Free Motion for Leave to File - District Court of Arizona - Arizona

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Terry Goddard Attorney General Michele L. Forney, Bar No. 019775 Assistant Attorney General 1275 W. Washington Phoenix, Arizona 85007-2997 Telephone: (602) 542-4951 Fax: (602) 542-7670 E-mail: [email protected] Attorneys for Defendants

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Case 2:03-cv-02159-ROS-JRI Document 128-2 Filed 03/13/2008 Page 1 of 4

Timothy Lee Ward, No. CV 03-2159 PHX ROS (JRI) Plaintiff, v. Sgt. Carr, et al., Defendants. DEFENDANTS' RESPONSE TO PLAINTIFF'S MOTION FOR LEAVE TO TAKE DEFENDANT CARR'S DEPOSITION [DKT. 116] AND MOTION FOR LEAVE TO TAKE DEFENDANT STEWART'S DEPOSITION [DKT. 119]

Defendants Carr and Stewart respond in opposition to Plaintiff's Motion for Leave to Take Defendant Carr's Deposition/Motion to Appoint Court Reporter [Dkt. 116] and Motion for Leave to Take Defendant Stewart's Deposition/Motion to Appoint Court Reporter [Dkt. 119]. I. Introduction In Count I, Plaintiff alleges that Defendant Terry Carr, a sergeant at ASPCEyman/Rynning Unit, fired him from his job after learning that he was a homosexual and informed him that he was to be moved to another yard so that an "unauthorized relationship" would not develop. Plaintiff also alleges that Defendant Carr put him on lockdown without explanation. He claims that his firing and subsequent placement in lockdown was because of his sexual preference in violation of his due process and equal protection rights.

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In Count II, Plaintiff alleges that Defendant Robert Stewart, deputy warden at ASPCEyman/Rynning Unit, documented that Plaintiff threatened to use a shank on two prison officials. Plaintiff alleges that he was placed in lockdown for 6 months without any hearing or any type of disciplinary action. He also alleges that another inmate, who is not a homosexual, was found guilty of the same charge but was not similarly placed in lockdown. In this claim, Plaintiff also alleges that his due process and equal protection rights were violated. In his current Motions, Plaintiff requests that he be permitted to conduct a deposition of Defendants because he is dissatisfied with their responses to his interrogatories. II. Argument A. Plaintiff Fails to Make a Showing of Exceptional Circumstances.

The Court states in its Order filed June 15, 2006 (C.D. 25): "Because of the logistical problems involved, self-represented incarcerated parties may not take depositions without prior Court permission. Such permission will not be granted except upon a showing of exceptional circumstances." Plaintiff fails to make a showing of exceptional circumstances. Plaintiff merely

17 argues that depositions of the Defendants are necessary because he is unhappy with the 18 Defendants' discovery responses. Plaintiff fails to assert any other reason(s) requiring 19 the deposition of the Defendants. 20 B. 21 22 23 24 25 26 27 28
Case 2:03-cv-02159-ROS-JRI

Plaintiff Must Comply With Rule 30(b), Federal Rules of Civil Procedure.

Federal Rule of Civil Procedure 30(b)(2) requires that the party taking the deposition bear the cost of that deposition, and Federal Rule of Civil Procedure 30(b)(4) requires that, unless agreed to by the parties, a deposition shall be conducted before an officer appointed or designated under Rule 28. Plaintiff asserts that he is unable to pay for the cost of a court reporter but would do so over time. However, he cites no legal basis for such relief. 2
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Defendants' counsel objects to the Attorney General's office paying for a court reporter's time and, more importantly, copies of the transcripts. Further, providing Plaintiff with a free copy of the deposition transcripts will deprive a court reporter of his/her fee. Plaintiff informally requested undersigned counsel's agreement to tape recording the depositions rather than appointing a court reporter. Pursuant to ADC Department Order 909, inmates are not permitted to possess tape recorders with recording capabilities. Therefore, Plaintiff will not be permitted to take the depositions by audiotape as this violates ADC policy. Even if Plaintiff was permitted to tape record these depositions, he has provided no information regarding his proposed plan to ensure accurate transcriptions. III. Conclusion Plaintiff fails to make a showing of exceptional circumstances requiring him to depose each Defendant. Plaintiff also fails to demonstrate any legal basis for ordering a court reporter to accept delayed payment for conducting the proposed depositions and for the transcripts. In the absence of a court reporter, Plaintiff fails to demonstrate how tape-recording the depositions and transcribing the tape-recording will be both accurate and trustworthy. As a result, Defendants request that Plaintiff's Motions be denied. RESPECTFULLY SUBMITTED this 13th day of March, 2008. Terry Goddard Attorney General

s/Michele L. Forney Michele L. Forney Assistant Attorney General Attorneys for Defendants

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Case 2:03-cv-02159-ROS-JRI

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Original e-filed this 13th day of March, 2008, with: Clerk of the Court United States District Court District of Arizona 401 West Washington Street, SPC 1 Phoenix, AZ 85003-2118 Copy mailed the same date to: Timothy Lee Ward, #148256 ASPC - Florence - South Unit P.O. Box 8400 Florence, AZ 85232

s/Colleen S. Jordan Secretary to: Michele L. Forney IDS04-0306/RSK:G04-20640 #165631

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Case 2:03-cv-02159-ROS-JRI