Tripati v. Corizon Inc.

          ORDER

          HONORABLE ROSEMARY MARQUEZ UNITED STATES DISTRICT JUDGE.

         Pending before the Court are numerous miscellaneous motions. The Court addresses below all motions filed in August and September 2019, as well as a Motion to Disqualify the Arizona Attorney General (Doc. 61) that the Court previously took under advisement (see Doc. 100 at 15). Any pending motions filed in or after October 2019 will be resolved separately.

         I. Motion to Disqualify the Arizona Attorney General (Doc. 61)

         Plaintiff moves for an order disqualifying the Arizona Attorney General. He avers that Jonathan Henry Schwartz (“Schwartz”) was his trial and sentencing judge and is currently a member of the Arizona Attorney General's Office. Defendants Daniel Moreno (“Moreno”) and Jose Ramos (“Ramos”) filed a Response, confirming that Assistant Attorney General Schwartz presided over Plaintiff's criminal case when he was a Maricopa County Superior Court Judge. (Doc. 72.) Defendants avow that Schwartz has been screened from this case. (Id.) Defendants later filed a Supplemental Response, asking the Court to deny Plaintiff's Motion and providing a more detailed overview of the applicable law and Defendants' screening of Schwartz. (Doc. 76.)

         Defendants attach to their Supplemental Response a declaration by Assistant Attorney General Paul Carter (“Carter”), who represents Defendants Moreno, Ramos, George Osler (“Osler”) and Glenn Schletter (“Schletter”) in this matter, as well as a declaration by Schwartz. (Doc. 76-1 at 2-4, 6-7.) In his declaration, Carter states that he has been assigned to defend Tripati v. Corizon, CV 13-615-TUC-DCB (“Corizon”) and Tripati v. Osler, CV 18-66-TUC-RM (“Osler”). Immediately upon his receipt of Plaintiff's Motion to Disqualify the Arizona Attorney General's Office, Carter confirmed that Schwartz sentenced Plaintiff to a term of imprisonment in State v. Tripati, CR1992-008576 and CR1992-009620. (Id. at 2.) Upon confirming the conflict, Carter immediately contacted the Attorney General Office's Ethics Counsel, who prepared a screening memorandum to all persons who have or potentially will have information concerning Corizon and Osler. (Id.) The screening memorandum, which was issued on April 18, 2019, instructed recipients not to discuss or convey information regarding Corizon or Osler to Schwartz or his immediate staff; required all files maintained in and related to Corizon or Osler to be prominently marked as screened from Schwartz; required that Schwartz's access to electronic records concerning Corizon or Osler be restricted; and directed staff working with Schwartz not to communicate in any manner with him regarding Corizon or Osler. (Id. at 2-3.) Carter avers that physical and electronic Corizon and Osler files have been marked and restricted from Schwartz, in compliance with the screening memorandum. (Id. at 3.) He further avers that he has not disclosed material confidential information relating to Corizon or Osler to Schwartz and is unaware of anyone who has done so. (Id.) Finally, Carter promises that his office will respond promptly to any future written inquiries or objections by the parties or the Court regarding its screening procedure. (Id.)

         Schwartz's declaration confirms his conflict and avers that he knows nothing about Plaintiff's two pending lawsuits other than what Plaintiff wrote in a July 2018 letter concerning Schwartz's conflict. (Id. at 6.) Schwartz states that he is aware of his ethical obligations to be screened from Plaintiff's two pending lawsuits and that he intends to abide by the requirements of the Ethics Counsel's screening memorandum. (Id. at 7.)

         Plaintiff filed Replies (Docs. 77, 80) in which, among other things, he complains that privileged documents regarding Schwartz's rulings and this case were seized from him; that his computer time has been restricted and he has been denied calls to counsel; that Corizon canceled medical treatment and Plaintiff's special-needs diet; that representation by the Arizona Attorney General creates an appearance of impropriety mandating disqualification; and that Ethics Rule 1.12 and Ethics Opinion 88-04 mandate disqualification. Plaintiff attaches his computer-use calendar, a restricted diet order, a letter he wrote to Carter, an inmate property/contraband receipt, newspaper articles, and an inmate request for paralegal assistance. (Docs. 77-1, 80-1.) In an Order dated July 24, 2019, the Court took this Motion under advisement. (Doc. 100 at 15.)

