United States District Court, D. Arizona
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 ...