United States District Court, S.D. Ohio, Eastern Division
C. Smith Judge.
OPINION AND ORDER
KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Plaintiff's Motion to
Strike his Deposition (Doc. 38) and Motion for Extension of
Time. (Doc. 39). For the reasons set forth below,
Plaintiff's Motion to Strike his Deposition is
DENIED (Doc. 38), and his Motion for
Extension of Time is GRANTED (Doc. 39).
Plaintiff shall file his opposition to the pending Motion for
Summary Judgment (Doc. 34) no later than twenty-one days
after the issuance of this Opinion and Order.
Deano McCort, proceeding pro se, filed the instant
case pursuant to 42 U.S.C. § 1983 against Muskingum
County, the Muskingum County Sheriff's Department, and
the Muskingum County Jail. (See Doc. 1). Plaintiff
also sued Matt Lutz (Sherriff at the Muskingum County Jail),
David Soschi [sic] (Captain at the Muskingum County Jail),
Shane Love (a medical provider at the Muskingum County Jail),
and Travis Nicholas (Deputy Sherriff at the Muskingum County
Jail) in their individual and official capacities. (See
id.). Defendant Love has been terminated as a party to
this action. (See Doc. 35 (adopting recommendation
that Defendant Love's Motion for Judgment on the
Pleadings be granted)).
Muskingum County, the Muskingum County Sheriff's
Department, the Muskingum County Jail, Matt Lutz, David
Suciu, and Travis Nicholas (collectively
“Defendants”) filed a Motion for Summary Judgment
on April 11, 2018. (Doc. 34). In that Motion, Defendants rely
on testimony from Plaintiff's deposition in this case,
which occurred on February 12, 2018. (See id.).
Defendants filed Plaintiff's deposition with the Court on
April 4, 2018. (Doc. 31).
sides explain, Plaintiff's deposition was controversial
from the start. To demonstrate, the Court follows the
parties' lead in looking to the relevant portions, but
not the substance, of the deposition transcript. Upon
arrival, Plaintiff refused to proceed without counsel.
(Id. at 6-7). He explained:
I just don't want my rights being violated. Do you guys
see where I'm coming from, though? If you ain't smart
with the law, you guys will be asking all the questions, you
know. I don't understand - I mean, I don't understand
a whole lot. I never made it through 7th, 8th grade. See what
I'm saying? I don't want to be- jeopardize any more
of what they've done to me. You know what I'm saying?
They've done locked me up, threw away the key for
something I didn't even do. I know it ain't this
case, I understand that, but you got to see where I'm
coming from. I'm doing four and a half years for
something I didn't do.
(Id. at 7). Defense counsel explained to Plaintiff
that the deposition was in his civil case, not his criminal
case, and that Defendants were entitled to discover the facts
concerning the claims brought against them. (Id.).
Ultimately, Plaintiff agreed to proceed with the deposition
after both sides signed a document reflecting that he was not
waiving any of his constitutional rights. (Id. at
relevant exchange is as follows:
MS. BOCKELMAN: Mr. McCort, this is-you filed a civil lawsuit
against the individuals that we represent. In a civil
proceeding those individuals, through counsel, are entitled
to find out the facts that form the basis of your complaints
against them. This does not involve your criminal action.
I'm not here really to delve into much more than why you
are in prison. Other than that, we're here today to find
out what you remember and what you know about the incident
and a little bit of background information about you.
That's the extent of today's deposition.
THE WITNESS: That's it? Then I'll answer it as long
as you guys read that out loud and sign it, I'll answer
your questions. For the record. If you want to read it. Read
it out loud, I'll go forward with it. It shouldn't
take very long for what I remember.
MR. PERRYMAN: Well, being that this is a statement that you
will be making, if you want to read it out loud.
THE WITNESS: I can't read that well. I had it typed up.
So, I mean, is one you of willing to read it? I can't
read that well.
MR. PERRYMAN: Okay. The typed statement as Mr. McCort has
given us here states that, “It is my intention to
answer questions only under the condition that I am not
waiving any of my rights and that my rights under the Ohio
State and Federal Constitution are granted.” I'm
sorry, that's guaranteed, not granted. “And that
this guarantee is made by and through the parties involved in
this disposition, ” I believe he means deposition
there, “through their signatures on this
statement.” So, essentially, Mr. McCort, has provided a
written statement that he wants to be ensured that he is not
waiving any of his rights under the Ohio State or Federal
Constitution. That is Mr. McCort's prerogative not to
waive any of those rights. Again, we are only here to ask
questions concerning the lawsuit that he's filed in the
Southern District of Ohio against the Defendants, Muskingum
County Sheriff's Office, representatives of that office
and Nurse Shane Love.
THE WITNESS: That's fine. Do you guys want to sign it,
MR. PERRYMAN: That would be fine.
(Id. at 7-9). With Plaintiff under oath, the
deposition ensued. (Id. at 10).
answered questions for a period of time before the deposition
went awry. Controversy arose when defense counsel questioned
Plaintiff about the allegations in the Complaint in this
case, which was marked as deposition ...