Wilson v. Pope
ORDER adopting Report and Recommendations re 22 Report and Recommendations and denying 14 Motion for Preliminary Injunction. Ordered by Judge C. Ashley Royal on 8/17/11 (lap)
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
DONALD PAUL WILSON,
Sheriff GENE POPE,
Civil Action No. 5:11‐cv‐176
28 U.S.C. ' 2254
ORDER ON UNITED STATES MAGISTRATE JUDGE=S ORDER AND
Before the Court is United States Magistrate Judge Charles Weigle’s Order and
Recommendation [Doc. 22] in which Judge Weigle denies two of Petitioner’s Motions
[Docs. 13 and 17] by Order and recommends denial of Petitioner’s Motion for injunctive
relief [Doc. 14] by Recommendation. Petitioner filed an Objection [Doc. 24] and a
Memorandum in support of his Objection [Doc. 26] in which he objects only to that
portion of Judge Weigle’s Order denying Petitioner’s Motion for Subpoena Duces
No objection to the Recommendation
Petitioner does not object to Judge Weigle’s recommendation that the Court deny
Petitioner’s request to transfer him to a federal minimum security facility and to order
Butts Country Superior Court Judge Tommy Wilson to cease harassing him. Having
reviewed the Recommendation, the Court agrees with the Magistrate Judge that neither
allegation supports this Court granting a preliminary injunction.
Objection to the Order
The Petitioner does object to that portion of Judge Weigle’s Order denying
Petitioner’s Motion for Subpoena Duces Tecum. Because this objection relates to a
non‐dispositive matter, the Court will only modify or set aside that portion of the Order
if it is “clearly erroneous or . . . contrary to law.” Fed. R. Civ. P. 72(a).
In his Motion, Petitioner requests that the Court order “respondent [Sheriff Gene]
Pope to appear before the Court to produce any and all records, under a court ordered
subpoena duces tecum involving petitioner’s cases.” Because the request was too
broad, the Magistrate Judge found that Petitioner failed to establish the necessary “good
cause” to allow discovery in this habeas case.
The Court finds the denial to be appropriate and not contrary to the law.
Although in his Objection Petitioner more clearly identifies the documents his seeks
Respondent to file with the Court, Petitioner made this discovery request prior to
Respondent being served with the habeas petition. Respondent has since been served
and has recently filed an Answer. If Petitioner still seeks the production of the
documents he identifies in his Objection, he must file a separate motion upon which the
Court would evaluate under the “good cause” standard and in conjunction with the
Respondent’s Answer. See Rule 6(a), Rules Governing § 2254 Cases (Leave of Court is
required to conduct discovery in a habeas case and will be granted only if the requesting
party shows good cause).
In his Objection, Petitioner also takes issue with the Magistrate Judge’s
observation that because Petitioner has had at least four prior civil actions that have been
dismissed as frivolous, he must pay the entire $350.00 filing or demonstrate that he is in
imminent danger of serious physical injury if he wishes to file a separate complaint
pursuant to 42 U.S.C. § 1983. Petitioner’s arguments, however, are inappropriate and
irrelevant to his habeas petition. In the event Petitioner files a separate action pursuant
to 42 U.S.C. § 1983, he may raise any such arguments in conjunction with that action.
For the reasons explained above, the Order and Recommendation [Doc. 22] is
HEREBY ADOPTED AND MADE THE ORDER OF THE COURT.
SO ORDERED, this 17th day of August, 2011.
S/ C. Ashley Royal
C. ASHLEY ROYAL
UNITED STATES DISTRICT JUDGE
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