Burton v. Clark et al
Filing
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ORDER Denying Plaintiff's Motions 44 , 45 , 46 , signed by Magistrate Judge Dennis L. Beck on 11/2/11. (Verduzco, M)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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ERIC WILTON BURTON,
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Plaintiff,
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CASE NO. 1:09-CV-00061-AWI-DLB PC
ORDER DENYING PLAINTIFF’S MOTIONS
v.
(DOCS. 44, 45, 46)
KEN CLARK, et al.,
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Defendants.
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Plaintiff Eric Wilton Burton (“Plaintiff”) is a prisoner in the custody of the California
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Department of Corrections and Rehabilitation. Plaintiff is proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on
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Plaintiff’s first amended complaint against Defendant Ken Clark for violation of the Free
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Exercise Clause of the First Amendment and the Religious Land Use and Institutionalized
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Persons Act of 2000. Pending before the Court are: 1) Plaintiff’s motion to excuse Plaintiff’s
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appearance at a scheduled deposition, filed September 26, 2011; 2) Plaintiff’s motion for
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discovery on Defendant Clark, filed September 26, 2011; and 3) Plaintiff’s motion to compel the
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attendance and examination of a favorable witness, filed September 26, 2011. Defendants filed
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an opposition on October 7, 2011. No reply was timely filed. The matter is submitted pursuant
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to Local Rule 230(l).
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I.
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Motion To Excuse Appearance At Deposition
Plaintiff moves the Court for an order excusing Plaintiff from appearing at a deposition.
Pl.’s Mot. 2-4, Doc. 44. Defendant’s counsel had provided notice to Plaintiff of a scheduled
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deposition on October 14, 2011. Plaintiff contends that he would incriminate himself during the
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deposition. Id. Plaintiff also contends that he would be subject to undue burden, annoyance, and
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oppression. Id. Plaintiff requests appointment of counsel for purposes of his deposition. Id.
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Defendant contends that Plaintiff provides no factual explanation for his speculative and
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conclusory statements. Def.’s Opp’n 2:6-3:23, Doc. 48.
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The Court agrees with Defendant. Plaintiff provides no explanation as to why a
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deposition is unduly burdensome on Plaintiff. Defendant complied with the Court’s discovery
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and scheduling order, which required the deposing party to give notice of at least 14 days prior to
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conducting a deposition. Discovery and Scheduling Order ¶ 4, Doc. 37. Plaintiff provides no
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explanation as to how this deposition will be used against Plaintiff in a criminal proceeding. The
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Court has denied Plaintiff’s previous motions for appointment of counsel on the grounds that
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Plaintiff can adequately represent himself in this action and that there are not exceptional
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circumstances to merit appointment. Plaintiff has not presented exceptional circumstances here.
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Accordingly, Plaintiff’s motion to excuse his appearance at a deposition, filed September 26,
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2011, is DENIED.
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II.
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Motion For Discovery
Plaintiff requests that Defendant’s counsel produce all of his discovery prior to the
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deposition. Pl.’s Mot. 1-2, Doc. 45. Plaintiff cites to no legal argument in support. Defendant
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contends that there is no legal basis for Plaintiff’s motion. Def.’s Opp’n 3:25-4:3. The Court
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agrees with Defendant. Plaintiff is not required to receive any of Defendant’s discovery
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materials at this stage in the proceeding. Accordingly, Plaintiff’s motion for Defendant’s
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discovery, filed September 26, 2011, is DENIED.
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III.
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Motion To Compel Attendance of Material Witness
Plaintiff moves for an order compelling the appearance of rabbi Hilda Abrevaya at
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Plaintiff’s deposition on October 14, 2011. Pl.’s Mot. 2-3, Doc. 46. Plaintiff contends that
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Rabbi Abrevaya will support Plaintiff’s claims in his action. Id. Defendant contends that there is
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no statutory authority for Plaintiff’s motion. Def.’s Opp’n 4:6-9. Defendant contends that if
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Plaintiff wishes to depose the rabbi, he should subpoena her and pay for the expenses of the
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deposition. Id.
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The Court agrees with Defendant. There is no statutory authority for Plaintiff’s motion.
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The expenditure of public funds on behalf of an indigent litigant is proper only when authorized
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by Congress. Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam). If Plaintiff
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wishes to depose rabbi Abrevaya, he must subpoena her and bear the costs. Fed. R. Civ. P. 30,
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45. Accordingly, Plaintiff’s motion to compel the attendance of a material witness, filed
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September 26, 2011, is DENIED.
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IT IS SO ORDERED.
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Dated:
3b142a
November 2, 2011
/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE
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