Brown v. Carr

253 F.R.D. 410, 2008 WL 4414640
CourtDistrict Court, S.D. Texas
DecidedSeptember 23, 2008
DocketC.A. No. C-08-170
StatusPublished
Cited by11 cases

This text of 253 F.R.D. 410 (Brown v. Carr) is published on Counsel Stack Legal Research, covering District Court, S.D. Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brown v. Carr, 253 F.R.D. 410, 2008 WL 4414640 (S.D. Tex. 2008).

Opinion

ORDER

BRIAN L. OWSLEY, United States Magistrate Judge.

This is a civil rights action filed by a state prisoner pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding in this action informa pauperis. Pending is his motion for leave to take depositions by video-teleconference. (D.E. 35). Defendants filed an opposition to the motion. (D.E. 43). Plaintiff filed a reply to defendants’ opposition. (D.E. 45).

Plaintiff is an inmate in the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated at the Estelle Unit in Huntsville, Texas. He filed this action on May 23, 2008, complaining that certain McConnell Unit officers and officials filed a false disciplinary case against him in retaliation for his proceeding to trial in another action, Brown v. Carr, et al., C.A. No. C-04-471 (S.D.Tex.), which also involved three of the defendants named in this action.1 He named as defendants in this ease seven prison officials: Officer Christopher Carr; Major Aurelio Ambriz; Captain Evelyn Castro; Officer J. Brasher; Sergeant Ford; Sergeant Arroyos; and Lieutenant Gallegos. A Spears2 hearing was conducted on June 5, 2008. The following allegations were made in plaintiffs original complaint, or at the hearing.

For the past three years, plaintiffs administrative segregation classification has been S-1, entitling him to certain privileges because he had not received a major disciplinary case since leaving the McConnell Unit some three years prior. From January 18, 2008 through January 31, 2008, plaintiff was temporarily housed at the McConnell Unit because he was the plaintiff in a civil rights action that had proceeded to trial in federal district court, C.A. No. C-04-471. On Friday, January 21, 2008, the jury was still deliberating in C.A. No. C-04-471, and plaintiff was returned to the McConnell Unit that evening.

On Saturday, January 22, 2008, Officer Carr, a former defendant in C-04-471, came to plaintiffs cell, along with a five-man extraction team, and told him that he was being charged with possession of a weapon because a knife had been found in his cell. Officer Carr ordered plaintiff to exit his cell for a strip search. Officer Brasher, who was assigned to plaintiffs floor that day, and Lieutenant Gallegos, the ranking officer, were also present. Plaintiff exited his cell without incident, and complied with the strip search. The officers ordered plaintiff to lift his scrotum, to spread his rear end, to place a finger in his anus, and then immediately to place his fingers in his mouth to show that nothing was secreted in it. Sergeant Arroyos searched plaintiffs cell and confiscated certain legal papers.

At the conclusion of his trial, plaintiff was returned to the Estelle Unit. A month later, at the end of February, plaintiff received a disciplinary case, written by Officer Brasher charging him with possession of a weapon. A hearing was held on the weapons charge at the Estelle Unit in March, and in April, the case was dismissed and plaintiffs classification was restored to S-1.

Plaintiff claims that Officer Carr and Officer Brasher planted the weapon in his cell, and then forced him to submit to the humiliating strip search. He claims that Major Ambriz, Sergeant Ford, and Lieutenant Gallegos falsified documents stating that he had a weapon, and were also present during the search of his person and cell. He claims that Sergeant Arroyos confiscated his legal [412]*412documents in denial of access to the courts. He claims that Captain Castro, as the supervisor of the other officers, participated in the retaliatory actions of her subordinates and superiors.

In his pending motion, plaintiff seeks to depose two third-party witnesses: Ms. Walker, his counsel substitute for the dismissed disciplinary proceeding, and Captain Sirinngi, the disciplinary hearing officer. He is incarcerated in the Estelle Unit located in Huntsville, Texas in administrative segregation.

Plaintiff files this motion pursuant to Rule 30 of the Federal Rules of Civil Procedure. Specifically, Rule 30 states, in pertinent part, that

The parties may stipulate—writing or the court may on motion order—that a deposition be taken by telephone or other remote electronic means. For the purposes of this rule and Rules 28(a), 37(a)(2), and 37(b)(1), the deposition takes place where the deponent answers the questions.

Fed.R.Civ.P. 30(b)(4). The party seeking to take depositions by video-teleconferencing must establish a legitimate reason for its motion. See Brown v. Carr, 236 F.R.D. 311, 312 (S.D.Tex.2006) (citing Cressler v. Neuenschwander, 170 F.R.D. 20, 21 (D.Kan.1996)). Any party opposing such depositions has the burden to establish good cause as to why they should not be conducted in such manner. Brown, 236 F.R.D. at 312 (citations omitted). Generally, leave to take depositions by remote electronic means should be granted liberally. See Jahr v. IU Int’l Corp., 109 F.R.D. 429, 431 (M.D.N.C.1986) (addressing telephonic depositions); see also Robertson v. Vandt, No. 1:03-cv-6070, 2007 WL 404896 (E.D.Cal. Feb.2, 2007) (granting request for a deposition by video-teleconference) (unpublished).

In opposing plaintiffs motion, defendants make five different arguments. First, they argue that “[disclosures have been made that should include any information obtainable through deposition. Plaintiff has the means to request additional documents, in the event that the disclosures do not contain the information he allegedly needs.” (D.E. 43, at 2). The Federal Rules of Civil Procedure afford litigants a variety of means to obtain discovery, including depositions and documents requests. “Production of documents is no substitute for a deposition. Indeed, one function of depositions is to ask questions about various documents and records.” Brown, 236 F.R.D. at 313.

Second, defendants assert that “Plaintiff failed to state what relevant information these individuals could possibly produce as it relates to the remaining claims in the case.” (D.E. 43, at 2). The scope of discovery is governed by the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 26(b)(1). The Fifth Circuit has characterized this scope as broad. Chiasson v. Zapata Gulf Marine Corp., 988 F.2d 513, 515 (5th Cir.1993); Wyatt v. Kaplan, 686 F.2d 276, 283 (5th Cir.1982).

Plaintiff alleges that defendants filed a false disciplinary case against him in violation of his civil rights. The case was ultimately dismissed. Both of the individuals that plaintiff seeks to depose were involved in that disciplinary case.

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253 F.R.D. 410, 2008 WL 4414640, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brown-v-carr-txsd-2008.