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Buckley v. Alameida

July 2, 2009

ANTONIO CORTEZ BUCKLEY, PLAINTIFF,
v.
EDWARD ALAMEIDA, JR., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Gary S. Austin United States Magistrate Judge

ORDER DENYING PLAINTIFF'S MOTION FOR HEARING ON MOTION TO COMPEL AND FOR SANCTIONS

(Doc. 96)

ORDER GRANTING DEFENDANTS' MOTION TO COMPEL DEPOSITION AND DENYING DEFENDANTS' MOTION FOR SANCTIONS, AND REQUIRING DEFENDANTS TO FILE NOTICE OF COSTS WITHIN THIRTY DAYS

(Doc. 92)

ORDER GRANTING PLAINTIFF'S MOTION FOR MODIFICATION OF SCHEDULING ORDER, AND DIRECTING CLERK'S OFFICE TO RE-SERVE DOCS. 65 AND 84 AND PROVIDE PLAINTIFF WITH COPY OF DOCKET

(Doc. 91)

Amended Discovery Deadline: 12/08/2009 Amended Motion Deadline: 03/08/2010

Plaintiff Antonio Cortez Buckley is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983 and 42 U.S.C. § 2000cc-1 (the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA")). Pursuant to the scheduling order filed on September 24, 2008, the deadline for the completion of discovery was April 1, 2009, and the deadline to file pretrial dispositive motions was June 1, 2009. Pending before the Court are Plaintiff's motion to vacate the scheduling order, Defendants' motion to compel Plaintiff's deposition and for sanctions, and Plaintiff's motion for a hearing on Defendants' motion to compel.

I. Motion to Compel and for Sanctions

Pursuant to their motion filed on April 1, 2009, Defendants seeks an order compelling Plaintiff's deposition and monetary sanctions in the amount of $2,680.00. Plaintiff filed an opposition to the motion on April 27, 2009, and Defendants filed a reply on May 8, 2009. On May 22, 2009, Plaintiff filed a motion seeking a hearing on the pending motion.

Based on a review of the record, the Court does not find a hearing to be necessary, and Plaintiff's motion is denied. Local Rule 78-230(m).

The parties agree on the following facts. Defendants noticed Plaintiff's deposition via video conference for March 19, 2009. (Doc. 92-4, Motion to Compel, Ex. C.) After receiving notice of the deposition, Plaintiff wrote Defendants' counsel a letter objecting to the taking of his deposition by video conference, and stating that it should be taken in person in a visiting room with only Plaintiff, counsel, and the court reporter present. (Id., Ex. D.) Plaintiff did not want correctional staff present in the room, claiming that he was being harassed and threatened, and retaliated against for his litigation activities. (Id.) Defendants' counsel responded in writing to Plaintiff, stating that his objections were without merit and warning him that if he failed to appear or answer questions, she would seek appropriate sanctions. (Id., Ex. E.) The deposition commenced on March 19, 2009, and Plaintiff refused to answer questions relating to this case, resulting in termination of the deposition. (Id.)

Plaintiff advances two arguments in support of his failure to answer questions at his deposition. Plaintiff contends that he was not served with the scheduling order filed on September 24, 2008, and that Defendants' counsel refuses to answer his discovery requests dated March 18, 2009, and March 19, 2009.

Neither argument justifies Plaintiff's failure to cooperate at his deposition. Objections to the taking of a deposition or questions over the entitlement to take a deposition must be raised by Plaintiff in a motion for a protective order. Fed. R. Civ. P. 26(c). Because Plaintiff failed to seek a protective order from the Court and refused to answer questions at his deposition, ...


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