Carson v. Sharpe et al

Filing 37

ORDER denying 36 Motion for an Order Compelling Discovery. Signed by Magistrate Judge Brian K. Epps on 07/21/2017. (thb)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
DUBLIN DIVISION
RASHAAD DANIEL CARSON,
Plaintiff,
v.
FELECIA SHARPE,
Defendant.

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CV 316-092

ORDER
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Plaintiff, an inmate at Hancock State Prison, commenced this case pursuant to 42 U.S.C.
§ 1983 concerning events alleged to have occurred at Wheeler Correctional Facility in Alamo,
Georgia. He is proceeding pro se and in forma pauperis (“IFP”). The matter is now before the
Court because Plaintiff filed a “Motion For An Order Compelling Discovery,” in which he seeks
an order compelling Defendant Sharpe to produce certain documents pursuant to Federal Rule
of Civil Procedure 34. (Doc. no. 36.) The filing does not contain a certificate of service, as is
required by Local Rule 5.1, showing that his motion was served on defense counsel. Nor does it
contain, as is required by Local Rule 26.5, a statement that Plaintiff has made a good faith effort
to resolve this discovery dispute with defense counsel.
Plaintiff previously received instructions about the requirements for his filings, including
the necessity for a certificate of service in accordance with Local Rule 5.1. (See doc. no. 9, p. 4.)
Even if Plaintiff had included a certificate of service, the motion to compel also runs afoul of
Local Rule 26.5, about which the Court previously informed Plaintiff:

If Plaintiff wishes to file a motion to compel pursuant to Fed. R. Civ. P. 37, he
should first contact the attorney for the defendant and try to work out the
problem; if Plaintiff proceeds with the motion to compel, he should file a
statement certifying that he has contacted opposing counsel in a good faith
effort to resolve any dispute about discovery. Loc. R. 26.5.
(Id. at 5.)
The duty-to-confer prerequisite is not an empty formality. Merritt v. Marlin Outdoor
Advert. Ltd., CV 410-053, 2010 WL 3667022, at *4 (S.D. Ga. Sept. 15, 2010). Failure to
include such good faith certification, or to make the requisite good faith effort, amounts to a
failure to comply with Federal Rule 37(a)(1) and Local Rule 26.5 and warrants denial of the
discovery motion. See Holloman v. Mail-Well Corp., 443 F.3d 832, 844 (11th Cir. 2006)
(affirming denial of discovery motion based on “a failure to work with the defendants in
good faith” during discovery process); Haynes v. JPMorgan Chase Bank, N.A., 466 F. App’x
763, 765-66 (11th Cir. 2012) (affirming denial of motion to compel where movant failed to
consult in good faith with opponent before filing motion); see also Layfield v. Bill Heard
Chevrolet Co., 607 F.2d 1097, 1099 (5th Cir. 1979)1 (holding that failure to comply with the
Local Rules may result in summary denial of a motion). Accordingly, the Court DENIES
Plaintiff’s motion (doc. no. 36) based on the failure to comply with the service requirement of
Local Rule 5.1 and the good faith requirement of Local Rule 26.5, which incorporates the
requirements of the Federal Rules of Civil Procedure.

1

In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
Eleventh Circuit adopted as binding precedent all Fifth Circuit decisions that were handed down
prior to the close of business on September 30, 1981.
2

Although the motion is denied in its current form, the Court is aware these are the
same six discovery requests that Plaintiff first mistakenly sent to the Court, rather than
defense counsel, on March 30, 2017. (See doc. nos. 29, 32.) The instant motion suggests
Plaintiff has agreed to drop several categories of requested production. (See doc. no. 36, p.
2.) The Court is confident the parties can work cooperatively to resolve any remaining
disputes, keeping in mind that even pro se litigants who are proceeding IFP must bear their
own discovery expenses.

While 28 U.S.C. § 1915(a) permits a pauper to commence

litigation without prepayment of the filing fee, “no provision of that statute ‘authorizes courts
to commit federal monies for payment of the necessary expenses in a civil suit brought by an
indigent litigant.’” Doye v. Colvin, CV 408-174, 2009 WL 764980, at * 1 (S.D. Ga. Mar.
23, 2009) (citing Tabron v. Grace, 6 F.3d 147, 158-59 (3d Cir. 1993)); see also Wanninger v.
Davenport, 697 F.2d 992, 994 (11th Cir. 1983) (agreeing that “a prisoner’s right of access to the
court does not include the right of free unlimited access to a photocopying machine . . . .”).

SO ORDERED this 21st day of July, 2017, at Augusta, Georgia.

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