(PC) Reid v. Nash ( 2023 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 WALTER R. REID, Case No. 1:22-cv-00549-ADA-EPG (PC) 10 Plaintiff, 11 v. ORDER DENYING PLAINTIFF’S MOTIONS 12 FOR MISCELLANEOUS RELIEF BARRY GREEN, 13 (ECF No. 43) Defendant. 14 15 Plaintiff Walter R. Reid is a state prisoner proceeding pro se in this civil rights action filed 16 pursuant to 42 U.S.C. § 1983. (ECF No. 23). The case is proceeding on Plaintiff’s Eighth 17 Amendment claim against Defendant Green for deliberate indifference to his serious medical 18 needs. (ECF Nos. 23, 24). Before the Court is Plaintiff’s filing dated November 20, 2023, and 19 docketed with this Court on November 27, 2023 (ECF No. 43.) For the reasons stated below, 20 Court denies requested relief. 21 I. FIRST MOTION 22 The first motion in the filing is titled “Plaintiff’s Notice and Motion for Objection to In 23 Camera hearing; and Motion to Renew Recommendation for Pro Bono Counsel.” (ECF No. 43, at 24 1). In this Motion, Plaintiff “objects to defendants in camera hearing request if its purpose is 25 being used to weigh evidence and the drawing of legitimate inferences because a defendant 26 moving summary judgment has the burden of showing that there is no genuine issue of material 27 fact.” (Id.) Plaintiff urges the Court to “examine whether defendant has prior suits similar to the 28 1 same claims made by plaintiff” and attaches a discovery response detailing those suits. (Id. at 2). 2 Finally, Plaintiff argues that “without the appointment of counsel under exceptional 3 circumstances pursuant to 28 U.S.C. § 1915(d),1 defendant’s exercising of confidential privilege 4 may be wholly fallacious.” (Id.) The Plaintiff appears to have misunderstood Defendant Green’s request for in camera 5 review (ECF Nos. 39, 40) of the five documents Green objected to producing in response to 6 Court’s Order to Exchange documents (ECF No. 33) as a request for an in camera hearing on a 7 motion for summary judgment. As detailed in the Court’s order related to Defendant’s objection 8 (ECF No. 42), the Court conducted in camera review of the documents strictly on the issues of 9 privilege and not for purposes of weighing evidence or drawing any inferences; the review was 10 entirely unrelated to the motion for summary judgment.2 11 The Court also declines Plaintiff’s invitation to examine eleven cases cited in the 12 Defendant’s discovery response because it is not clear what legal argument the Plaintiff is making 13 here or how these suits—even if any of them contain similar claims, as the Plaintiff argues—are 14 relevant to the Defendant’s objection based on privilege. 15 To the extent that Plaintiff’s motion can be construed as renewal of his request of pro 16 bono counsel, Plaintiff again fails to offer any argument in support of his motion. (ECF No. 43, at 17 2.) From the included exhibits, it appears that Plaintiff is able to engage in discovery and obtain 18 meaningful responses without assistance of counsel. (ECF No. 43, at 4.) A routine discovery 19 objection by the Defendant does not indicate the presence of complex legal issues warranting a 20 finding of exceptional circumstances in which the Court may request the voluntary assistance of 21 counsel pursuant to § 1915(e)(1). Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), 22 withdrawn in part on other grounds, 154 F.3d 952 (9th Cir. 1998) (holding that while the 23 appellant might have fared better with counsel during discovery, this is not the test)). Moreover, 24 1 The Court will assume that Plaintiff meant 28 U.S.C. § 1915(e), since § 1915(d) has been renumbered to 25 § 1915(e) and it is currently § 1915(e)(1) that allows the Court to “request an attorney to represent any person unable to afford counsel.” 26 2 To the extent Plaintiff wishes to challenge Defendant’s assertion of privilege raised in the Declaration of 27 V. Pham (ECF No. 43, at 14–17), Plaintiff is reminded to follow the Court’s scheduling order, which provides that “claims of privilege may be challenged via a motion to compel.” (ECF No. 34, at 4). 