintiff's in forma pauperis status also does not 5 |] entitle him to a waiver of any of the costs associated with this form of deposition; instead, he must pa 6 || the necessary deposition officer fee, court reporter fee, and costs for a transcript. Id. (citations 7 || omitted). 8 Courts have found a failure to make these showings defeats a motion to take depositions. See 9 || Harrell, 2015 WL 8539037, at *2; Jackson v. Woodford, 2007 WL 2580566, at *1 (S.D. Cal. Aug. 17 10 || 2007). Federal Rule of Civil Procedure 31(a)(2)(A)() requires a party to obtain leave of court to take 11 || more than ten depositions by written question. Plaintiff failed to obtain leave of court before serving 12 || his seventeen depositions by written questions. In addition, Plaintiff must identify the officer taking 13 || the depositions and the date and time for the depositions. Plaintiff must also show that he can pay the 14 || costs associated with written depositions, including fees for a deposition officer and court reporter, th 15 || costs of transcribing the deposition, and witness fees and mileage under Rule 45(b)(1). As stated 16 || above, Plaintiff's indigent status does not entitle him to a waiver of fees. 17 Accordingly, for the reasons discussed above, Plaintiff failed to make the required showing to 18 || conduct depositions by written questions and his motion is denied. 19 20 IT IS SO ORDERED. A (ee 21 lI Dated: _ April 5, 2021 OF 22 UNITED STATES MAGISTRATE JUDGE 23 24 25 26 27 28