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McCort v. Muskingum County

United States District Court, S.D. Ohio, Eastern Division

May 29, 2018

DEANO MCCORT, Plaintiff,
v.
MUSKINGUM COUNTY, et al., Defendants.

          George C. Smith Judge.

          OPINION AND ORDER

          KIMBERLY A. JOLSON UNITED STATES MAGISTRATE JUDGE.

         This 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.

         I. BACKGROUND

         Plaintiff 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)).

         Defendants 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).

         As both 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 7-9).

         The 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, date it?
MR. PERRYMAN: That would be fine.

(Id. at 7-9). With Plaintiff under oath, the deposition ensued. (Id. at 10).

         Plaintiff 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 ...


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