         The Arizona Rules of Professional Conduct provide that “a lawyer shall not represent anyone in connection with a matter in which the lawyer participated personally and substantially as a judge or other adjudicative officer . . . unless all parties to the proceeding give informed consent confirmed in writing.” E.R. 1.12(a). The merits of Plaintiff's underlying criminal case before former Judge Schwartz are not at issue in the above-captioned matter, but there is no dispute that Schwartz is disqualified from representation in this matter. Schwartz's disqualification is not directly in issue because he does not represent any party in this matter. Carter represents Defendants Osler, Moreno, Ramos, and Schletter, and thus the issue is whether Carter is disqualified from representation due to the disqualification of Schwartz, given that both attorneys now work for the Arizona Attorney General's Office. Arizona Rule of Professional Conduct 1.12(c) governs that issue:

         If a lawyer is disqualified by paragraph (a), no lawyer in a firm with which that lawyer is associated may knowingly undertake or continue representation in the matter unless:

(1) the disqualified lawyer is timely screened from any participation in the matter and is apportioned no part of the fee therefrom; and

(2) written notice is promptly given to the parties and any appropriate tribunal to enable them to ascertain compliance with the provisions of this Rule, including a description of the particular screening procedures adopted; when they were adopted; a statement by the personally disqualified lawyer and the new firm that the parties' and tribunal's material confidential information has not been disclosed or used in violation of the Rules; and an agreement by the new firm to respond promptly to any written inquiries or objections by the parties or the tribunal about the screening procedure; and

(3) the personally disqualified lawyer and the new firm reasonably believe that the steps taken to accomplish the screening of material confidential information will be effective in preventing such information from being disclosed to the new firm and its client.

E.R. 1.12(c).

         Upon review of Defendants' Response and Supplemental Response, and of the declarations of Carter and Schwartz, the Court is satisfied that the screening procedures put into place by the Arizona Attorney General's Office comply with Arizona Rule of Professional Conduct 1.12(c). Therefore, although Schwartz is disqualified from undertaking representation in this matter, Carter is not disqualified from continuing his representation. Plaintiff's Motion will be denied.

         II. Motion to Hold ADOC in Contempt (Doc. 103), Motion Under General Order 18-19 (Doc. 104), and Motion to Serve Schletter/Osler by Publication (Doc. 109)

         On January 29, 2019, the Court directed the Arizona Department of Corrections (“ADOC”) to provide the last-known addresses of Defendants Schletter and Osler. (Doc. 41 at 15.) ADOC did not comply with the Court's Order. In his Motion to Hold ADOC in Contempt, Plaintiff asks that the Court hold ADOC in contempt and, as a sanction, require ADOC to accept service and forward it to Defendants Schletter and Osler. (Doc. 103.) In his Motion Under General Order 18-19, Plaintiff asks the Court to order the U.S. Marshal to serve a subpoena duces tecum on ADOC requesting the addresses of Schletter and Osler. (Doc. 104.) In his Motion to Serve Schletter/Osler by Publication, Plaintiff asks that the Court allow service by publication in accordance with Fed.R.Civ.P. 4(e)(1) and Ariz. R. Civ. P. 4.2(f), with the costs of such service to be taxed on ADOC. (Doc. 109.)

         On August 13, 2019, non-party ADOC appeared specially to respond to Plaintiff's Motion to hold ADOC in contempt, indicating it did not receive the Court's January 29, 2019 Order. (Doc. 110.) On the same date, Defendants Osler and Schletter waived service. (Doc. 111.) On September 12, 2019, Defendants Osler and Schletter joined (Doc. 135) Defendants Moreno and Ramos's Answer (Doc. 75) to Plaintiff's Second Amended Complaint (Doc. 42). On August 19, 2019, Plaintiff filed a Reply (Doc. 117), which-albeit while continuing to assert allegations of impropriety against defense counsel-appears to concede that the issues raised in Plaintiff's Motions are moot.

         As Defendants Schletter and Osler have waived service and answered Plaintiff's Amended Complaint, the Court will deny as moot Plaintiff's Motion to Hold ADOC in Contempt (Doc. 103), his Motion Under General Order 18-19 (Doc. 104), and his Motion to Serve Schletter/Osler by Publication (Doc. 109).

         III. Motion to Reconsider (Doc. 107), Motion for Leave to Take Telephonic Depositions (Doc. 126), and Motion for Protective Order (Doc. 139)

         In an Order dated July 24, 2019, the Court addressed various motions, applications, and notices filed by Plaintiff. (Doc. 100.) In his Motion to Reconsider, Plaintiff asks the Court to reconsider a portion of its July 24, 2019 Order contained on page 8, beginning at line 12. (Doc. 107.) In that portion of the Order, the Court denied Plaintiff's Motion to Modify Rule 31 Procedures (Doc. 74) as moot because the Motion did not appear to request any action on the part of the Court but, instead, appeared to be a discovery request that should have been served upon the opposing party rather than filed with the Court. (Doc. 100 at 8.)

