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Picozzi v. Clark County Detention Center

United States District Court, D. Nevada

March 15, 2017

MARK PICOZZI, Plaintiff,

          ORDER (MOT. COPY DEPO. - ECF NO. 56; MOT. JANE DOE #1 - ECF NO. 58; MOT. DKT. SHEET - ECF NO. 65)


         This matter is before the court on Plaintiff Mark Picozzi's Motion for Copy of Deposition (ECF No. 56); Motion to Name Jane Doe #1 as Nurse Amanda Vertner (ECF No. 58), and Motion Get Docket Sheet (ECF No. 65). These Motions are referred to the undersigned pursuant to 28 U.S.C. § 636(b)(1)(A) and LR IB 1-3 of the Local Rules of Practice.


         Mr. Picozzi is a pro se prisoner currently in the custody of the Nevada Department of Corrections. He has received permission to proceed in this case in forma pauperis (“IFP”) pursuant to 28 U.S.C. § 1915 and LSR 1-1 of the Local Rules of Practice. See IFP Application (ECF No. 3); Screening Order (ECF No. 15). This case arises from Picozzi's allegations, pursuant to 28 U.S.C. § 1983, regarding his treatment while he was incarcerated at the Clark County Detention Center (“CCDC”). Upon review of the Amended Complaint (ECF No. 14), the court issued a Screening Order (ECF No. 15) finding that Picozzi stated the following plausible claims: (1) Eighth Amendment claim of excessive force against Defendants Sergeant Judd and Officer Garcia, as well as John Doe correctional officers #1 and #2; (2) Eighth Amendment claim of deliberate indifference to a serious medical need against Defendant Officer Hightower and Nurse Jane Doe #1; (3) Fourteenth Amendment claim of violation of access to the courts against Defendant Officers Hightower, Daos, Goins, Hans, Brooks, Phillips, Carr, Jolley, and Coker, as well as John Doe correctional officers #4 and #5; and (4) First Amendment claim of interference with his right to legal correspondence against Defendant Razzo and John Doe CCDC mail room officer. Id. at 14. By acknowledging that his claims implicate doe defendants, Mr. Picozzi was given an opportunity through discovery to identify the unknown defendants. Id. at 14 n.6-9.


         I. Motion for Copy of Deposition

         Picozzi asks the court to order defense counsel to provide him with a transcript of his deposition testimony, which was taken on October 28, 2016, at High Desert State Prison. He states that counsel informed him that he would need a court order to obtain the transcript. Picozzi asserts that he is entitled to a copy pursuant to the “Discovery Rule” of the Federal Rules of Civil Procedure. Mot. (ECF No. 56). In their Response (ECF No. 63), Defendants Sergeant Judd, Corrections Officers Hightower, Daos, Goins, Hans, Brooks, Phillips, and Coker (“CCDC defendants”) argue that there is no legal basis upon which Defendants should be forced to provide him with a deposition transcript. Counsel advised Picozzi at his deposition that he would be required to pay for a copy of the transcript. Additionally, the court reporter asked counsel for the CCDC defendants not to provide a transcript to Picozzi since he did not order a copy for himself. See Resp. Ex. B (ECF No. 63-2). Picozzi did not file a reply and the deadline to do so has expired.

         The Supreme Court has held that an inmate's constitutional right of access to courts does not impose “an affirmative obligation on the states to finance and support prisoner litigation.” Lewis v. Casey, 518 U.S. 343, 384 (1996). Nothing in the Federal Rules of Civil Procedure or Ninth Circuit case authority require defendants or the courts to finance or subsidize fees and costs associated with prosecuting a civil action. See, e.g., Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (finding that “28 U.S.C. § 1915, the in forma pauperis statute, does not waive payment of fees or expenses for witnesses”) (citing Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989)).

         The discovery provisions of the Federal Rules do not entitle a plaintiff to a free copy of his deposition transcript. See, e.g., Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (finding that the in forma pauperis statute does not provide “for the payment by the government of the costs of deposition transcripts, or any other litigation expenses”); Rivera v. DiSabato, 962 F.Supp. 38, 40 (D.N.J. 1997); Tajeddini v. Gluch, 942 F.Supp. 772, 782 (D. Conn. 1996). Rule 30 states that a court reporter must furnish a copy of a deposition transcript or recording to any party or the deponent when he or she is “paid reasonable charges.” Fed.R.Civ.P. 30(f)(3) (emphasis added). Rule 30 does not contain a provision entitling an indigent litigant, to free transcripts of a deposition. Thus, if a plaintiff wishes to obtain a copy for his own records, he must pay for it.

         Here, Picozzi has not cited to any specific statute or Rule authorizing the court to shift the transcript fee to the CCDC defendants. Picozzi seeks the transcript of his own deposition. Because he was deposed and answered the questions posed during that deposition he has within personal knowledge of the questions asked and his own responses. See Rivera, 962 F.Supp. at 41. Thus, his own notes and personal knowledge should be sufficient to assist him in prosecuting his case. The motion is denied.

         II. Motion to Name Jane Doe #1 as Nurse Amanda Vertner

         In a previous motion, Mr. Picozzi requested that an order for service include “Nurse Amanda.” See Mot. for Order to Serve (ECF No. 44). However, the motion did not indicate whether Nurse Amanda is Nurse Jane Doe #1 or a different doe defendant. The court therefore instructed him that, if he “wants to substitute Nurse Amanda for Jane Doe nurse #1, or some other Doe defendant, he must file a notice with the court stating which doe defendant he is substituting with Nurse Amanda.” See Nov. 2, 2016 Order (ECF No. 55) at 7.

         Rather than filing a notice, Picozzi filed a motion to notify the court that Nurse Jane Doe #1 is Nurse Amanda Vertner and asking for an order directing the U.S. Marshals Service (“USM”) to serve Vertner. Accordingly, Nurse Amanda Vertner will be substituted in place of Nurse Jane Doe #1. However, this substitution is limited to the claim alleged in the Amended Complaint (ECF No. 14) and found colorable in the Screening Order (ECF No. 15). The court previously informed Picozzi:

The notice must identify each and every instance in which Yosemite Sam was the person referred to as John Doe #1. If the notice fails to identify and attribute any particular allegation to Yosemite Sam, the notice will not be effective and will not substitute Yosemite Sam in place of John Doe #1 for that specific allegation. However, a plaintiff must file a motion amend the operative complaint, instead ...

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