(PS) Ferreira da Silva v. Ross ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ALEXANDRA FERREIRA DA SILVA, No. 2:21-cv-01208-DJC-CKD PS 12 Plaintiff, 13 v. ORDER 14 JONATHAN KEVIN ROSS, et al.,, 15 Defendants. 16 17 18 Plaintiff proceeds without counsel on a first amended complaint filed on October 28, 19 2021. Plaintiff alleges that jail officer Heidi Morgan used unconstitutionally excessive force, 20 striking plaintiff in the back, while plaintiff was detained at the Yuba County Jail. 21 Plaintiff’s recently filed discovery-related requests are before the court. (ECF Nos. 56, 22 59.) Plaintiff requests that the court issue a deposition subpoena and moves the court to join 23 parties previously terminated from the action. Plaintiff did not set these matters for hearing,1 and 24 the court finds them suitable for decision without further briefing or oral argument. See Local 25 Rule 230(g), 251(a). For the reasons explained below, the requests will be denied. 26 27 1 Plaintiff is directed to review the requirements of Local Rules 230 and 251 pertaining to the filing of motions and discovery related motions, including the procedures for setting a discovery 28 motion for hearing. 1 Plaintiff’s initial disclosures were also recently filed on the docket. Plaintiff is informed 2 that neither discovery requests served on an opposing party, nor that party’s responses, should be 3 filed with the court until such time as a party becomes dissatisfied with a response and seeks 4 relief from the court pursuant to the Federal Rules of Civil Procedure, such as through a motion to 5 compel. Discovery requests between the parties shall not be filed with the court unless, and until, 6 they are at issue. 7 Request to Issue Subpoena (ECF No. 56) 8 Utilizing a form created by the Judicial Council of California, plaintiff requests the court 9 issue a deposition subpoena or subpoenas. (ECF No. 56.) Plaintiff seeks to depose Officer Snow, 10 Officer Chavez, and the male officer involved in the incident dated March 17, 2020.2 (Id. at 4.) 11 Plaintiff is informed that the form for use in federal court for a deposition subpoena is AO–88A, 12 “Subpoena to Testify at a Deposition in a Civil Action.” 13 Rule 45 of the Federal Rules of Civil Procedure authorizes the issuance of a subpoena to 14 command a nonparty to attend and testify at a deposition. Fed. R. Civ. P. 45(a)(1)(A)(iii); Fed. R. 15 Civ. P. 30(a)(1). “The clerk must issue a subpoena, signed but otherwise in blank, to a party who 16 requests it.” Fed. R. Civ. P. 45(a)(3). “That party must complete it before service.” Id. 17 In forma pauperis status allows plaintiff assistance in the service of a court-approved 18 deposition subpoena by the United States Marshal. However, plaintiff must provide a properly 19 completed form AO–88A for each non-party witness sought to be deposed. Plaintiff must also 20 tender payment for witness fees and if applicable, travel expenses, concurrently with the 21 subpoena. See Fed. R. Civ. P. 45; 28 U.S.C. § 1821. In addition to the deposition costs and non- 22 party witness fees under Rule 45 of the Federal Rules of Civil Procedure, plaintiff is required to 23 arrange for the deposition to be conducted before a deposition officer, and to pay for the 24 recording of the deposition pursuant to Rule 30. See Redick v. Lowes Home Centers, LLC, No. 25 2 In listing defendant Morgan in the “respondent” box of the California form, plaintiff may also seek to depose defendant Morgan through this request. (ECF 56 at 1.) Plaintiff should not need a 26 subpoena to depose defendant Morgan, who is a party to this suit. See Fed. R. Civ. P. 30(b)(1). 27 Defense counsel should make defendant available to participate in a properly noticed deposition, so long as plaintiff arranges for a deposition reporter and pays all recording costs as required by 28 Federal Rule of Civil Procedure 30(b)(3)(A). 1 }} 1:21-CV-00358-SAB, 2022 WL 2133799, at *4 (E.D. Cal. June 14, 2022) (in forma pauperis 2 || status does not provide for waiver of witness fees, mileage, or deposition officer fees). 3 Plaintiff's request for issuance of a deposition subpoena will be denied, but the court will 4 || consider a renewed request. In any renewed request for the court to issue a deposition subpoena, 5 || plaintiff must provide a properly completed form AO-88A for each requested deponent, affirm to 6 || the court that plaintiff will retain and pay a court reporter to act as a deposition officer, and tender 7 || payment for witness fees and, if applicable, travel expenses. 8 Motion for Joinder (ECF No. 59) 9 Plaintiff has filed a motion styled as a motion for joinder in which plaintiff seeks to add 10 || the Yuba County Jail and Sheriff's Department to this case as defendants. (ECF No. 59 at 3.) 11 || Defendant has opposed the motion. (ECF No. 60.) In support of the motion, plaintiff cites 12 || “section 379” which the court infers is section 379 of the California Code of Civil Procedure. 13 | Plaintiffis informed that this court applies the Federal Rules of Civil Procedure rather than the 14 || California Code of Civil Procedure. 15 Through this motion, plaintiff seeks to join Yuba County defendants in order to revive 16 || previously dismissed claims. The motion will be denied. Plaintiffs claims against the Yuba 17 || County Sheriff's Department were dismissed without leave to amend by order dated July 11, 18 || 2022 (ECF No. 37) and cannot be revived through a motion for joinder. 19 Order 20 In accordance with the above, IT IS ORDERED: 21 1. Plaintiffs request for issuance of a deposition subpoena or subpoenas (ECF No. 56) is 22 || denied without prejudice to renewal with a properly completed form AO—88A for each non-party 23 || witness-deponent, affirmation that plaintiff will retain and pay for a court reporter to act as a 24 || deposition officer, and tender of payment for witness fees and, if applicable, travel expenses. 25 2. Plaintiffs motion styled as a motion for joinder (ECF No. 59) is denied. 26 | Dated: April 12, 2023 □□ I / dle ae 7 CAROLYNK. DELANEY 28 reneira?lev1208.145 UNITED STATES MAGISTRATE JUDGE