McNeill v. Jhonson et al

Filing 109

ORDER re 107 Pro Se Response to Order to Show Cause, which is construed as a renewed Motion to subpoena trial witnesses and it is GRANTED in part and DENIED in part as stated in this Order. Signed by Senior Judge Graham Mullen on 6/7/2021. (Pro se litigant served by US Mail.)(eef)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL ACTION NO. 3:18-CV-00188-GCM
JAMES C. MCNEILL,
Plaintiff,
v.

ORDER

CEDRIC GRAHAM,
SUSAN MORRISON,
KARIEM LANE,
Defendants.

THIS MATTER is before the Court on the Plaintiff’s pro se “Response to the Court’s
May 4, 2021 Order Regarding Plaintiff’s Request that Subpoenas and Writs be Issued for
Witnesses,” (Doc. No. 107).
The incarcerated Plaintiff, who is proceeding in forma pauperis, filed this action pursuant
to 42 U.S.C. § 1983 with regards to the alleged excessive force at the Lanesboro Correctional
Institution. Trial has been scheduled for June 16, 2021. (Doc. No. 99).
The Plaintiff previously filed a Motion seeking to subpoena as trial witnesses: North
Carolina Department of Public Safety (“NCDPS”) inmates Jessie Lee Grooms, Selran Watford,
and Brandon Smith; and eight NCDPS employees. (Doc. No. 96). On May 4, 2021, the Court
issued an Order granting the Motion as to inmates Grooms and Watford; 1 denying as to inmate
Smith without prejudice for the Plaintiff to provide additional identifying information; and

1

The Court had ordered defense counsel to show cause why subpoenas ad testificandum should not be issued for
inmates Grooms and Watford’s attendance at trial, but this was withdrawn because the Court learned that these
witnesses are available to appear by video. (Doc. No. 101).

denying as to the NCDPS employees because the Plaintiff had failed to demonstrate his ability to
pay the cost of their attendance at trial. (Doc. No. 100).
The Plaintiff has now filed the instant “Response” which is construed as a renewed
Motion for the issuance of witness subpoenas for trial.
First, the Plaintiff provides additional identifying information for inmate Smith and he
names two additional inmates who he seeks to call as trial witnesses. The Plaintiff states that
inmate Smith is a Black male, around 30 years old, from Greensboro in Guilford County, who
was released from NCDPS in 2018 and was subsequently reincarcerated. The Court searched the
NCDPS website and has been unable to locate any inmate satisfying these criteria. The renewed
Motion will therefore be denied as to inmate Smith. The Plaintiff further seeks to call as
witnesses “Jhon Griffin,” who is incarcerated at Polk C.I.; and William, a Black male from
Fayetteville in Cumberland County, who was an inmate janitor at Lanesboro’s Lower Richmond
unit on October 27, 2017. A search of the NCDPS website reveals an inmate named John L.
Griffin, Jr., offender number 0603117, who is presently incarcerated at Polk C.I. The Motion
will be granted as to this witness, and defense counsel will be instructed to arrange for this
inmate’s appearance as a trial witness by video. If this is not the individual whom the Plaintiff
intends to call as a witness, he shall so inform the Court within five (5) days of this Order. The
Motion will be denied, however, as to inmate William, as the information the Plaintiff has
provided is too scant for the Court to identify this individual.
Second, the Plaintiff renews his request to call NCDPS employees as trial witnesses. He
states that he is indigent and asks the Court to fund the witness fees and mileage for these
witnesses. The Plaintiff has attached a copy of his prisoner inmate account to support his claim
of indigency, and asks the Court to bill him for these costs upon the entry of a favorable verdict.

This Motion will be denied because, as the Court informed Plaintiff in its May 4 Order, the
Plaintiff’s indigence does not excuse him from paying his own litigation expenses. See (Doc. No.
100).
IT IS, THEREFORE, ORDERED that:
1.

The Plaintiff’s “Response to the Court’s May 4, 2021 Order Regarding Plaintiff’s
Request that Subpoenas and Writs be Issued for Witnesses,” (Doc. No. 107), is
construed as a renewed Motion to subpoena trial witnesses and it is GRANTED
in part and DENIED in part as stated in this Order.

2.

Counsel for Defendants shall arrange for the following inmates’ availability to
testify at trial via video: Jessie Lee Grooms, offender number 0854714 (Scotland
C.I.); Selran Watford, offender number 0916688 (Avery-Mitchell C.I.); and John
L. Griffin, Jr., offender number 0603117 (Polk C.I.).

3.

The Clerk is further instructed to mail a copy of this Order to: Warden, Scotland
Correctional Institution, 22385 McGirts Bridge Road, Laurinburg, NC 28353;
Warden, Avery-Mitchell Correctional Institution, 600 Amity Park Road, Spruce
Pine, NC 28777; and Warden, Polk Correctional Institution, PO Box 2500, Butner,
NC 27509.

SO ORDERED.

Signed: June 7, 2021