United States District Court, E.D. California
DEBORAH BARNES UNITED STATES MAGISTRATE JUDGE
is a state prisoner proceeding pro se and in forma pauperis
with an action under 42 U.S.C. § 1983. Plaintiff alleges
defendants subjected him to excessive force and involuntarily
medicated him. Before the court is plaintiff's motion to
take depositions by written questions. For the reasons set
forth below, the court will deny the motion.
TO TAKE DEPOSITIONS BY WRITTEN QUESTIONS
moves to take the depositions of two inmates, Avila and
Riles, and one parolee, Sawyer, by written questions. (ECF
No. 36.) He states Avila and Sawyer were in the cells
adjoining his and saw the “assembly” of twenty
“psych-techs” gathered outside plaintiff's
cell and their “breach” into it. (Plt.'s
Decl. (ECF No. 36 at 3).) In addition, they “heard the
commotion that took place inside the cell.” Plaintiff
states that inmate Riles was a few cells down but saw the
events through a mirrored reflection from a window across
from his cell. (Id.) He states that Riles saw the
“assembly” and saw the aggressive stances taken
by three psych-techs upon entering his cell. Defendants
oppose the motion. (ECF No. 39.) They argue that plaintiff
fails to meet the requirements of Federal Rule of Civil
Procedure 31 for depositions by written questions.
by written questions must be taken pursuant to the procedures
set forth under Federal Rule of Civil Procedure 31.
The deposition upon written questions basically would work as
follows: The prisoner would send out a notice of deposition
that identifies (a) the deponent (i.e., the witness), (b) the
officer taking 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 defendant would have
time to send to the prisoner written cross-examination
questions for the witness, the prisoner would then have time
to send to defendant written re-direct questions for the
witness, and the defendant would have time to send to the
prisoner written re-cross-examination questions for the
Harrell v. Jail, No. 2:14-cv-1690 TLN CKD P, 2015 WL
8539037, *1-2 (E.D. Cal. Dec. 11, 2015) (quoting Brady v.
Fishback, No. 1:06-cv-0136 ALA (P), 2008 WL 1925242, at
*1-2 (E.D. Cal. Apr. 30, 2008)). Plaintiff's in forma
pauperis status also does not entitle him to a waiver of any
of the costs associated with this form of deposition;
instead, he must pay the necessary deposition officer fee,
court reporter fee, and costs for a transcript. Id.
plaintiff seeks to depose an incarcerated person, he must
seek court permission. Fed.R.Civ.P. 31(a)(2)(B). However,
permission is not required to depose any other person.
Therefore, the court initially notes that this motion is not
necessary for plaintiff to depose parolee Sawyer. However,
plaintiff must follow the applicable rule and bear the costs
for any depositions he seeks to take in this matter, as
described above. His in forma pauperis status does not
entitle him to free services from the court, such as
scheduling, conducting, or recording the deposition, or to
utilize defendants' resources for the deposition.
See, e.g., Brooks v. Tate, No.
1:11-cv-01503-AWI-DLB PC, 2013 WL 4049053, *1 (E.D. Cal. Aug.
7, 2013) (indigent prisoner not entitled to take the
depositions of defendant and non-party witnesses during his
respect to the two incarcerated witnesses, Avila and Riles,
plaintiff fails to make the showing required. First,
plaintiff has not designated a deposition officer or notified
the deponents of the time, place and manner of deposition.
Second, plaintiff has not shown he can pay any of the costs
associated with written depositions, including fees for a
deposition officer and court reporter, the cost of
transcribing the deposition, and witness fees and mileage
under Rule 45(b)(1).
have found a failure to make these showings defeats a motion
to take depositions. See Harrell, 2015 WL 8539037,
at *2; Jackson v. Woodford, No. 05cv0513-L(NLS),
2007 WL 2580566, at *1 (S.D. Cal. Aug. 17, 2007). As one
court has observed: “If plaintiff wants to depose [a
witness] on written questions, plaintiff needs to set up such
a deposition, arrange for a court reporter and arrange for
the attendance of the witness. It is not defendant's
obligation or the court's obligation to do so.”
Lopez v. Horel, No. C 06-4772 SI (pr), 2007 WL
2177460, at *2 (N.D. Cal. July 27, 2007), aff'd,
367 Fed.Appx. 810 (9th Cir. 2010). The court further noted
that a Rule 31 deposition “may sound like an
inexpensive way for a prisoner to do discovery but usually is
not.” Id. at *2, n.2. Because plaintiff's
indigent status does not entitle him to a waiver of fees and
he has not met the Rule 31 requirements, the court will deny
court notes that plaintiff appears to be attempting to gather
evidence for purposes of trial. Plaintiff is advised that he
need not take depositions in order to obtain statements from
witnesses. As set out in the court's Discovery and
Scheduling Order filed on November 6, 2017, if this case
proceeds to trial, plaintiff may seek to have witnesses
attend. (ECF No. 28.) In support of his motion to have
witnesses attend trial, plaintiff may provide the court with
either a sworn affidavit from the witnesses or his own sworn
affidavit showing that the witnesses have actual knowledge of
relevant facts. However, those motions would be appropriate
at a later time. Because trial has not been scheduled in this
matter, any motions for the attendance of witnesses at trial
would be premature.
foregoing reasons, IT IS HEREBY ORDERED that plaintiffs
motion to depose witnesses by written ...