Free Order on Appeal of Magistrate Judge Decision to District Court - District Court of Colorado - Colorado

Case 1:01-cv-02299-PSF-BNB

Document 282

Filed 05/23/2006

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Judge Phillip S. Figa Civil Action No. 01-cv-02299-PSF-BNB F. DAVID SLUSHER Plaintiff, v. JOHN W. SUTHERS, JOSEPH T. McGARRY, DONALD R. LAWSON, FRANK E. RUYBALID, EDD C. GILLESPIE, JUDY JO BULLARD, TEDDY LAMAR LAURENCE, PHYLLIS P. GRISWOULD, MR. DELAYNE TORNOWSKI, JIM DAY, TAMI WILLIAMS, RICHARD E. HOWARD, and TREVOR WILLIAMS, Defendants.

ORDER ON PLAINTIFF' APPEAL FROM ORDER OF MAGISTRATE JUDGE S ENTERED ON APRIL 19, 2006

This matter comes before the Court on this pro se plaintiff' appeal (Dkt. # 275), s filed May 1, 2006, from the Order of the Magistrate Judge entered on April 19, 2006, (Dkt. # 272) denying plaintiff' Motion in Limine to Exclude Deposition (Dkt. # 254), filed s December 15, 2005. For the reasons set forth below, the appeal is DENIED and the order of the Magistrate Judge is affirmed. On December 15, 2005, this pro se plaintiff, an inmate at a state correctional facility, filed a motion seeking to exclude form all use in this case a deposition given by him to defendants on June 9, 2004 (Dkt. # 254). The sole basis for plaintiff' motion to s

Case 1:01-cv-02299-PSF-BNB

Document 282

Filed 05/23/2006

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exclude the deposition is plaintiff' assertion that the defendants did not obtain " s leave of court"to take the deposition, which plaintiff asserts is required under Rule 30(a)(2), F.R.Civ.P., because plaintiff was a person confined in prison at the time of the deposition. There is no certificate of service attached to the Motion to Exclude as it appears on the Court' electronic filing system. No response to the motion was filed by the s defendants. On April 19, 2006, the Magistrate Judge entered an order denying the plaintiff' Motion to Exclude solely on the grounds that the motion does not contain a s certificate of service and proof of service on the defendants was not shown (Dkt. # 272). Plaintiff' appeal contains an affidavit by plaintiff attesting to the fact that service s of the Motion to Exclude was made on December 13, 2005, to which is attached a copy of what plaintiff claims to be the certificate of service that he attached to the motion (see Attachment 2 to Plaintiff' appeal). The Court notes that the dates on the motion s and the purported certificate of service correspond. Accordingly, the Court accepts plaintiff' representation that the Motion to Exclude was served on defendants, or at s least he attached a certificate of service so stating. Nonetheless, the Court affirms the order of the Magistrate Judge. In his motion to exclude, plaintiff recites that he objected to giving the deposition at the " start of the deposition"but nonetheless provided testimony. Moreover, the Court notes that the court file does not indicate that plaintiff ever filed a motion for protective order against the deposition being taken, as he could have done under Rule 26(c), F.R.Civ.P. Plaintiff is correct that Ashby v. McKenna, 331 F. 3d 1148, 1150 (10th Cir. 2003) states that " plain language of Rule 30(a) requires ` the leave of court' when the 2

Case 1:01-cv-02299-PSF-BNB

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Filed 05/23/2006

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deponent is confined in prison. There is no exception for a prisoner plaintiff [even in a civil rights suit]." However, the case also states that in the absence of leave of court, the prisoner plaintiff is " within his rights"under the rule in refusing to be deposed without court order. Id. Here, Plaintiff Slusher did not refuse to provide the deposition testimony to counsel on June 9, 2004, even though under Ashby he had the right to do so, and if he had, this Court would not be permitted to sanction plaintiff as occurred in Ashby. Even as a pro se litigant, plaintiff is obliged to know his rights and prerogatives under the Federal Rules of Civil Procedure. Cf. Bradenburg v. Beaman, 632 F.2d 120, 122 (10th Cir. 1980), cert. denied 450 U.S. 984 (1981). By willingly providing the deposition plaintiff waived his rights to the procedural protection of a court ordered deposition; and this is to plaintiff' credit, since there would have been no reason for not permitting a s deposition to be taken in this case. Moreover, plaintiff shows no prejudice from the taking of his own deposition. Accordingly, for the reasons set forth above, plaintiff' appeal from the order of s the Magistrate Judge (Dkt. # 275) is DENIED, and plaintiff' Motion to Exclude s Deposition (Dkt. # 254) is DENIED. DATED: May 22, 2006 BY THE COURT: s/ Phillip S. Figa _______________________ Phillip S. Figa United States District Judge

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