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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

TALLAHASSEE DIVISION

MICHAEL E ROWAN,

Plaintiff,

v. CASE NO. 4:10-cv-429-MP-GRJ

KEN TUCKER, et al.,

Defendants.

_____________________________/

O R D E R

This case is before the court on Doc. 42, Plaintiff’s Request for Leave of Court to

Depose Persons Confined in the Florida Department of Corrections; Doc. 46, Plaintiff’s

Request for Leave of Courts to Depose by Written Questions Duane Spears; and Doc.

59, Plaintiff’s Motion for Ruling on Pending Motions Related to Discovery Process. The

discovery period in this case was initiated on May 16, 2011 and though originally

scheduled to end on August 15, 2011, this Court has granted extensions of time

through September 23, 2011. (Docs. 22, 57). Plaintiff filed the instant requests for

leave to depose by written questions four inmates and one former warden on or before

August 15, 2011. (Docs. 42, 46). Defendants have not filed responses in opposition to

Docs. 42 or 46, and the time for doing so has passed.

Background

Plaintiff is an inmate at Taylor C.I. Annex. His Complaint, filed October 6, 2010,

alleges violations of his right to Equal Protection and his right to exercise his religion as

codified in the Religious Land Use and Institutionalized Persons Act (RLUIPA) and

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Florida Religious Freedom Restoration Act (FRFRA). Plaintiff asserts that his religious

preference is Messianic Judaism, which he describes as a sect of Judaism that accepts

Jesus Christ as the promised Messiah of the Old Testament of the Bible and also

recognizes the New Testament as the inspired, infallible word of God. Plaintiff

contends that until March 2010, inmates recognized as “Messianic Jewish/Judaism” by

the Department of Corrections were permitted to attend Friday afternoon prayer

observance (Erev Shabbat) and recognized Jewish feast/festival holy days of Leviticus

Ch. 23 with inmates recognized as being of the “Jewish/Judaism” faith. Following the

Passover holiday in 2010, Defendant Scheetz, Chaplain at Taylor C.I., allegedly

removed all inmates of the Messianic faith from the Friday afternoon services and

prohibited Messianic inmates from meeting with Jewish inmates for holidays. (Doc. 1).

Plaintiff submitted an inmate request on April 25, 2010 requesting Messianic

inmates be permitted to come to Friday afternoon or Saturday morning services, have

an outside sponsor provide religious items, and to assist Messianic inmates in

observing Jewish holidays. Plaintiff contends that in response, Defendant Scheetz

informed him that Messianic inmates are considered a type of Christian faith group and

would be permitted in any Christian/Protestant services provided. Plaintiff pursued the

DOC’s grievance process and on August 4, 2010, the Office of the Secretary of the

Department of Corrections denied his administrative appeal. He then initiated the

instant action, naming as Defendants the Secretary of the Florida Department of

Corrections, Chaplaincy Services Specialist, Taylor C.I. Chaplain, and Taylor C.I.

Warden in their official capacities. Plaintiff also sues Defendant Scheetz, the Taylor

C.I. Chaplain, in his individual capacity. (Doc. 1). 

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Plaintiff requests as relief (1) declaratory judgment that Defendants violated

Plaintiff’s constitutional right to Equal Protection and his right to religious exercise under

RLUIPA and FRFRA; (2) a preliminary and permanent injunction against Defendants

from denying Plaintiff the right to assemble with other Messianic believers; (3)

Defendants recognize Messianic Judaism as religion distinct from Christianity; (4)

Messianic Organizations/Congregations be allowed to donate items necessary for

religious observances; (5) the DOC be required to incorporate RLUIPA and FRFRA into

its policies, procedures and decision-making; (6) punitive and nominal damages against

Defendant Scheetz; (7) an award of taxable costs associated with the instant action.

(Doc. 1).

Discussion

Discovery is permitted regarding un-privileged matter that is relevant to the

subject matter of the action. Fed. R. Civ. P. 26(b)(1). For discovery purposes,

information is relevant if it “ bears on, or. . .reasonably could lad to other matter[s]

that could bear on any issue that is or may be in the case. Oppenheimer Fund Inc.

v. Sanders, 437 U.S. 340, 351 (1978). Relevant information does not have to be

admissible at trial if it appears reasonably calculated to lead to the discovery of

admissible evidence. Fed. R. Civ. P. 26(b)(1).

