Davall v. Cordero ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 JOSEPH DAVALL, Case No.: 20-CV-1968 JLS (KSC) CDCR #AW-8294, 12 ORDER OVERRULING Plaintiff, 13 PLAINTIFF’S OBJECTION TO vs. MAGISTRATE JUDGE’S ORDER 14 A. CORDERO; D. WHITE; 15 WHITMAN, 16 Defendants. (ECF No. 56) 17 18 19 Presently before the Court is pro se Plaintiff Joseph Davall’s Objection to U.S. 20 Magistrate Judge Karen S. Crawford’s Order Granting Defendants’ Motion to Take 21 Plaintiff’s Deposition (“Objs.,” ECF No. 56). Plaintiff objects to Magistrate Judge 22 Crawford’s August 5, 2021 Order (“Order,” ECF No. 48), which granted Defendants’ ex 23 parte application pursuant to Federal Rule of Civil Procedure 30(a)(2)(B) and 30(b)(4) to 24 depose Plaintiff, an incarcerated individual, and to conduct the deposition remotely. 25 Having carefully considered Plaintiff’s arguments and the law, the Court OVERRULES 26 Plaintiff’s objections. 27 /// 28 /// 1 BACKGROUND 2 Plaintiff, currently incarcerated at Calipatria State Prison (“CAL”) located in 3 Calipatria, California, is proceeding pro se and in forma pauperis (“IFP”) in this civil rights 4 action pursuant to 42 U.S.C. § 1983. On October 5, 2020, Plaintiff filed his Complaint 5 alleging that Defendants violated his rights under the Eighth and Fourteenth Amendments. 6 See ECF No. 1. On November 5, 2020, the Court sua sponte screened Plaintiff’s Complaint 7 pursuant to 28 U.S.C. §§ 1915(e)(2) and 1915A(b) and dismissed Plaintiff’s claims against 8 Defendant White but determined that Plaintiff alleged sufficient factual content to survive 9 initial screening as to his Eighth Amendment claim against Defendants Cordero and 10 Whitman. ECF No. 4. On January 19, 2021, Defendant Whitman filed a motion to dismiss. 11 ECF No. 22. While Defendant Whitman’s motion to dismiss was still under submission 12 with this Court, Plaintiff filed a motion for summary judgment on May 21, 2021. ECF No. 13 35. On June 1, 2021, the Court granted in part and denied in part Defendant Whitman’s 14 motion to dismiss. ECF No. 37. Defendant Whitman filed an answer on June 15, 2021, 15 ECF No. 38, and Defendant Cordero filed an answer on August 30, 2021, ECF No. 54. 16 On August 4, 2021, Defendants filed an ex parte application requesting leave of the 17 Court to depose Plaintiff, an incarcerated person, in accordance with Federal Rule of Civil 18 Procedure 30(a)(2)(B) and 30(b)(4). ECF No. 46. Defendants stated that “[t]he record 19 does not reflect any factors that argue against allowing plaintiff’s deposition.” Id. at 1. On 20 August 5, 2021, Magistrate Judge Crawford granted Defendants’ ex parte application. ECF 21 No. 48 at 2. Magistrate Judge Crawford found that “plaintiff’s testimony is relevant to the 22 disposition of this Action.” Id. 23 Plaintiff filed an opposition to Defendant’s ex parte application to depose Plaintiff, 24 which was filed nunc pro tunc to August 16, 2021. ECF No. 50. On August 24, 2021, 25 Magistrate Judge Crawford issued an order overruling Plaintiff’s objections to Defendants’ 26 request to depose him. ECF No. 52. Magistrate Judge Crawford found that the request to 27 depose Plaintiff was not “delay tactic” as Plaintiff claimed, but “a regular and common 28 device” “to develop factual support for a party’s claims or defenses.” Id. at 2. Additionally, 1 Magistrate Judge Crawford found that “Plaintiff’s pro se status is not an excuse to refuse 2 to engage in discovery or comply with the Court’s rules and orders.” Id. Plaintiff’s present 3 objections followed. 4 LEGAL STANDARD 5 Because Magistrate Judge Crawford’s Order is a discretionary decision regarding a 6 nondispositive pretrial matter, the Court must determine whether the Order is “clearly 7 erroneous or contrary to law,” pursuant to 28 U.S.C. § 636(b)(1)(A). See Hoar v. Sara Lee 8 Corp., 900 F.2d 522, 525 (2d Cir. 1990); FDIC v. Fidelity & Deposit Co. of Md., 196 9 F.R.D. 375, 378 (S.D. Cal. 2000). “Clearly erroneous” review is “significantly deferential, 10 requiring ‘a definite and firm conviction that a mistake has been committed.’” Concrete 11 Pipe & Prods. v. Constr. Laborers Pension Tr., 508 U.S. 602, 623 (1993). On the other 12 hand, “contrary to law” review “permits independent review of purely legal determinations 13 by the magistrate judge.” Fidelity, 196 F.R.D. at 378 (citing, inter alia, Computer Econs., 14 Inc. v. Gartner Grp., Inc., 50 F. Supp. 2d 980, 983 (S.D. Cal. 1999)). 15 ANALYSIS 16 I. Timeliness 17 Federal Rule of Civil Procedure 72(a) allows a party to “serve and file objections to 18 the [magistrate judge’s] order within 14 days after being served with a copy.” Here, 19 Magistrate Judge Crawford’s Order was filed on August 5, 2021, but Plaintiff’s objections 20 were filed nunc pro tunc to August 30, 2021, twenty-five days later. 21 The Court declines to dispose of Plaintiff’s objections as untimely, however. 