United States District Court, E.D. Missouri, Eastern Division
WALTER W. WALLACE, JR., Plaintiff,
STE. GENEVIEVE DETENTION CENTER, et al., Defendants.
MEMORANDUM AND ORDER
PATRICIA L. COHEN UNITED STATES MAGISTRATE JUDGE.
matter is before the Court on Defendants Gary Stolzer and Patti
Karol's motion for leave to depose Plaintiff Walter
Wallace pursuant to Fed.R.Civ.P. 30(a)(2)(B). [ECF No. 83]
Plaintiff opposes the motion. [ECF No. 85]
February 2017, Plaintiff filed his pro se complaint
against Defendants Stolzer and Karol in their individual and
official capacities,  seeking declaratory and monetary relief
under 42 U.S.C. § 1983 for alleged violations of
Plaintiff's First Amendment right to exercise his
religion. [ECF No. 1] In an amended complaint, Plaintiff
claimed he “is a Sunni Muslim who follows the Harafi
school of Sunni law” and Defendants denied his requests
for (1) his kufi, (2) his prayer rug, and (3) the ability to
engage in congregational prayer while he was detained in the
Ste. Genevieve Detention Center prior to trial. [ECF No. 9]
deadline for completion of discovery in this case was May 25,
2018. [ECF No. 47] In July 2018, Defendants
moved for summary judgment on Plaintiff's three claims.
[ECF No. 55] In April 2019, the Court entered a memorandum
and order dismissing Plaintiff's official capacity claims
against Defendants and his claims for injunctive relief. [ECF
No. 74] Additionally, the Court granted Defendants summary
judgment as to Plaintiff's section 1983 claims arising
from the confiscation of his prayer rug and the denial of his
request for congregational prayer. [Id.]
Consequently, the sole claim remaining for trial is
Plaintiff's section 1983 claim arising from the
confiscation of his kufi. [Id.] Trial is scheduled
to begin September 9, 2019. [ECF No. 80]
28, 2019, approximately thirteen months after Defendants'
deadline for completion of discovery, Defendants moved for
leave to depose Plaintiff pursuant to Fed.R.Civ.P.
30(a)(2)(B). [ECF No. 83] In their motion, Defendants assert
that “deposing the Plaintiff is well within the scope
of discovery and  consistent with the principles in Rule
26” and “[c]ourts commonly grant defendants leave
to depose the plaintiff when the plaintiff is
incarcerated.” [ECF No. 84] Plaintiff opposes
Defendants' motion for leave to depose him on the grounds
that: (1) discovery has been closed for roughly one year; and
(2) Defendants provide no justification for reopening
discovery to conduct Plaintiff's deposition at this point
in the litigation. [ECF No. 85]
Rule of Civil Procedure 16(b) governs the court's
issuance and modification of pretrial scheduling orders and
provides that the court “must issue a scheduling order,
” which “must limit the time to join other
parties, amend the pleadings, complete discovery, and file
motions.” Fed.R.Civ.P. 16(b)(1), (3)(A). See also
Sherman v. Winco Fireworks, Inc., 532 F.3d 709, 715 (8th
Cir. 2008). The scheduling order “may be modified for
good cause and with the judge's consent.”
Fed.R.Civ.P. 16(b)(4). “The primary measure of good
cause is the movant's diligence in attempting to meet the
[scheduling] order's requirements.”
Sherman, 532 F.3d at 716-17 (quoting Rahn v.
Hawkins, 464 F.3d 813, 822 (8th Cir. 2006)).
cause does not support Defendants' motion for leave to
depose Plaintiff at this late date. This not a situation in
which Defendants had inadequate time for discovery. This case
has been pending since February 2017. Defendants did not seek
to depose Plaintiff until thirteen months after the close of
discovery, more than two months after the Court entered
partial summary judgment, and approximately two months prior
to the trial date. Furthermore, Defendants offer no
explanation as to why they did not depose Plaintiff before
the close of discovery. Defendants failed to show the
diligence required to justify modification of the scheduling
order and leave to depose Plaintiff at this late date.
See e.g., Vails v. United Cmty. Health Ctr.,
Inc., 283 F.R.D. 512, 514 (N.D. Iowa 2012).
IT IS HEREBY ORDERED that Defendants'
motion for leave to depose Plaintiff [ECF No. 83] is
 The parties consented to the
jurisdiction of the undersigned pursuant to 28 U.S.C. §
636(c). [ECF No. 26]
 Plaintiff included as a defendant the
Ste. Genevieve Detention Center. The Court dismissed
Plaintiff's claims against the Detention Center because
“departments or subdivisions of local governments are
‘not juridical entities suable as such.'”
[ECF No. 10 (quoting Ketchum v. City of West Memphis,
Ark., 974 F.2d 81, 82 (8th Cir. 1992)]
 As a result of issues with
Defendants' discovery responses, the Court extended
Plaintiff's deadline to complete discovery until July ...