Smyth v. Urch et al

Filing 118

ORDER denying 26 Motion Full Disclosure, 27 Motion Retain All Legal Documents filed by Keith A Smyth, 28 Motion Right to Purchase Supplies filed by Keith A Smyth, 29 Motion To Be Treated Equally and Rehoused in Another Pod, 37 Motion To Rec eive All Plaintiff's Unopened Mail, 43 Motion for issuance of Subpoena, 47 Motion to receive unopened mail, 49 Motion for Discovery, 60 Motion for issuance of Subpoena, 61 Motion for issuance of Subpoena, 62 Motion for issuance of Su bpoena, 65 Motion for Discovery, 66 Motion for Discovery, 68 Motion to Amend/Correct, 72 Motion for US Marshals to be guards, 74 Motion for Default Judgment as to Neal Urch, J. Brock, K. Ashley, 76 Motion for issuance of Subpoena, 78 Mo tion to Amend/Correct, 82 Motion for Discovery, 90 Motion for DHEC investigation of Spartanburg County Detention Facility, 91 Motion to Amend/Correct, 96 Motion to keep more than 3 inches of legal mail, 99 Motion for inspection of jail, [10 0] Motion to keep more than 3 inches of legal mail in cell, 101 Motion for US Marshals to be guards and for technology and Motion for Default Judgment as to Neal Urch, J. Brock, K. Ashley and Motion for issuance of Subpoena, 106 Motion to get req uested copies of documents, 109 Motion to Stay, 111 Motion to Appoint Counsel, 112 Motion for relief from discipline and Motion for Mental Examination, 113 Motion for DHEC Inspection; denying as futile 41 Motion to Amend/Correct; denying wi thout prejudice 77 Motion to Request technology, 93 Motion for issuance of Subpoena, 96 Motion for Hearing, and 117 Motion for Hearing; terminating as moot 36 Motion to Serve Defendants and 48 Motion to Serve Defendants; granting in part 98 Motion for Extension of Time, 103 Motion for Extension of Time, and 106 Motion for Extension of Time. Motions Deadline reset for March 20, 2015. Signed by Magistrate Judge Paige J Gossett on 1/28/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Keith Adger Smyth,

)
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Plaintiff,
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)
v.
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Major Neal Urch; PREA Amandy Blanton;
)
William J. Church; Deputy J. Brock; Deputy )
K. Ashley,
)
)
Defendants.
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_____________________________________ )

C/A No. 0:14-3476-RBH-PJG

ORDER

Plaintiff Keith Adger Smyth, a self-represented pretrial detainee, filed this action pursuant
to 42 U.S.C. § 1983 alleging a violation of his constitutional rights. This matter is before the court
pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) DSC on a multitude of motions
filed by Smyth.
I.

Motions to Amend/Correct Complaint (ECF Nos. 41, 68, 78, & 91).
Smyth’s motion (ECF No. 41) does not appear to add new factual averments, claims, or

parties, but rather reiterates claims raised in his initial and Amended Complaint. Therefore, this
document is more appropriately considered as a brief in support of Plaintiff’s claims. Accordingly,
this motion is denied as futile. See Foman v. Davis, 371 U.S. 178 (1962).
Smyth’s additional motions to amend/correct are untimely pursuant to the deadlines
established by the court’s Scheduling Order (ECF No. 52). Smyth has offered no cause to extend
the expired deadlines. See Nourison Rug Corp. v. Parvizian, 535 F.3d 295, 298 (4th Cir. 2008)
(“[A]fter the deadlines provided by a scheduling order have passed, the good cause standard must
be satisfied to justify leave to amend the pleadings.”). Furthermore, the court finds that justice does
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not require the proposed amendment under Rule 15(a)(2). Accordingly, Smyth’s motions to
amend/correct his Amended Complaint are denied.
II.

Motions for Investigations and Security (ECF Nos. 72, 90, 99, 101, & 113).
To the extent Smyth requests that the court order an investigation or direct the United States

Marshals Service to assist him in proving his case, such request is denied. See Tabron v. Grace, 6
F.3d 147, 159 (3d Cir. 1993) (“There is no provision in [28 U.S.C. § 1915] for the payment by the
government of the costs of deposition transcripts, or any other litigation expenses, and no other
statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil
suit brought by an indigent litigant.”). To the extent Smyth requests that the court itself “investigate”
conditions at the detention center, such request is denied, as it is inappropriate for the court to engage
in independent factual investigation. See Rasberry v. Spradling, 558 F.2d 257, 257 (5th Cir. 1977)
(holding that the district court’s acceptance of a recommendation to dismiss did not comport with
the Federal Rules of Civil Procedure or governing case law where the magistrate judge did not rule
on the sufficiency of the complaint but rather conducted an independent, ex parte factual
investigation, including interviews of one or more witnesses). Accordingly, these motions are
denied.
III.

