Harris v. Savannah Chatham Metropolitan Police Department

Filing 27

ORDER denying 24 Motion for Discovery. The Court DIRECTS counsel who prepared the limited Answer on behalf of the City and County to secure copies of the police incident reports pertainingto Harris arrest on July 13, 2017. Signed by Magistrate Judge G. R. Smith on 4/18/18. (jrb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF GEORGIA
SAVANNAH DIVISION
ERIC LATROY HARRIS,
Plaintiff,
v.
SCMPD (CNT AGENTS),
Defendants.

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FILED
Scott L. Poff, Clerk
United States District Court

By jburrell at 11:46 am, Apr 18, 2018

CV417-154

ORDER
Pro se plaintiff Eric Harris has alleged that he was subjected to
excessive force by unknown “CNT Agents” when he was arrested in
2017. Doc. 8 at 5 (Amended Complaint). The Court directed the United
States Marshal to serve the Complaint, and Chatham County, Georgia
(the County) and the City of Savannah, Georgia (the City) filed a limited
appearance and Answer on behalf of the police department and the
unnamed agents. Doc. 16. After unsuccessful attempts at discovery,
Harris moved the Court for an Order that defendants produce “any [and]
all police reports[,] any [and] all video / audio footage from body cameras
of officers involved in [his] arrest[, and] a list of all officers involved in
[his] arrest.” Doc. 24 at 1. When no opposition to the motion was timely

filed, the Court directed the defendants either to respond or show cause
why they did not. Doc. 25. No response to that Order has been filed.
In their limited Answer, the County and City assert that no proper
defendant has been named. Doc. 16 at 1 (asserting that “‘SCMPD (CNT
Agents)’ is not a legal entity subject to suit,” and the police department
itself “is not a legal subdivision of a state, municipal corporation or
county.”).

But, they also assert that “claims as alleged against CNT

Agents, in their individual capacities, are barred by the doctrine of
qualified immunity,” and that “CNT agents are entitled to absolute
quasi-judicial immunity in that CNT Agents were acting under the direct
orders of a judicial order [sic].” Id. at 2-3. Based on those assertions, it
appears that the responsive parties are in no doubt as to the identities of
the agents referred to in the Harris’ Complaint.

It is equally clear,

however, that those agents have not been properly served.
In the first place, Harris’ failure to specifically identify the agents
who arrested him is not fatal. A plaintiff may use a fictitious name to
denote a defendant where that defendant’s identity may be ascertained
through discovery. Dean v. Barber, 951 F.2d 1210, 1215-16 (11th Cir.
1992) (a plaintiff “may be able to describe an individual (e.g., the driver

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of an automobile) without stating his name precisely or correctly.”
(quotes and cite omitted)). This Court has noted, however, that “where a
plaintiff fails to discover the identity of John Doe defendants despite
adequate time to do so, claims against such defendants should be
dismissed.” McKnight v. McDuffie, 2007 WL 1087280 at * 4 (S.D. Ga.
April 9, 2007). The plaintiff cannot discharge that duty if he is denied
access to the information.
Harris’ request for a copy of the police report concerning the details
of his arrest, or even just a list of the officers involved, appears tailored
to identify the individual officers concerned, allow them to be served, and
move this case along.

The Court appreciates the procedural and

jurisdictional complexities occasioned by such a request when there is no
party who concedes effective service, but the Federal Rules mandate
efficiency. See Fed. R. Civ. P. 1. Accordingly, the Court will impose some
direction on this litigation.
The Court might construe Harris’ request for a discovery order as a
request for the issuance of a subpoena for documents, under Fed. R. Civ.
P. 45. Rule 45 is the proper avenue to seek discovery against a non-

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party, and the information Harris requests is clearly discoverable.1
However, that process seems to add needless complexity and expense at
this stage in the proceedings.2

The Court, therefore, DENIES his

current motion without prejudice. Doc. 24.
To avoid a more complicated and costly process, the Court
DIRECTS counsel who prepared the limited Answer on behalf of the
City and County to secure copies of the police incident reports pertaining
to Harris’ arrest on July 13, 2017. (Presumably those incident reports
1

His request for any discovery beyond the identities of the officers is premature. “A
court supervising prisoner pro se 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 at * 2 (S.D. Ga. Aug. 23, 2010). To the extent that
his motion requests any information beyond what is necessary to identify the proper
defendants, it is DENIED. Doc. 24. Once the proper defendants are identified, the
Court will establish a discovery plan that sets a deadline for further discovery.
2

The Court has been down the Rule 45 path with pro se parties before, and it is not
without inherent difficulties -- even without the additional impediments faced by a
plaintiff who is incarcerated. See, e.g., Wilkerson v. Georgia, 2015 WL 5449144, at * 2
(S.D. Ga. Sept. 10, 2015) (instructing the pro se plaintiff on the process for preparing
and serving a subpoena). The Court is particularly concerned, however, to avoid not
only burdening the United States Marshal with the difficulty and expense of serving
a subpoena, but also with sparing defense counsel (and their clients) the inevitable
problems associated with inartfully drafted Rule 45 subpoenas, the back-and-forth
objections and responses then likely to ensue, and the mounting costs of time and
money associated with the securing of basic information the plaintiff is undeniably
entitled to receive (and that, most certainly, he will ultimately receive). See 28
U.S.C. 1915(d) (where a plaintiff is authorized to proceed in forma pauperis, “[t]he
officers of the court shall issue and serve all process . . . .”); James v. Scriber, 2008
WL 3318879, at * 1 (E.D. Cal. Aug. 2008) (prisoner proceeding pro se and in forma
pauperis “is entitled to service of the [Rule 45] subpoena by the United States
Marshal.”). Despite the additional complexity and expense, if the information is not
produced in the manner the Court is directing here, then it will be forced to take
additional steps to protect Harris’ right to prosecute his claim.
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reflect the identities of the officers who effected the arrest, but if there
are other official reports that reflect those identities, counsel should
furnish those as well.) Counsel should file copies of those reports with
the Clerk within thirty days from the date of this Order.

If the

responding parties believe the records contain information which should
be protected from public disclosure, they are free to request that the
documents be sealed, pursuant to the Court’s Local Rule 79.7.
SO ORDERED, this 18th day of April, 2018.

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