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Collins v. Wilkerson

March 26, 2007


The opinion of the court was delivered by: Judge Holschuh


This prisoner civil rights case is before the Court to consider a motion for reconsideration filed by plaintiff, Leroy Collins. Mr. Collins has asked the Court to reconsider an Order and Report and Recommendation issued by the Magistrate Judge. There are a number of other motions pending as well, all of which will be disposed of by this order (with the exception of Mr. Collins' motion for a scheduling order, which will be referred to the Magistrate Judge for further action).


On July 24, 2006, the Magistrate Judge issued an order ruling on a number of non-dispositive motions filed by the parties. That order also included a recommendation that Mr. Collins' motion for a temporary restraining order be denied. Mr. Collins has objected both to the denial of his motions and the recommendation that his motion for injunctive relief be denied.

The Court turns first to several motions filed by Mr. Collins to amend his complaint. The Magistrate Judge granted one such motion but denied others for two reasons: that Mr. Collins had not adequately demonstrated exhaustion of administrative remedies with respect to certain claims about his living conditions, and that he would not be permitted to amend his complaint to name the "medical staff" at his institution as a defendant because he had not provided the names of any specific members of the medical staff he wished to designate as defendants.

At the time the Magistrate Judge's order was issued, case law from the Court of Appeals for this circuit required that a prisoner plead and prove exhaustion of administrative remedies in his or her complaint. That line of cases has now been overruled by the United States Supreme Court. See Jones v. Bock, 127 U.S. 910 (2007). Consequently, as a result of an intervening change in the law, the Court concludes that Mr. Collins should be given the opportunity to amend his complaint. Although the order denying him leave to add the "medical staff" at his institution as a defendant is correct and is therefore affirmed, should Mr. Collins wish to name individual members of the medical staff in an amended complaint, he is free to do so. The Court further notes that it appears that Mr. Collins has been deposed with respect to a number of the allegations which he proffered in his amended complaint concerning living conditions, so that the defendants will not be prejudiced if the amendment is permitted. Further, it appears that the discovery cut-off date will be extended and that Mr. Collins will be subject to an additional deposition, as more fully discussed below. Under these circumstances, the interests of justice favor the filing of an amended complaint. At the conclusion of this memorandum and order, the Court will establish a time frame for that to occur.

Mr. Collins also objected to the denial of his motion for the appointment of counsel. He has since renewed that motion, so his objection is moot. His renewed motion suggests that because, at the time he filed the motion, he was confined in segregation, he was unable to prosecute this case.

The record does not indicate whether Mr. Collins is still confined in segregation. Further, he has demonstrated an ability to file articulate pleadings and appears to have a good grasp of the issues in his case. Should his claims, after discovery, survive a motion for summary judgment, the Court will then consider whether counsel should be appointed. In the interim, however, the renewed motion for appointment of counsel (#45) will be denied.

Finally, Mr. Collins objects to the recommendation that his motion for a temporary restraining order be denied. The Report and Recommendation noted that the basis for the motion for injunctive relief related to matters not set forth in the complaint and that injunctive relief is ordinarily not appropriate under those circumstances. The Court agrees. However, if Mr. Collins' new complaint adds these allegations and the situation about which he complains still exists, he is free to renew his motion.


The Court now turns to other pending motions. Mr. Collins was deposed in this case on October 30, 2006. He has moved to strike his deposition. Conversely, the defendants have moved for an order compelling him to answer questions at a deposition and to permit a further deposition. The Court addresses each of these issues in turn.

Mr. Collins contends that his deposition should not be used against him because he was not provided reasonable notice of the deposition, because he had requested the appointment of counsel prior to the deposition but counsel was not provided, because he was in segregation at the time of the deposition and did not have access to legal materials, and because the deposition was conducted inappropriately. Most of these allegations lack merit. The Court has concluded that Mr. Collins was not entitled to the appointment of counsel prior to his deposition. It also appears that he did bring legal materials with him to the deposition. Finally, from a review of the deposition transcript, the Court is not persuaded that the conduct of defendants' counsel was so egregious that the deposition ought not to be considered for use in this case. The Court will, however, comment on that issue more fully below.

With respect to the issue of notice, it appears that Mr. Collins' deposition was taken on five days' notice. Ordinarily, at least eleven days' notice is required to be provided for a deposition or the deposition may not be used. Fed. R. Civ. P. 32(d)(1) allows the eleven-day notice requirement to be waived, however, if a party does not move for a protective order based on the lack of adequate notice prior to the commencement of the deposition.

It is somewhat unrealistic to expect a prisoner inmate to be able to file a motion for protective order when a deposition notice is served upon him only a few days before the date of the deposition. Even had such a motion been prepared and placed in the prison mailbox, it would likely not have been received by the Court prior to the date of the deposition. The Court is at a loss to understand why only five days' notice was given here. Nonetheless, because it does not appear that Mr. Collins was prejudiced by the ...

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