Haymes v. Smith

73 F.R.D. 572, 1976 U.S. Dist. LEXIS 11768
CourtDistrict Court, W.D. New York
DecidedDecember 20, 1976
DocketNo. Civ-74-221
StatusPublished
Cited by89 cases

This text of 73 F.R.D. 572 (Haymes v. Smith) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Haymes v. Smith, 73 F.R.D. 572, 1976 U.S. Dist. LEXIS 11768 (W.D.N.Y. 1976).

Opinion

CURTIN, Chief Judge.

This is the most recent in a series of motions brought by plaintiffs in their efforts to obtain discovery in this action [574]*574which asserts the rights of inmates to organize for collective action within a correctional institution and which challenges the validity of procedures followed relative to transfers of plaintiff Rodney Haymes, allegedly for his participation in such organizing activities. The discovery process has been extended over a very lengthy period, having been initiated by plaintiffs in July 1974.

With the court’s approval, counsel for the parties have agreed that plaintiffs will depose defendant Smith at the Attica Correctional Facility, his place of employment, at the convenience of the parties. Plaintiffs will also depose defendant Ward at his place of employment in Albany, New York.

Plaintiffs have now moved the court for an order to compel the defendants to pay the reasonable expenses that would be incurred by plaintiffs in deposing defendant Montanye, who presently resides in Florida. In addition, plaintiffs request a ruling that would permit plaintiffs, in the course of deposing defendant Smith, to inquire into matters which would otherwise be covered by the attorney-client privilege.

It is widely recognized that the district courts can provide for payment in the first instance of the expense of taking depositions (under former Rule 30(b) of the Federal Rules of Civil Procedure and under present Rule 26). See Moore’s Federal Practice, Vol. 4, ¶ 26.77 (1976); Perry v. Edwards, 16 F.R.D. 131 (W.D.Mo.1954). Such a determination as to which party shall pay transportation and related expenses incurred in the course of deposing an individual rests in the court’s sound discretion. Gibson v. International Freighting Corp., 8 F.R.D. 487 (E.D.Pa.1947), aff’d 173 F.2d 591 (3d Cir. 1949). The facts and circumstances of each individual case determine how the court will exercise this discretion. Sowers v. General Motors Corp., 16 F.R.D. 562 (E.D.Pa.1954).

The following factors would suggest that the court should exercise its discretion in favor of the plaintiffs:

(1) On May 7, 1974 I ordered that plaintiff Rodney Haymes be allowed to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(a). The generally recognized rule is that a court may not authorize the commitment of federal funds to underwrite the necessary expenditures of an indigent civil litigant’s action. Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973); Sturdevant v. Deer, 69 F.R.D. 17 (E.D.Wis.1975); Clark v. Hendrix, 397 F.Supp. 966 (N.D.Ga.1975); Ebenhart v. Power, 309 F.Supp. 660 (S.D.N.Y.1969); Diaz v. Chatterton, 229 F.Supp. 19 (S.D.Cal.1964); cf., Allison v. Wilson, 277 F.Supp. 271 (N.D.Cal.1967). The indigent civil litigant is thus usually without adequate resources to finance the costs of prosecuting an action that may have merit. Plaintiffs in this action, consisting of Mr. Haymes and the class of Attica inmates interested in organizing collectively, are such indigent litigants.

(2) Plaintiffs’ counsel, the Monroe County Legal Assistance Corporation, has indicated that it has only $900.00 available annually to pay for court costs (affidavit of May 20, 1976 of David C. Leven, Executive Director). Were plaintiffs’ counsel required to finance the costs of the deposition contemplated here, they would be required to expend approximately one-third of their entire annual court-costs budget in this single action. (Affidavit of May 20,1976 of David W. Beier III, at 4).

It is true, as the Assistant Attorney General has pointed out, that plaintiffs’ counsel has considerable funds available in its general operating fund (in excess of $200,000 annually). However, plaintiffs’ counsel has other cases to attend to and should not be forced to finance this particular lawsuit on behalf of indigent plaintiffs.

(3) It is important that the deposition of Ernest L. Montanye, Assistant Deputy Commissioner of Correctional Services at the time of the alleged organizing efforts and transfers, be taken so that his role during the course of these activities may be clarified. His deposition is necessary to assure that this matter is fully and fairly litigated.

[575]*575(4) As I indicated during the May 7,1976 meeting with counsel, written interrogatories are not an adequate substitute for actual depositions in this matter. Only through oral deposition can counsel explore all of the nuances of defendant Montanye’s actions which are relevant to this litigation.

It is true that the general rule requires that a party seeking to take a deposition must bear the expense associated with taking the deposition. However, this is not the usual case as the suit was initiated by a pro se complaint of an indigent prisoner.

Important first amendment and fourteenth amendment due process and equal protection issues have been raised by plaintiffs’ complaint. While the Supreme Court’s decisions in Meachum v. Fano, 427 U.S. 215, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976), and Montanye v. Haymes, 427 U.S. 236, 96 S.Ct. 2543, 49 L.Ed.2d 466 (1976), may have mooted some of the issues raised by plaintiff Haymes with respect to aspects of the challenged transfers, these decisions are not determinative of other elements of plaintiffs’ action. In Meachum v. Fano, supra, and Montanye v. Haymes, supra, no disciplinary punishment or segregated confinement accompanied the contested transfers. In this action, plaintiff Haymes has alleged that, because of his union-organizing activities, he was placed in solitary confinement upon his arrival at Clinton Correctional Facility on April 18, 1974, without any sort of hearing, and remained so confined during the nine days prior to being transferred to Greenhaven Correctional Facility. See Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

Weighing all of the above factors, I have concluded that the only way to provide for the necessary deposing of defendant Montanye is to require in this instance that defendants bear the costs incident to the deposition. In this regard, I direct that the following actions be taken:

(1) Counsel for defendant Montanye shall contact his client to determine if Mr. Mon-tanye anticipates being in the Western New York area within 120 days of the date of this order. Counsel shall report back to the court within 10 days of this order as to his efforts in this regard. If defendant Monta-nye expects to be in Western New York before March 15, 1977, his deposition may be taken at any time during his stay convenient to all.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Lightfeather v. Green
D. Nebraska, 2025
Garza v. Kleine
D. Nebraska, 2025
Merrival v. Pepin
D. Nebraska, 2025
Jones v. Lopez
D. Nebraska, 2025
Meier v. Long
D. Nebraska, 2025
Lightfeather v. Orada
D. Nebraska, 2024
Lightfeather v. Boyd
D. Nebraska, 2024
Welch v. Byrd
D. Nebraska, 2024
Kimbrough v. Hogan
D. Nebraska, 2024
Welch v. Stecker
D. Nebraska, 2023
Cox v. City of Omaha
D. Nebraska, 2023
Cox v. Board of Parole
D. Nebraska, 2023
El v. Daniels
D. Nebraska, 2023
Aery v. Lewis
D. Minnesota, 2022

Cite This Page — Counsel Stack

Bluebook (online)
73 F.R.D. 572, 1976 U.S. Dist. LEXIS 11768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/haymes-v-smith-nywd-1976.