Pursuant to Fed. R. Civ. Pro. 31(a)(2)(B), a party seeking to take a deposition

by w ritten questions must obtain leave of court, w hich shall be granted to the

extent consistent with the principles stated in Rule 26(b)(2) if the person to be

examined is confined in prison. Rule 26(b)(2) provides, in pertinent part, that the

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court must limit discovery if it determines that (1) the discovery sought is

unreasonably cumulative or duplicative, or is obtainable from some other source

that is more convenient, less burdensome, or less expensive; (2) the party seeking

discovery has had ample opportunity by discovery in the action to obtain the

information sought; (3) the burden or expense of the proposed discovery outw eighs

its likely benefit.

Plaintiff’s request to depose by written questions four inmates (Doc. 42)

Plaintiff seeks leave of this Court to depose by written questions, pursuant to

Fed. R. Civ. Pro. 31(a)(2), four prisoners currently incarcerated in the Florida

Department of Corrections: Jeffrey Reuter, Steven Oakley, Michael Levine, and Ross

Jay Lawson. Plaintiff asserts that the prisoners have direct and personal knowledge of

facts related to his claim. Plaintiff argues that each inmate’s testimony is relevant as

follows:

Jeffrey Reuter #595303 was previously an inmate at Taylor Correctional

Institution Annex whose initial religious preference was recognized as Messianic

Jewish/Judaism and routinely attended Jewish Services and/or Jewish Prayer

Observance up until the time he was transferred. Inmate Reuter is expected to

testify to the above; the basis for changing his recognized faith from Messianic

Jewish to Jewish; that he attended Jewish services and activities by call out; as

well as to the substance of these services i.e. what activities/rituals were

performed therein.

Steven Oakley #120318 was previously an inmate at Taylor Correctional

Institution Annex whose initial religious preference was recognized as Messianic

Jewish/Judaism and routinely attended Jewish Services and/or Jewish Prayer

Observance up until the time he was transferred. Inmate Oakley is expected to

testify to the above; of his awareness that inmates recognized as Messianic

Jewish/Judaism were previously permitted by call out to attend Jewish services

and/or activities as well as the substance of these activities. In addition to this

inmate Oakley was also a Chapel Orderly at Taylor Correctional Institution Annex

and may be able to provide relevant facts/information regarding other issues as

well related to this current litigation.

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Michael Levine #W25511 was previously an inmate at Taylor Correctional

Institution Annex whose religious preference was recognized as Jewish (possibly

Reformed Judaism) and attended Jewish Services/Jewish Prayer Observance

while at Taylor Correctional Institution Annex. Inmate Levine is expected to

testify to the above; of his awareness that inmates recognized as Messianic

Jewish/Judaism were previously permitted by call out to attend Jewish services

and/or activities as well as the substance of these activities. In addition to this

Plaintiff has a reasonable basis to believe that Inmate Levine, perhaps together

with inmate Ross Lawson. . .are responsible for making a complaint to the

Chaplain and/or the Aleph Institute (Jewish sponsor/donor) that Messianic

inmates were attending Jewish services and/or activities that ultimately led to the

prohibition of Messianic inmates from further attending Jewish services and/or

activities.

Ross Jay Lawson #726599 was previously an inmate at Taylor Correctional 

Institution Annex whose religious preference was recognized as Jewish

(Orthodox Judaism) and attended Jewish Services/Jewish Prayer Observance

while at Taylor Correctional Institution Annex. Inmate Lawson is expected to

testify to the above; of his awareness that inmates recognized as Messianic

Jewish/Judaism were previously permitted by call out to attend Jewish services

and/or activities as well as the substance of these activities. In addition to this,

inmate Lawson, based on information and belief, perhaps together with Inmate

Levine. . .are responsible for making a complaint to the Chaplain and/or The

Aleph Institute (Jewish sponsor/donor) that Messianic inmates were attending

Jewish Services and/or activities that ultimately led to the prohibition of

Messianic inmates from further attending Jewish Services and/or activities.

(Doc. 42).