         In both his prior Motion to Modify Rule 31 Procedures (Doc. 74) and his currently pending Motion to Reconsider (Doc. 107), Plaintiff asks that particular witnesses-rather than opposing counsel-respond to written questions in lieu of oral depositions.^[1] In his Motion for Leave to Take Telephonic Depositions, Plaintiff requests leave to conduct telephonic oral depositions due to defense counsel's refusal “to respond to discovery-in accordance with judicially created exceptions in prisoner cases.” (Doc. 126 at 1 (citing Turner v. Safley, 482 U.S. 78 (1987).^[2]) Plaintiff indicates that the oral depositions can be recorded using a Voice Over IP account, which can be opened for about $100. (Id. at 11-12.) Plaintiff does not indicate he would be able to pay for the Voice Over IP account.

         On September 13, 2019, non-parties Borhuszewicz, ^[3] Dossett, Erwin, and ADOC Custodian of Records filed a Motion for Protective Order, requesting an order pursuant to Rule 26(c) protecting them from having to appear for and respond to Plaintiff's telephonic depositions. (Doc. 139.) Movants argue (1) that the Court's Scheduling Order limits the parties to seeking discovery from other parties; (2) Plaintiff's Motion for Leave to Take Telephonic Depositions fails to describe the information he seeks from the deponents, and the questions proposed in his prior Motion to Modify Rule 31 Procedures are irrelevant; and (3) Plaintiff has not identified an officer to prepare the record or transcripts of the requested depositions and has not shown that he has the financial ability to retain and compensate such an officer. (Id. at 5-6.)

         Plaintiff filed a combined Reply in Support of Motion for Leave to Take Telephonic Depositions and Response to Motion for Protective Order. (Doc. 146.) Plaintiff argues that his proposed questions are relevant because Boschuweicz, Erwin, and Dossett were all personally involved in instructing that Plaintiff's legal mail be opened in his absence and that he be denied access to legal documents. (Id. at 3, 5, 7-8, 11-13.)

         Movants filed a Reply in support of their Motion for Protective Order (Doc. 153), arguing that Plaintiff has not shown that Movants possess any relevant information about his claims, that this Court does not have authority to intervene until Plaintiff demonstrates that he attempted unsuccessfully to resolve his recent mail issues administratively before bringing them to the Court's attention, ^[4] and that Plaintiff has acted frivolously and maliciously by propounding discovery requests on non-parties without first obtaining leave of Court to do so.

         On September 16, 2019, Defendants Corizon, Glen Babich (“Babich”), and Charles Ryan (“Ryan”) filed a Response to Plaintiff's Motion for Leave to Take Telephonic Depositions. (Doc. 140.) Defendants argue that Plaintiff's Motion for Leave to Take Telephonic Depositions is deficient because Plaintiff does not provide the names of the proposed deponents or information concerning what relevant information the proposed deponents may have concerning Plaintiff's claims, that Plaintiff does not specify how he intends to secure the presence of the deponents, and that Plaintiff does not state how he plans to pay for a transcription of the telephonic depositions or arrange for an officer appointed or designated under Federal Rule of Civil Procedure 28. (Id. at 1-2.) Plaintiff filed a Reply (Doc. 147), arguing that he named the proposed deponents in his original Motion to Modify Rule 31 Procedures (Doc. 74). Plaintiff also complains in the Reply about the medical care provided to inmates by Corizon and about Corizon's alleged concealment of evidence and alteration of records. (Doc. 147 at 3-14.)

         Pursuant to Rules 33, 34, and 36 of the Federal Rules of Civil Procedure, a party may serve interrogatories, requests for production, and requests for admission on any other party. The Court's Scheduling Order contains numerical limits on the number of interrogatories, requests for production, and requests for admission that a party may serve. (Doc. 64 at 3.) However, contrary to the non-party Movants' argument, the Scheduling Order does not limit discovery to parties. Under Rules 30 and 31 of the Federal Rules of Civil Procedure, a party may “depose any person”-whether or not a party-by oral or written questions; furthermore, under Rule 45, a subpoena may command a non-party to testify or produce documents, electronically stored information, or tangible things in that person's possession. Fed.R.Civ.P. 30(a)(1); Fed.R.Civ.P. 31(a)(1); Fed.R.Civ.P. 45(a)(1)(iii). Nothing in the Court's Scheduling Order alters these provisions of Rules 30, 31, and 45. Accordingly, the Court rejects the non-party Movants' argument that they need not appear for depositions merely because they are non-parties.

         Absent certain exceptions not applicable here, a party may depose any person^[5] by written questions under Rule 31 without leave of Court. Fed.R.Civ.P. 31(a)(1)-(2). The Court previously denied Plaintiff's Motion to Modify Rule 31 Procedures (Doc. 74) as moot because-despite its title-the Motion did not appear to request any action on the part of the Court. (Doc. 100 at 8.) Plaintiff's Motion for Reconsideration does not present any grounds for reconsidering the Court's prior denial of that Motion. See LRCiv 7.2(g)(1) (motions for reconsideration will ordinarily be denied “absent a showing of manifest error or a showing of new facts or legal authority that could not have been brought” to the Court's “attention earlier with reasonable diligence”). However, to the extent that Plaintiff intended to request action on the part of the Court in his prior Motion to Modify Rule 31 Procedures, the Court alternatively finds that the prior Motion should be denied on the merits.