28 1 § 1915(e)(1) explicitly limits appointments of counsel only to cases where a person is “unable to 2 afford counsel.” Plaintiff is not proceeding in forma pauperis in this action because at the time of 3 filing this suit, he had approximately $90,000 in an Individual Retirement Account. (ECF No. 9, 4 at 2; ECF No. 10). 5 Because the Court has not held and does not intend to hold any in camera hearings on a 6 motion for summary judgment and because the Plaintiff does not meet the requirements of 7 § 1915(e)(1) for appointment of counsel, the Court denies Plaintiff relief requested in this motion. 8 II. SECOND MOTION 9 In the same filing, Plaintiff also included a second motion titled “Plaintiff’s Motion for 10 Permission to Depose Non-Parties by Telephone; And Permissive Joinder.” (ECF No. 43, at 5.) 11 In this motion, Plaintiff asks for Court’s permission “to depose non-parties Angarra, 12 Kandhkorova, and Thomas.” (Id.) Plaintiff argues that “[t]he prison Litigation Coordinator V. 13 Pham refuses to process plaintiff’s legal papers for setting up a audio visual (Zoom) deposition 14 conference.” (Id.) Plaintiff then states that “[p]ermissive joinder is allowed pursuing to Fed. R. 15 Civ. P 20 (2)(A)(B)(3).”3 Plaintiff concludes with “should grant his motion Pursuant to Fed. R. Civ. P. 30 (B)(1)(3)(A)(B)(4)4 otherwise discovery would be lost (see, Ex. A).” The enclosed 16 Exhibit A includes of Plaintiff’s Inmate Request for Interview forms addressed to Notary Cornell 17 and litigation coordinator V. Pham, a list of questions that Plaintiff wants to pose to the witnesses, 18 and a declaration of V. Pham in support of objection to discovery. (ECF No. 43, at 8–17). 19 Federal Rule of Civil Procedure 30 on depositions by oral examination, as well as the 20 Court’s Scheduling Order (ECF No. 34), require that in addition to naming the person to be 21 deposed, Plaintiff must also provide the name and address of the court reporter who will take the 22 deposition, the estimated cost for the court reporter’s time and the recording, and the source of 23 funds for payment of that cost. (ECF No. 34, at 2–3.) Both the Rule and the Court’s Order make it 24 clear that Plaintiff bears the responsibility to name a court reporter who would be transcribing the 25 deposition prior to noticing the deposition and filing the motion. This Court previously reminded 26 27 3 It is not clear what relevance this Rule on joinder of parties has to a motion to depose non-parties. Further, this subsection does not exist. 28 4 While Rule 30 governs oral depositions, this particular subsection does not exist. 1 the Plaintiff of his responsibility to make arrangements for the deposition with the court reporter 2 and availability of other means of discovery if he is unable to do so. (ECF No. 36). It appears that 3 the litigation coordinator relayed the same message to the Plaintiff in response to at least one of 4 his Requests for Interview: “you just need a court reporter. You will have to seek out yourself to find a court reporter to agree on the cost and willing to be part of the deposition. Other than that, 5 you need to provide the courts all that information they request.” (ECF No. 43, at 10). 6 Plaintiff’s motion does not comply with the requirements of either Rule 30 or this Court’s 7 Scheduling Order. It fails to identify the court reporter who will take the deposition, the estimated 8 cost, or the source of funds. Likewise, Federal Rule of Civil Procedure 31, which allows 9 deposition by written questions, requires the Plaintiff to send out a notice of deposition that 10 identifies (a) the deponent, (b) the officer taking the deposition, (c) a list of the exact questions to 11 be asked of the witness, and (d) the date and time for the deposition to occur. It also still requires 12 that the Plaintiff make arrangements with a court reporter. “If plaintiff wants to depose defendant 13 on written questions, plaintiff needs to set up such a deposition, arrange for a court reporter 14 and arrange for the attendance of the witness. It is not defendant’s obligation or the court’s 15 obligation to do