Plaintiff notes that of the four inmates described, Inmates Reuter and Oakley “are the

most essential” though he wishes to depose by written questions all four inmates.

While the value of the discovery proposed by Plaintiff appears to be marginal, in

light of the fact that there has been no response or objection by Defendants and

Plaintiff’s sufficient explanation of the relevancy of the discovery, the Court will grant

Plaintiff leave to depose the four inmates by written questions. Plaintiff is responsible

for ensuring that all requirements of Rule 31 are met, including service to all parties,

notice, and notice of completion or filing. However, in light of the Department of

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Corrections restrictions on communication among inmates, Plaintiff and the Department

of Corrections are directed to follow the following procedures for serving the written

questions and completing the written depositions of Inmates Reuter, Oakley, Levine,

and Lawson:

1. Plaintiff shall submit the written deposition questions for each deponent to the

Department of Corrections Office of General Counsel, 501 South Calhoun Street,

Tallahassee, FL 32399-2500. The written deposition questions shall be strictly limited

to the subject matter and area of inquiry identified in Plaintiff’s motion (Doc. 42). 

2. D.O.C. Office of General Counsel shall forward the deposition questions to

the litigation coordinators at the correctional institutions where each inmate is housed. 

The inmates Plaintiff is permitted to depose by written questions are identified by

Plaintiff by surname and DC Number: Reuter (#595303), Oakley (#120318), Levine

(#W25511), and Lawson (#726599).

3. The litigation coordinator (or other appropriate staff member) at the institution

where each inmate is housed shall swear in the inmate prior to his completion of

responses to the written deposition questions. 

4. After each inmate completes his responses to the written deposition

questions, the litigation coordinator or other appropriate staff member shall certify in

writing that the inmate identified as the deponent was in fact the inmate who responded

to the written deposition questions. The litigation coordinator or other appropriate staff

member shall then send the responses back to the D.O.C. Office of General Counsel.

5. The D.O.C. Office of General Counsel shall send each inmate’s deposition to

Plaintiff, Michael E. Rowan, at the correctional institution where he is housed.

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Plaintiff’s request to depose former warden Duane Spears (Doc. 46)

Plaintiff asserts that Duane Spears, the former warden at Taylor C.I., has

discoverable information relevant to this suit. Plaintiff appears to interpret Rule

31(a)(2)(A) to mean that he must seek leave of this Court to depose Mr. Spears

because the parties have not stipulated to the deposition, and thus he seeks this

Court’s leave to depose Mr. Spears by written questions. (Doc. 46). However, Rule 31

does not require Plaintiff to seek leave of Court to depose by written questions Mr.

Spears. None of the scenarios in Rule 31(a)(2)(A) are applicable to Plaintiff’s request.

Plaintiff is advised that he is required to comply with Rules of Civil Procedure and

neither the Defendants nor this Court are obligated to assist him with discovery. 

Plaintiff is responsible for submitting the written questions to the proposed deponent

notwithstanding obstacles to this deposition that exist due to Plaintiff’s incarceration,

including but not limited to the cost of hiring a court reporter.

Accordingly, upon due consideration, it is ORDERED: 

(1) Plaintiff’s Request for Leave of Court to Depose Persons Confined in the

Florida Department of Corrections (Doc. 42) is GRANTED. Plaintiff is granted leave to

depose by written questions Inmates Reuter, Oakley, Levine, and Lawson. The written

deposition questions shall be strictly limited to the subject matter and area of

inquiry identified in Plaintiff’s motion (Doc. 42).

(2) Plaintiff and the Department of Corrections are directed to comply with the

procedures as outlined above. The Clerk is directed to send a copy of this Order via

first-class mail to the Department of Corrections Office of General Counsel, 501 South

Calhoun Street, Tallahassee, FL 32399-2500.

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(3) Plaintiff’s Request for Leave of Court to Depose by Written Questions Duane

Spears (Doc. 46) is DENIED as MOOT.

(4) Plaintiff’s Motion for Ruling on Pending Motions Related to Discovery Process

(Doc. 59) is DENIED AS MOOT.

DONE AND ORDERED this 28 day of September 2011. 

th

s/Gary R. Jones 

GARY R. JONES

United States Magistrate Judge

Case No: 4:10-cv-00429-MP-GRJ

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