United States District Court, E.D. California
ORDER (1) DENYING WITHOUT PREJUDICE PLAINTIFF'S MOTIONS FOR DISCOVERY SUBPOENA AND APPOINTMENT OF COUNSEL, and (2) GRANTING PLAINTIFF THIRTY DAYS TO MAKE REQUISITE SHOWING REGARDING DEPOSITION SUBPOENA (ECF No. 44)
MICHAEL J. SENG, Magistrate Judge.
Plaintiff Kenneth Schultz, a state prisoner incarcerated at Corcoran State Prison (CSP), is proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This matter proceeds on a claim of medical indifference against Defendant Kim M.D.
I. PROCEDURAL BACKGROUND
Plaintiff seeks discovery from an alleged percipient witness, Ms. Lawrence, who he asserts was a CSP medical staff member at times relevant to his case.. Defendant objected to Plaintiff's August 6, 2013 Request for Production of Documents and Witness Acknowledgement of Statements on grounds it was not directed to a proper responding party. Plaintiff did not move to compel a further response.
Defendant objected to Plaintiff's February 7, 2014 Request for Witness Deposition on Written Interrogatories on the above ground and because there is no authority for such discovery. Plaintiff did not move to compel a further response.
Before the Court is Plaintiff's motion seeking (1) a deposition subpoena to compel Ms. Lawrence to respond to written interrogatories, and (2) appointment of counsel. Defendant filed opposition. Plaintiff replied to the opposition.
The deadline to complete discovery was April 1, 2014.
A. Discovery Subpoena
Subject to certain requirements, a pro se plaintiff proceeding in forma pauperis is entitled to issuance of a subpoena to depose a nonparty, Fed.R.Civ.P. 45, and to service of the subpoena by the United States Marshal. 28 U.S.C. § 1915(d). However, the Court will consider granting such a request only if the information sought is not equally available to the plaintiff and is not obtainable from the defendant by deposition by written questions. Fed.R.Civ.P. 31. Here Plaintiff seeks testimony of a percipient witness who allegedly participated in the administrative appeal which underlies Plaintiff's claim. As noted, Plaintiff requested this discovery from Defendant who objected apparently in part on the ground that the discovery request must be directed to the non-party witness, Ms. Lawrence, rather than to Defendant Kim. Defendant argues, correctly, that the Rules do not require him to take the deposition of Ms. Lawrence or to schedule it for Plaintiff.
There are procedures for a party to depose a witness via written questions. Such a deposition must be conducted in compliance with Rule 31 of the Federal Rules of Civil Procedure. Among other things, unless the parties stipulate otherwise, the party noticing the deposition is required to provide the questions to an "officer, " as that term is defined in Rule 28(a), who will take the deponent's responses to the questions, certify them, and send them to the noticing party. Fed.R.Civ.P. 31(b); Fed.R.Civ.P. 30(b)(5).
There also are procedures for a party to depose a witness via oral questions at deposition and for compelling the witness to attend by subpoena. Fed.R.Civ.P. 30(a)(1); Fed.R.Civ.P. 45.
The Court will direct the Clerk's Office to send Plaintiff a copy of Rules 30, 31 and 45. If, after reviewing the Rules, Plaintiff believes he is able to locate and depose Ms. Lawrence in compliance with the Rules, Plaintiff shall notify the Court within thirty days and make a showing, under penalty of perjury, that he is able and willing to retain and compensate an officer to take written or oral responses and prepare the record. Fed.R.Civ.P. 31(b). At that ...