BENNING v. DOZIER et al

Filing 126

ORDER denying 125 Motion issuance and service of subpoenas. Ordered by US MAGISTRATE JUDGE CHARLES H. WEIGLE on 10/19/2023 (tlf).

Case 5:18-cv-00087-TES-CHW Document 126 Filed 10/19/23 Page 1 of 3

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
RALPH HARRISON BENNING,

:
:
Plaintiff,
:
:
v.
:
:
Commissioner GREGORY DOZIER
:
:
Defendant.
:
_______________________________________:

Case No. 5:18-cv-087-TES-CHW

Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge

ORDER
Before the Court is Plaintiff’s motion for issuance and service of subpoena. (Doc. 125). In
anticipation of a hearing set for November 8, 2023, before the District Court, Plaintiff requests a
subpoena be issued for Jennifer Amos, General Counsel of Georgia Department of Corrections
(GDOC), directing her to produce a series of documents concerning GDOC’s SOP 204.10 and to
appear at the hearing. (Id.)
Pro se litigants are entitled to reasonable access to the courts, and that includes the ability
to compel nonparties to produce relevant documents, electronically stored information, and other
tangible things pursuant to Rule 45 of the Federal Rules of Civil Procedure. See Wright v. Young,
2012 WL 3024431 at *1 (N.D. Fla. 2012) (citing Moon v. Newsome, 863 F.2d 835, 837 (11th Cir.
1989)). In cases involving pro se prisoner litigants, courts retain the responsibility to supervise the
discovery process, and must prevent the use of the subpoena power for abusive purposes. Keith v.
Mayes, 2010 WL 3339041 at *1 (S.D. Ga. Aug. 23, 2010) (citing Poole v. Lambert, 819 F.2d 1025,
1029 (11th Cir. 1987)). A request for the issuance of a subpoena should be granted only if the
request is within the proper scope of discovery and “the documents sought are not equally available
from [the defendant] through a request for production of documents.” Wright, 2012 WL at *1.

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Case 5:18-cv-00087-TES-CHW Document 126 Filed 10/19/23 Page 2 of 3

While some of the items Plaintiff seeks may be germane to the motion hearing, Plaintiff’s
request is deficient for two reasons. First, while this case is not in a traditional discovery posture,
Plaintiff has not shown why the requested documents are not available from Defendant and has
not described any attempts to seek them from Defendant before going through a third-party, Ms.
Ammons. Second, Plaintiff makes no mention of how he will pay for the costs of production of
the requested documents or for Ms. Ammons’s appearance. Plaintiff states only that “[a]ll fees and
costs for issues and service to be handled in accordance with the in forma pauperis statute.” (Doc.
125, p. 2).
Plaintiff’s in forma pauperis status does not alleviate Plaintiff’s responsibility to fund the
costs of litigation like any other litigant. If the Court issued the subpoena as requested and the U.S.
Marshals Service served it, Plaintiff would still be responsible to pay Ms. Ammons’s witness fees
and mileage pursuant to Rule 45(b)(1) and the costs associated with his request for the production
of documents, such as copying or printing costs, because the in forma pauperis statute does not
excuse a plaintiff’s obligation to pay for these costs. See Easley v. Dep't of Corr., 590 F. App'x
860, 868 (11th Cir. 2014) (citing Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (“There is no
provision in [§ 1915] for the payment by the government of the costs of … litigation expenses,
and no other statute authorizes courts to commit federal monies for payment of the necessary
expenses in a civil suit brought by an indigent litigant”)). The in forma pauperis statute only refers
to “court fees” and “[n]either defendants nor the district court [is] obligated to advance” the costs
of discovery or litigation. Id. Pursuant to the Court’s responsibility to oversee the discovery
process and the issuance of subpoenas, the Court cannot grant Plaintiff’s request at this time
without assurance that the statutory fees will be paid and that Plaintiff has the ability to pay for
costs associated with producing the requested documents.

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Case 5:18-cv-00087-TES-CHW Document 126 Filed 10/19/23 Page 3 of 3

Based on the foregoing, at present, Plaintiff’s motion for issuance and service of subpoena
(Doc. 125) is DENIED.
SO ORDERED, this 19th day of October, 2023
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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