GORDON v. CLARKSON et al

Filing 54

ORDER denying 53 Motion for subpoenas. Although discovery has expired as to Defendants Clarkson and Weller, and Defendant Troutman's discovery period is set to expire on September 1, 2024, discovery is REOPENED and EXTENDED as to all parties until October 1, 2024 by which time Defendants counsel shall seek to obtain the video footage. Dispositive motions will be due November 1, 2024. Ordered by US MAGISTRATE JUDGE CHARLES H WEIGLE on 8/30/2024 (elp) Modified on 8/30/2024 to delete duplicate language. (elp).

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
TOVORIS GORDON,
Plaintiff,
V.
REGINALD CLARK, et al.,
Defendants.

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Case No.: 5:23-cv-00361-CAR-CHW
Proceedings Under 42 U.S.C. § 1983
Before the U.S. Magistrate Judge

ORDER
Plaintiff Tovoris Gordon, pro se, filed this suit pursuant to 42 U.S.C. § 1983,
regarding his incarceration at Baldwin State Prison. (Doc. 1). All remaining Defendants
have answered the complaint. (Docs. 36, 37, 47). Now pending before the Court is
Plaintiff’s motion to subpoena security and body camera video footage. (Doc. 53). For the
reasons explained below, Plaintiff’s motion is DENIED. However, an extension of
discovery is warranted so that Defense counsel may confer with the Georgia Department
of Corrections and Defendants regarding the requested footage as directed below.
Pro se litigants are entitled to reasonable access to the courts, but they are “subject
to the relevant law and rules of court, including the Federal Rules of Civil Procedure.”
Moon v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). “Courts do and should show a
leniency to pro se litigants not enjoyed by those with the benefit of a legal education.” GJR
Investments, Inc. v. Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998) (citing
Powell v. Lennon, 914 F.2d 1459, 1463 (11th Cir. 1990)). However, “this leniency does

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not give a court license to serve as de facto counsel for a party.” GJR Investments, Inc. v.
Cnty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir. 1998).
In cases involving pro se litigants, particularly prisoner litigants, courts have a
responsibility to supervise the discovery process. Courts must pay special attention to the
use of the subpoena process to obtain third-party discovery under Rule 45. “A court
supervising prisoner pro so cases must prevent abuse of its subpoena power and, at the very
least, ensure that subpoenas are used for permissible purposes.” Keith v. Mayes, 2010 WL
3339041, * 1 (S.D.Ga., August 23, 2010) (citing Poole v. Lambert, 819 F.2d 1025, 1029
(11th Cir. 1987)). “A pro se plaintiff may be entitled to the issuance of a subpoena
commanding the production of documents from non-parties upon Court approval.” Wright
v. Young, 2012 WL 3024431, *1 (N.D.Fla., July 24, 2012). 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.” Id.
While video evidence of an incident involved in a lawsuit would certainly be within
the scope of discovery, Plaintiff’s motion fails because he has not provided the information
necessary to decide if his motion is appropriate. First, he has not provided a name or contact
information concerning the alleged video footage, other than the incident date. The Court
cannot issue a third-party subpoena to an unknown person. But even if Plaintiff had
provided this information, Plaintiff also failed to explain whether he attempted to seek the
video footage from Defendants in the regular course of discovery. This is a necessary step

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to disclose; otherwise, the Court cannot decide whether a motion for subpoenas should be
granted. Therefore, Plaintiff’s motion for subpoenas (Doc. 53) is DENIED at this time.
To avoid the unnecessary expense of serving third-party subpoenas at a later time,
counsel for Defendants are DIRECTED to confer with the Defendants and with
appropriate Georgia Department of Corrections staff to determine whether there were
cameras (stationary, mounted, hand-held, or body-worn) in use during the alleged use of
force incident on September 17, 2021, whether those cameras recorded the events alleged
by Plaintiff, whether those recordings have been preserved, and the identity of the
custodian of those recordings. If the recordings have not been preserved, Defendants will
be expected to explain in detail why the recordings have not been preserved.
Although discovery has expired as to Defendants Clarkson and Weller, and
Defendant Troutman’s discovery period is set to expire on September 1, 2024, discovery
is REOPENED and EXTENDED as to all parties until October 1, 2024 by which time
Defendants’ counsel shall seek to obtain the video footage as directed. If Defendants are
unable to obtain the video footage or evidence related to existence of such footage by that
date, the Court will reconsider whether to issue any necessary third-party subpoenas to
obtain the evidence. Unless further extended by the Court, dispositive motions will be due
November 1, 2024.
SO ORDERED, this 30th day of August, 2024.
s/ Charles H. Weigle_________
Charles H. Weigle
United States Magistrate Judge

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