Wallace Ward, Plaintiff-appellant, v. Jon Dobre, Warden, Defendant-appellee, 141 F.3d 1182 (9th Cir. 1998)

MEMORANDUM^* 

Wallace Ward, a federal prisoner, appeals pro se the district court's denial of his motion to perpetuate testimony filed pursuant to Fed. R. Civ. P. 27(b) and Fed. R. Civ. P. 27(c). We have jurisdiction under 28 U.S.C. § 1291. We review the district court's decision for an abuse of discretion, see Campbell v. Blodgett, 982 F.2d 1356, 1358 (9th Cir. 1993), and we affirm.

Ward contends that the district court abused its discretion by denying his motion to perpetuate testimony. We disagree.

The district court may permit depositions to be taken if the court finds that "the perpetuation of the testimony is proper to avoid a failure or delay of justice." Fed. R. Civ. P. 27(b); See Nevada v. O'Leary, 63 F.3d 932, 937 (9th Cir. 1995) (stating that Fed. R. Civ. P. 27(c) does not expand applicability of Fed. R. Civ. P. 27).

In this case, Ward sought to depose various prison officials in an effort to establish that defendant violated his First Amendment rights when defendant restricted Ward's telephone and visitor access. Because the district court determined that qualified immunity protected defendant, and the determination was not timely challenged by Ward, the district court did not err by concluding that the proposed discovery was not needed to avoid a failure or delay of justice. See Fed. R. Civ. P. 27(b); Fed. R. Civ. P. 27(c).

AFFIRMED.