22 Although the operative objections were filed beyond the fourteen-day deadline, Plaintiff 23 first filed an opposition to the ex parte application on August 16, 2021, just twelve days 24 after Defendants’ application was filed. See ECF No. 50. At that time, Magistrate Judge 25 Crawford had already issued an Order on Defendants’ application. Allowing for time for 26 Plaintiff to receive the Order via mail, this first attempt at objecting to Defendants’ request 27 to depose Plaintiff would have been timely. In light of Plaintiff’s pro se status and his good 28 /// 1 faith attempt to comply with the time limits of Rule 72(a), the Court declines to dispose of 2 his objections for this procedural deficiency. 3 II. Clearly Erroneous or Contrary to Law 4 As an initial matter, Plaintiff does not appear to object to Magistrate Judge 5 Crawford’s grant of Defendants’ application pursuant to Federal Rule of Civil Procedure 6 30(b)(4), which enables Defendants to depose Plaintiff remotely. Therefore, the Court will 7 only address whether Magistrate Judge Crawford’s Order granting Defendants’ application 8 to depose Plaintiff, an incarcerated person, was clearly erroneous or contrary to law. Upon 9 consideration, the Court concludes that Magistrate Judge Crawford’s decision to allow 10 Defendants to depose Plaintiff was neither clearly erroneous nor contrary to law, and 11 accordingly OVERRULES Plaintiff’s objections. 12 First, Plaintiff claims that Defendants’ motion to depose Plaintiff “is nothing more 13 than intentional delay against [Plaintiff’s] summary judgment proceeding.” Objs. at 1. 14 However, Defendants seek to depose Plaintiff prior to the fact discovery cut-off, which is 15 currently set for November 5, 2021. ECF No. 39. Therefore, Defendants’ request is timely, 16 and Plaintiff’s allegations of intentional delay are without merit. 17 Second, Plaintiff’s objections are predicated on his assertion that “[i]t is against 18 principles of a fair trial to allow a seasoned attorney to cross examine a Pro Se litigant to 19 defense advantage.” Objs. at 1. These allegations are similarly without merit. Under 20 Federal Rule of Civil Procedure 30, Defendants have the right to depose Plaintiff with leave 21 of court because Plaintiff is confined in prison. See Fed. R. Civ. P. 30(a)(2)(B). Plaintiff, 22 in turn, has the right to challenge the oral deposition pursuant to Federal Rule of Civil 23 Procedure 26(c) but has failed to establish good cause to prevent the oral deposition from 24 taking place. See Fed. R. Civ. P. 26(c) (providing that a “court may, for good cause, issue 25 an order to protect a party or person from annoyance, embarrassment, oppression, or undue 26 burden or expense”). The Court agrees with Magistrate Judge Crawford that “depositions 27 are a regular and common device” “to develop factual support for a party’s claims or 28 defenses.” ECF No. 52 at 2. Plaintiff initiated this action. He is a key witness in this case. 1 Plaintiff “must follow the same rules of procedure that govern other litigants.” King v. 2 Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). 3 Finally, Plaintiff appears to allege that Defendants will attempt to “somehow . . . 4 trick[ him] into contradicting [his] previously filed written statements[.]” Objs. at 1. 5 However, Plaintiff seems to argue the deposition will not reveal any new information 6 because “it is highly unlikely that [Plaintiff] will . . . contradict[ his] previously filed written 7 statements at a[n] oral deposition.” Id. The Court finds Plaintiff’s allegations that 8 Defendants’ counsel will attempt to “trick[]” him at a deposition lack any factual support. 9 “That Plaintiff is pro se should not be a bar to the oral deposition, particularly in the absence 10 of any evidence suggesting that Defendant has tried to take advantage of that status.” Hines 11 v. California Pub. Utilities Comm’n, No. C-07-4145 CW (EMC), 2009 WL 3621878, at *1 12 (N.D. Cal. Oct. 29, 2009). Additionally, given the Court’s finding that Plaintiff is a key 13 witness in this case, Defendants should not be limited by Plaintiff’s written statements. See 14 id. 15 The Court reminds Plaintiff that he must comply with court orders. The wide latitude 16 granted to a pro se plaintiffs does not excuse intentional noncompliance with discovery 17 rules and court orders. Plaintiff is warned that failure to comply with court orders or follow 18 procedural rules may justify dismissal of this action. Ghazali v. Moran, 46 F.3d 52, 53–54 19 (9th Cir. 1995) (per curiam) (failure of pro se litigant to follow procedural rules justified 20 dismissal of civil rights action); see also Gordon v. Cnty. of Alameda, No. CV 06-2997- 21 SBA, 2007 WL 1750207, at *5 (N.D. Cal. June 15, 2007) (“[P]ro se plaintiffs must abide 22 by the rules of discovery, and when they fail to do so in bad faith dismissal is warranted.”). 23 /// 24 /// 25 /// 26 /// 27 /// 28 /// 1 CONCLUSION 2 For the reasons stated above, the Court OVERRULES Plaintiff's objections to 3 || Magistrate Judge Crawford’s Order. Magistrate Judge Crawford’s Order is neither clearly 4 || erroneous nor contrary to law. 5 IT IS SO ORDERED. 6 ||Dated: October 8, 2021 . tt 7 jen Janis L. Sammartino g United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 6