Motions for Discovery (ECF Nos. 26, 43, 49, 61, 62, 65, 66, 74, 76, 77, 82, 93, & 96).
In his motions, Smyth appears to request various documents from the defendants. Absent

a dispute, the court generally does not enter the discovery process, which is detailed in the Federal
Rules of Civil Procedure. See generally Fed. R. Civ. P. 26 through 37; see also Fed. R. Civ. P. 45.
Smyth is advised that he does not need specific authorization from the court to obtain discovery from
the defendants. Rather, he should direct his discovery requests to the counsel of record for the
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defendants. If Smyth is dissatisfied with the responses he receives from the defendants, he may then
file a motion to compel.1 See Local Civil Rule 37.01 DSC. Thus, to the extent Smyth requests
discovery, his motions are premature are therefore denied.
Smyth also files a motions in which he seeks issuance of trial subpoenas as opposed to
subpoenas duces tecum, a motion requesting various technology be available during his trial, and a
motion for a hearing on his discovery motions. (ECF Nos. 77, 93, 96, & 117.) These requests are
also premature and are denied without prejudice to refile at the appropriate stage of litigation.
IV.

Motions to serve the defendants (ECF Nos. 36 & 48).
The Clerk of Court is directed to terminate these motions as moot, as the defendants in the

matter have been served with process.
V.

Motions for supplies or canteen items, to keep legal papers and mail in cell , and to be
housed in a particular pod (ECF Nos. 27, 28, 29, 37, 47, 49, 60, 61, 96, 100, 101, 106,
112, & 117).
The relief requested by Smyth in these motions mirrors allegations raised in his Complaint,

as amended. Accordingly, to the extent Smyth circuitously attempts to obtain such relief, his
motions are denied. To the extent Smyth attempts to raise new allegations or challenge additional
detention center policies, Smyth must file a separate action if he wishes to pursue such claims.
VI.

Motion to appoint counsel (ECF No. 111).
There is no right to appointed counsel in § 1983 cases. Hardwick v. Ault, 517 F.2d 295 (5th

Cir. 1975). The court may use its discretion to request counsel to represent an indigent in a civil

1

Smyth’s motion for default judgment (ECF No. 74) appears to seek to compel discovery
from the defendants, alleging that they are taking too long to respond to his requests. The defendants
respond in opposition to this motion, stating that they have not been properly served with any
discovery request. Accordingly, Smyth’s motion seeking to compel discovery requests is denied.
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action. See 28 U.S.C. § 1915(e)(1); Mallard v. United States Dist. Court for S. Dist. of Iowa, 490
U.S. 296 (1989). However, such discretion “should be allowed only in exceptional cases.” Cook
v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Whether exceptional circumstances are present
depends on the type and complexity of the case, and the pro se litigant’s ability to prosecute it.
Whisenant v. Yuam, 739 F.2d 160 (4th Cir. 1984), abrogated on other grounds by Mallard, 490 U.S.
296.
Upon review of the file, the court has determined that there are no exceptional or unusual
circumstances presented at this time, nor would Smyth be denied due process if the court denied his
request for counsel. Id. Accordingly, Smyth’s motion requesting counsel under 28 U.S.C.
§ 1915(e)(1) is denied.
VII.

Motions requesting extensions or to stay case (ECF Nos. 98, 103, 106, & 109).
In his motions, Smyth requests an extension of time in which to complete discovery. As

previously discussed, the defendants have stated that they have not been properly served with any
discovery request. Smyth shall therefore direct any discovery requests to the counsel of record for
the defendants on or before February 11, 2015. The defendants shall respond in accordance with
the Federal Rules of Civil Procedure and the Local Rules of this court. Additionally, the deadline
in which to file all other motions, except those to complete discovery and those nonwaivable motions
made pursuant to Fed. R. Civ. P. 12, is extended to March 20, 2015. (Fed. R. Civ. P. 16(b)(2)). In
light of these extensions, Smyth’s motions to stay his case are denied.
IT IS SO ORDERED.

January 28, 2015
Columbia, South Carolina

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
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