Wilson v. Simmons et al

Filing 66

ORDER that this matter is hereby CONTINUED from the March 8, 2021 mixed trial term and will be rescheduled in a future order. IT IS FURTHER ORDERED that Plaintiffs 60 Letter is construed as a Motion seeking the issuance of subpoenas and for copies of his summary judgment exhibits and is DENIED AS MOOT. Signed by Chief Judge Martin Reidinger on 2/22/2021. (Pro se litigant served by US Mail.)(kby)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:18-cv-00198-MR

JAMES A. WILSON,

)
)
Plaintiff,
)
)
vs.
)
)
BRETT SIMMONS, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court sua sponte on scheduling matters
and on pro se Plaintiff’s Letter [Doc. 60].
In light of the public health considerations more fully described in the
Standing Orders of the Chief Judge of the District [see Case No. 3:20-mc00048], and given both the Court’s reduced ability to obtain an adequate
spectrum of jurors and the reduced availability of attorneys and Court staff
to be present in courtrooms, the Court concludes that the jury trial of this
matter should be continued. The trial will be rescheduled in a future order.
In his Letter, the pro se incarcerated Plaintiff asks the Court to “help
[him] get [his] expert witnesses ready before … trial.” [Doc. 60 a 1]. The
Plaintiff identifies as expert witnesses: Dr. Blakely, a surgeon at UNC Chapel
Hill Hospital; Erica D. Whitted, a registered nurse at Central Prison at the

Case 3:18-cv-00198-MR Document 66 Filed 02/22/21 Page 1 of 3

time when Plaintiff was admitted there; and Anthony Cobbit, an inmate who
was in a hallway cage at the time of the alleged excessive force incident.1 It
appears that the Plaintiff may be attempting to request subpoenas to secure
these witnesses’ presence at trial. This request will be denied as moot in
that the March 8, 2021 trial has been continued. This denial is without
prejudice for the Plaintiff to seek subpoenas at a future date. The Plaintiff is
cautioned that, to support such a request, he will be required to show that he
can afford to the pay the costs related to obtaining these witnesses’
attendance at trial. See Fed. R. Civ. P. 45(b)(1) (fees2 and mileage must be
tendered for the issuance of subpoenas requiring a person’s attendance);
United States v. MacCollum, 426 U.S. 317, 321 (1976) (“expenditure of
public funds [on behalf of an indigent litigant] is proper only when authorized
by Congress.”); Pickens v. Lewis, 2017 WL 2198342, at *2 (W.D.N.C. May
18, 2017) (noting that 28 U.S.C. § 1915 does not authorize the payment of

1

Although the Plaintiff refers to these witnesses as experts, it appears that he intends to
call them as fact witnesses at trial. The record reveals that the Plaintiff was referred to
Dr. Blakey for his jaw fracture after the alleged use of force; Nurse Whitted had clinical
encounters with the Plaintiff after he was transferred to Central Prison for outside medical
treatment; and the Plaintiff appears to assert that Cobbit witnessed the use of force
incident. The Court notes that the Plaintiff has not provided addresses for Dr. Blakey and
Nurse Whitted and that no inmate named “Anthony Cobbit” appears in a search of the
North
Carolina
Department
of
Public
Safety’s
website.
See
https://webapps.doc.state.nc.us/opi/offendersearch.do?method=list; Fed. R. Ev. 201.
2

Witness fees do not apply to incarcerated witnesses. 28 U.S.C. § 1821(f).
2
Case 3:18-cv-00198-MR Document 66 Filed 02/22/21 Page 2 of 3

litigation expenses and “[o]rdinarily, the plaintiff must bear the costs of his
litigation … even in pro se cases.”).
In his Letter, the Plaintiff also asks the Court to assist him with “getting
[his] Exhibits back from the defendants….” [Doc. 60 at 1]. This request is
moot because, in an Order issued on February 5, 2021, the Court instructed
the Clerk to mail the Plaintiff a courtesy copy of his summary judgment
exhibits. [See Doc. 55].
IT IS, THEREFORE, ORDERED that this matter is hereby
CONTINUED from the March 8, 2021 mixed trial term and will be
rescheduled in a future order.
IT IS FURTHER ORDERED that Plaintiff’s Letter [Doc. 60] is construed
as a Motion seeking the issuance of subpoenas and for copies of his
summary judgment exhibits and is DENIED AS MOOT.
IT IS SO ORDERED.

Signed: February 22, 2021

3
Case 3:18-cv-00198-MR Document 66 Filed 02/22/21 Page 3 of 3