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Floyd Eugene Bender v. Plaintiff Cannedy

May 23, 2011

FLOYD EUGENE BENDER,
PLAINTIFF,
v.
PLAINTIFF CANNEDY, ET AL., DEFENDANTS.



ORDER GRANTING MOTION TO COMPEL AND ORDERING SANCTIONS AGAINST DISPOSITIVE MOTIONS DEADLINE EXTENDED (ECF No. 38)

ORDER

I. PROCEDURAL HISTORY

Plaintiff Floyd Eugene Bender ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this action on March 30, 2009. (ECF No. 1.) Upon screening Plaintiff's Complaint, the Court found it stated cognizable claims only against Defendants Robert and Cannedy for Eighth Amendment violations. (ECF No. 9.) Plaintiff was given the option of either attempting to cure the deficiencies noted in the Screening Order by filing an amended complaint, or notifying the Court of his willingness to proceed on the claims against Robert and Cannedy.

(Id.) Plaintiff notified the Court of his willingness to proceed on cognizable claims against Robert and Cannedy on October 13, 2009. (ECF No. 11.)

Pending before the Court now is Defendants' Motion to Compel filed February 24, 2011. (ECF No. 38.) Plaintiff filed his Opposition on March 14, 2011. (ECF No. 39.)

II. BACKGROUND

Defendants were originally scheduled to take Plaintiff's deposition on December 9, 2010. (ECF No. 29.) However, it was cancelled due to Plaintiff being transferred to a different facility. Defendants attempted to reschedule, but were unable to do so for considerations outside of their control. (ECF No. 36.)

Finally, Plaintiff's deposition was scheduled to be taken, via video conference, February 18, 2011*fn1 . (ECF No. 38-1, p. 4.) Two correctional officers came to Plaintiff's cell to escort him to his deposition. Plaintiff, who had recently been classified as an Inmate Exhibitionist ("IEX"), refused to put on the IEX jumpsuit as required stating that he did not want to wear the special jump suit*fn2 and that the deposition could easily be rescheduled. (ECF No. 38-1, p. 11-12, 14-15.) Thus, the deposition did not occur.

III. DISCUSSION

Defendants now seek an order compelling Plaintiff's deposition and monetary sanctions in the amount of $302.50, which represents the costs incurred to compensate the court reporter. (ECF 38-1, p. 9.) They further seek to have the filing deadline for dispositive motions rescheduled to 45 days after Plaintiff's deposition is completed.

Defendants state that Plaintiff was properly served and noticed for his deposition, and that his lack of attendance was without justification. Defendants also state that Plaintiff was aware of the difficulties of scheduling the deposition as he had received all filings. Defendants further urge that Plaintiff's actions have prejudiced their attempt to secure a timely resolution of this action.

In response to Defendants' Motion to Compel, Plaintiff filed a pleading titled "Notice of a New Deposition and to Dismiss the Motion to Compel and a Monetary Sanction of 302.50 and a Request for Defendants Summary Judgment." (ECF No. 39.) Plaintiff claims that, on February 18, 2011, he was denied access to and participation in his deposition. In opposition to Defendants' claim that he was without justification for his actions, Plaintiff states that he had justification. Plaintiff claims that he refused to wear the special jump suit because the correctional officers did not have a general chrono requiring him to do so. Plaintiff claims that the general chrono was not produced until after February 18, 2011, and was then backdated to before his scheduled deposition.

Plaintiff asks that Defendants accept a written deposition instead of rescheduling the oral deposition. His written deposition is attached to his ...


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