         “At first glance, a deposition upon written questions may look like an inexpensive way for a prisoner to do discovery compared with a traditional deposition but it usually is not.” Picozzi v. Clark Cnty. Detention Ctr., No. 2:15-cv-00816-JCM-PAL, 2017 WL 4678472, at *3 (D. Nev. Oct. 16, 2017). Although Rule 31 allows for parties to exchange written direct, cross, redirect, and recross questions for a witness, absent the parties' stipulation to another procedure, see Fed. R. Civ. P. 29(a), an officer authorized under Federal Rule of Civil Procedure 28 must take the witness's deposition at a scheduled date and time and then prepare and certify a record of the deposition. Fed.R.Civ.P. 31(a)(5), (b). Accordingly, “[t]o obtain a deposition upon written questions, the prisoner is responsible to pay the witness fee, deposition officer fee, court reporter fee, and the cost of the deposition transcript.” Picozzi, 2017 WL 4678472, at *4. A plaintiff's “indigent status does not entitle him to a waiver of [these] fees.” Id. (denying indigent plaintiff's motion for deposition upon written questions where the plaintiff did not designate a deposition officer and had not shown he could pay any of the costs associated with written depositions); see also Masterson v. Campbell, No. CIV S-05-0192 JAM DAD P., 2009 WL 2824754, at *1 (E.D. Cal. Sept. 1, 2009) (denying motion to take written depositions where plaintiff had “not shown that he is able and willing to procure the services of an officer that could administer the written deposition, certify [the witnesses'] responses, and prepare a record”).

         Plaintiff has not identified a duly authorized deposition officer, nor has he designated a time and place for such an officer to take any witness's deposition by written questions. Plaintiff has also failed to show that he can pay the costs associated with taking depositions under Rule 31. Accordingly, to the extent that Plaintiff's prior Motion to Modify Rule 31 Procedures (Doc. 74) and Plaintiff's currently pending Motion for Reconsideration (Doc. 107) request leave of Court to take written depositions without complying with the procedures of Rule 31 of the Federal Rules of Civil Procedure, the Court denies that request on the merits.

         For similar reasons, the Court will also deny Plaintiff's Motion for Leave to Take Telephonic Depositions (Doc. 126) and grant non-party Movants' Motion for Protective Order (Doc. 139). Oral depositions under Rule 30 must be conducted before an officer authorized under Rule 28. Fed.R.Civ.P. 30(b)(5). Although the parties may stipulate to a deposition being taken before any person, see Fed. R. Civ. P. 29(a), the parties have not so stipulated in this case. Plaintiff has not identified a duly authorized officer to oversee the oral depositions that Plaintiff seeks to take, nor has he shown that he can pay the costs associated with such depositions.

         IV. Motion for Leave to File Motion to Compel (Doc. 108)

         In his Motion for Leave to File Motion to Compel (Doc. 108), Plaintiff requests leave of Court to file a motion to compel against Defendants Corizon, Babich, and Ryan. Plaintiff indicates that these Defendants have refused to provide him with his medical records; emails concerning informal complaints concerning medical care submitted by Plaintiff to ADOC CO IIIs; emails from Corizon staff concerning Plaintiff's medical care; directives to Corizon employees concerning prisoner healthcare; performance measures; records of training of Corizon employees who made decisions concerning Plaintiff's medical care and any allegations and investigations against them for not following policies; false records and documents concerning alteration of medical records; escalation lists kept by Corizon; other complaints similar to Plaintiff's; charging orders; privileged information given to Corizon by ADOC employees; and investigations of Plaintiff's medical grievances by Corizon and ADOC. (Id.)

         In Response, Defendants Corizon, Babich, and Ryan state that Plaintiff has arguably failed to attempt to resolve the parties' discovery dispute without Court intervention because he has refused to narrow his discovery requests to render them proportional to the allegations at hand. (Doc. 118.) However, Defendants agree that a discovery motion or hearing “will likely be the only way to resolve the ongoing dispute” and accordingly have no opposition to Plaintiff's Motion for Leave to File a Motion to Compel. (Id.) Plaintiff filed a Reply (Doc. 120) and a notice of additional authority (Doc. 119).^[6]

         There being no objection by Defendants, the Court will grant Plaintiff's Motion for Leave to File Motion to Compel. (Doc. 108.) Any motion to compel filed by Plaintiff shall include as attachments copies of the specific discovery requests and responses that are in dispute. . . . .

         V. Motion for Leave to File Third Amended Complaint (Doc. 112) and Motion toExc ...