so.” Harrell v. Jail, No. 2:14-cv-1690, 2015 WL 8539037, at *2 (E.D. Cal. Dec. 16 11, 2015) (emphasis added) (quoting Lopez v. Horel, No. 06-4772, 2007 WL 2177460, at *2 17 (N.D. Cal. July 27, 2007)). As one Court noted when outlining how Rule 31 works, “[t]he 18 deposition upon written questions procedure may sound like an inexpensive way for a prisoner to 19 do discovery but usually is not:” 20 The deposition upon written questions basically would work as follows. The prisoner would send out a notice of deposition that 21 identifies (a) the deponent (i.e., the witness), (b) the officer taking 22 the deposition, (c) a list of the exact questions to be asked of the witness, and (d) the date and time for the deposition to occur. The 23 defendant would have time to send to the prisoner written cross- 24 examination questions for the witness, the prisoner would then have time to send to defendant written re-direct questions for the witness, 25 and the defendant would have time to send to the prisoner written 26 re-cross-examination questions for the witness. When all the questions—without any answers—are ready, the prisoner would 27 send them to the deposition officer and the officer would take the 28 deposition of the witness. (The deposition officer can be any person 1 authorized by law to administer oaths, see Fed. R. Civ. P. 28(a), such as a notary public and need not be a court employee.) The 2 questions are read by the deposition officer, the responses are 3 reported by a court reporter and the transcript is prepared as it would be for an oral deposition. The deposition officer does not 4 stray from the written script of questions and asks only those 5 questions that are on the list from the prisoner and defendant. To depose a non-party on written questions, that witness must be 6 subpoenaed. To obtain a deposition upon written questions, the 7 prisoner thus has to pay the witness fee, deposition officer fee, court reporter fee, and the cost of a transcript of the proceedings. 8 Lopez, 2007 WL 2177460, at *2, n.2. Here, as in Harrell and Lopez, Plaintiff has not made 9 arrangements with the court reporter. To the extent Plaintiff’s Request to Interview Notary 10 Cornell (ECF No. 43 at 8) can be construed as an attempt to designate a deposition officer, there 11 does not appear to be an assent to this arrangement by the Notary nor is it sufficient to meet the 12 requirements of Rule 31 even if there was an agreement. The deposition officer merely reads the 13 questions; a court reporter is still required to record the responses. 14 In sum, Plaintiff has not met either the Rule 30 or the Rule 31 requirements. As this Court 15 repeatedly told the Plaintiff, it is his responsibility to make arrangements with the court reporter 16 to take a deposition. (ECF Nos. 34, 36). Plaintiff can proceed with discovery by other means, 17 such as written interrogatories, requests for production, or requests for admission. See Klingele v. 18 Eikenberry, 849 F.2d 409, 412 n.1 (9th Cir. 1988) (a pro se prisoner may not have the means to 19 conduct discovery such as taking depositions, but she is entitled to an opportunity to serve 20 interrogatories or request documents). These other means of obtaining discovery are also 21 discussed in the Court’s scheduling order. (ECF No. 34). 22 For these reasons, the Court denies Plaintiff relief requested in this motion. 23 III. CONCLUSION. 24 The Court denies the Plaintiff relief requested in his filing dated November 20, 2023. 25 (ECF No. 43). 26 Before filing any future motion for discovery, Plaintiff is directed to review this order, the 27 Court’s scheduling order (ECF No. 34), and ensure that he complies with the requirements of 28 Federal Rule of Civil Procedure and the Court’s Local Rules. Future motions that do not comply 1 | with these rules or fail to present specific, cogent arguments for Court’s consideration, may be 2 | summarily denied. United States v. Williamson, 439 F.3d 1125, 1138 (9th Cir. 2006). 3 4 IT IS SO ORDERED. Dated: □ November 28, 2023 Fahey — 6 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28