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Wilson v. Geerdes

United States District Court, D. Nebraska

July 10, 2019

HAROLD BRYAN WILSON, Plaintiff,
v.
JASON GEERDES, in his Official Capacity; et. al; Defendants.

          MEMORANDUM AND ORDER

          CHERYL R. ZWART UNITED STATES MAGISTRATE JUDGE

         The following filings are pending before me:

• The Motion to Appoint Counsel filed by Plaintiff Harold Wilson, (“Wilson”) (Filing No. 124);
• Defendants' Motion to Depose a Confined Person, (Filing No. 126), and to extend the deposition deadline, (Filing No. 126), and Plaintiff's associated objections, (Filing Nos. 128 and 131); and
• Wilson's Motion to Depose Michael Gooch, his former court-appointed counsel, (Filing No. 132).

         For the reasons stated below, Plaintiff's motions will be denied, and Defendants' motion will be granted.

         As summarized by Judge Rossiter:

The crux of Wilson's suit is that he wants to marry fellow prisoner Riley Nicole Shadle (“Shadle”), but the officials will not let him, in violation of his constitutional rights. On October 17, 2017, Wilson and Shadle, with the assistance of court-appointed counsel, Michael D. Gooch (“Gooch”), filed a Second Amended Complaint (Filing No. 64), alleging the officials (or their predecessors) (1) denied their right to marry without any penological interest (2) refused to notarize Wilson's signature on an application and affidavit required to obtain a marriage license, and (3) placed Shadle in segregation and transferred Wilson to another facility in retaliation for attempting to exercise their rights to marry and to obstruct and interfere with those rights. Relying on 42 U.S.C. § 1983, Wilson and Shadle asked the Court to (1) declare that any NDCS policy infringing on their right to marry is unconstitutional and (2) enjoin the officials “from obstructing or interfering with their efforts to marry.”

(Filing No. 122, at CM/ECF pp. 1-2). After the Second Amended Complaint was filed, Gooch moved to withdraw due to a conflict of interest. That motion was granted and the following day, Shadle moved to voluntarily dismiss her claims. (Filing No. 106).

         Defendants' moved for summary judgment, arguing that if Shadle no longer wants to marry Wilson, then Wilson's right to marriage claim must be denied as moot. On May 13, 2019, Judge Rossiter denied Defendants' motion, noting no evidence indicating whether Shadle remains willing to marry Wilson. “That Shadle settled her own § 1983 claims against the officials does not definitively establish that Shadle does not want to marry Wilson or render Wilson's claims moot.” (Filing No. 122, at CM/ECF p. 5). Judge Rossiter reasoned that Shadle may still be “willing to marry Wilson if he successfully removes all the obstacles in their way, ”. . . and “[t]hat reasonable possibility presents a live controversy.” In response to Judge Rossiter's reasoning, Defendants now request leave to depose Shadle to secure her testimony on the pivotal issue of whether she still wants to marry Wilson. (Filing No. 126). Federal Rule of Civil Procedure Rule 30(a)(2)(B) states that a party must obtain leave of court to depose a person confined in prison. Leave shall be granted to the extent consistent with the principles stated in Rule 26(b)(2). Fed.R.Civ.P. 30(a)(2). Wilson objects to Defendants' motion to depose Shadle because the deposition deadline has passed. (Filing No. 128). He further objects to Defendants' suggestion that Wilson be allowed to attend and participate in the deposition telephonically. (Filing No. 131). Wilson also moves for an order allowing him to depose his former attorney, Michael Gooch, (Filing No. 132), and he requests appointment of counsel. (Filing No. 124).

         The deposition deadline was January 31, 2019. (Filing No. 101). Defendants' motion for leave to depose Shadle was not filed until June 11, 2019. Pursuant to Rule 16(b)(4), a case management order “may be modified only for good cause and with the judge's consent.” Fed. R. Civ. P. 16(b)(4). The movant's level of diligence and the degree of prejudice to the parties are both factors to consider when assessing if good cause warrants extending a case management deadline, with the movant's diligence being the first consideration and the extent of prejudice to either party considered only after the movant makes a showing of due diligence. Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 716-17 (8th Cir. 2008); Marmo v. Tyson Fresh Meats, Inc., 457 F.3d 748, 759 (8th Cir. 2006).

         The court finds that as to the focus of Defendants' requested deposition, Shadle's interest in marrying Wilson, new and previously unforeseen circumstances arose when Shadle moved to dismiss in return for payment of the federal filing fee. And during the four weeks thereafter, to a date after the deposition deadline, deposing Shadle was not feasible because no one knew whether Wilson would be represented by counsel or appearing pro se. Wilson had moved for appointment of counsel on two occasions after January 17, 2019, with the later motion denied on February 12, 2019-after the deposition deadline.

         Under the circumstances presented, the court finds that Defendants were diligent in pursuing discovery herein, the need for Shadle's deposition was not apparent until she filed her motion for dismissal, and Defendants acted appropriately in not noticing Shadle's deposition while the issue of Wilson's representation remained unresolved. The court further finds that Defendants will be prejudiced if they are not permitted to secure testimonial evidence from Shadle on the issue of whether she wants to marry Wilson.[1]

         The court therefore finds the defendants have shown good cause for modifying the case progression order to permit Defendants to depose Shadle. Wilson's objection based ...


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