United States District Court, E.D. California
ORDER GRANTING DEFENDANTS' MOTION TO COMPEL
PLAINTIFF'S DEPOSITION, AND GRANTING IN PART REQUEST FOR
EXPENSES [ECF NO. 123]
time this action was filed, Plaintiff Gregory Ell Shehee was
a civil detainee proceeding pro se in a civil rights action
pursuant to 42 U.S.C. § 1983.
before the Court is Defendants' motion to compel
Plaintiff's deposition and request for sanctions, filed
April 17, 2018.
action is proceeding on Plaintiff's third amended
complaint and claim of excessive force against Defendants J.
Redding, J. Blanco, K. Peugh, J. Gonzalez, M. Clark, R.
Davis, B. T. Bales, Pamela Ahlin, Audrey King, and Jack
Carter with respect to an incident on January 31, 2011.
filed an answer to the third amended complaint on August 15,
August 17, 2017, the Court issued a discovery and scheduling
previously stated, on April 17, 2018, Defendants filed a
motion to compel Plaintiff's deposition and request for
has not filed an opposition, and Defendants' motion is
therefore deemed submitted for review without oral argument
pursuant to Local Rule 230(1).
to the discovery and scheduling order, Defendants are
entitled to depose Plaintiff so long as they serve, by mail,
a notice in compliance with Rule 30 at least fourteen days
before the deposition. Fed.R.Civ.P. 5(b)(2)(C), 30(b)(1).
(ECF No. 103.) On March 28, 2018, Defendants served Plaintiff
with a notice that his deposition was scheduled for April 12,
2018, at 10:00 a.m. in Fresno, California. Fed.R.Civ.P.
30(b)(1). (Thomas Declaration (Decl.), ¶ 2.) The
deposition notice was mailed to Plaintiff's Fresno Rescue
Mission address on March 28, 2017. (Id., Ex. A.)
However, on April 4, 2018, Plaintiff filed a notice of change
of address listing an address in Lancaster, California. (ECF
No. 122.) Therefore, on April 6, 2018, Defendants sent
Plaintiff a letter delivered by overnight mail to
Plaintiff's new Lancaster address, along with a copy of
the original deposition notice. (Thomas Decl., ¶ 4, Ex.
B.) In the letter, Plaintiff was advised that if for some
reason he could not attend the deposition on April 12, 2018,
to immediately contact defense counsel by telephone to
reschedule. (Id.) According to the mailing service
hired by Defendants to deliver the April 6, 2018 letter, the
letter was delivered to the Lancaster address on April 9,
2018, and accepted and signed for by someone named “S.
herrie.” (Thomas Decl., ¶ 5, Ex. C.)
April 12, 2018, Defendants' counsel drove from Sacramento
to Fresno for the deposition, and arrived at the deposition
service building at approximately 9:30 a.m. and waited until
shortly after 11:00 a.m. for Plaintiff to appear. However,
Plaintiff failed to attend his deposition and he failed to
contact counsel to notify him that he was unavailable.
Counsel therefore noted Plaintiff's non-appearance on the
record with the court reporter. (Thomas Decl. ¶ 7, Ex.
D.) On April 17, 2018, Defendants sent Plaintiff a letter
regarding his failure to attend the deposition and notice of
intent to file the instant motion. (Thomas Decl. ¶ 12,
are entitled to depose Plaintiff, within the parameters of
the Federal Rules of Civil Procedure and orders of the Court.
Fed.R.Civ.P. 30; ECF No. 103, Disc. & Sched. Order. The
Court finds that Defendants have their initial burden as the
party moving for relief. Fed.R.Civ.P. 37(a). Plaintiff failed
to respond to the motion and it is clear he failed to appear