Wilson v. Jacobs et al

Filing 92

ORDER denying motions seeking relief against non-parties 18 , 43 , 60 , 61 , 64 , and 75 ; denying 43 Motion to Appoint Counsel; denying Motions to Amend/Correct Amended Complaint 50 , 75 , and 77 ; denying Motions for Recusal 73 , 75 , and 77 ; denying Motions to Compel 60 , 64 , 73 , and 75 ; denying Motions for Contempt 64 , 75 , 77 , and 78 ; denying Motions for Hearing 61 , 64 , and 89 ; denying Motion for Extension of Time 60 ; and denying 52 Motion for Subpoena as to Investigator Matt Ellis with leave to re-file to provide the court with the additional information outlined within fourteen (14) days from the date of this order. Signed by Magistrate Judge Paige J Gossett on 8/3/2015. (gmil)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Thomas C. Wilson,

)
)
Plaintiff,
)
)
v.
)
)
T. Jacobs, M.D.; Wienglass, M.D.,
)
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Defendants.
)
_____________________________________ )

C/A No. 0:14-4006-TMC-PJG

ORDER

Plaintiff Thomas C. Wilson, a self-represented pretrial detainee, filed this civil action
pursuant to 42 U.S.C. § 1983. This matter is before the court on a multitude of motions filed by the
plaintiff. (ECF Nos. 18, 43, 50, 52, 60, 61, 64, 73, 75, 77, 78, 89.)
A.

Motions seeking relief from non-parties
As an initial matter, Wilson appears to seek various types of relief—including injunctive

relief and court sanctions—against individuals who are not parties in this action. Such relief, such
as asking the court to order that certain non-party staff allow him to use the telephone, is not
available. Accordingly, Wilson’s motions seeking relief against non-parties are hereby denied.
(ECF Nos. 18, 43, 60, 61, 64, 75.)
B.

Appointment of Counsel
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
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

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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 the plaintiff be denied due process if the court denied
plaintiff’s request for counsel. Id. Accordingly, Wilson’s motion requesting counsel under 28
U.S.C. § 1915(e)(1) is denied. (ECF No. 43.)
C.

Motion to Amend/Correct the Amended Complaint
Wilson files multiple motions in which he seeks to amend his Amended Complaint. (ECF

Nos. 50, 75, 77.) In his first motion, Wilson seeks to add two defendants whom he alleges were
deliberately indifferent to his medical needs in March 2015 when they allegedly refused him an extra
mattress. (ECF No. 50.)

Where the claim against a new defendant arises out of the same

transaction, occurrence, or series of transactions or occurrences and there is a common question of
fact or law, a plaintiff may join the new defendant into an existing action. See Fed. R. Civ. P.
20(a)(2). Wilson’s claims against these defendants do not arise out of the same transaction or
occurrence as his civil rights claims against the existing two physician defendants, which primarily
concern the medical care he received immediately following his May 2014 transfer from Connecticut
to the Al Cannon Detention Center in South Carolina and the Medical University of South Carolina.
Therefore, Wilson’s motion to amend is denied.
In his remaining motions to amend, Wilson appears to move to add Investigator Matt Ellis,
Sally Chickering, and Lashanda Hicks as defendants. These motions were filed after the expiration
of the deadline to amend/correct pleadings established by the court’s scheduling order, and Wilson

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has not presented any good cause to extend the deadline. 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 not require the proposed amendments under Rule 15(a)(2).
Accordingly, Wilson’s motions to amend are denied.
D.

Motions to Disqualify Defendants’ Counsel
Wilson moves to disqualify counsel for the defendants from this matter apparently on the

basis that counsel’s law firm has represented the Al Cannon Detention Center and the Charleston
County Sheriff’s Office in the past. (ECF Nos. 73, 75, 77.) The South Carolina Rules of
Professional Conduct state that, with certain exceptions, “a lawyer shall not represent a client if the
representation involves a concurrent conflict of interest.”1 SCACR 407, Rules of Prof. Conduct,
Rule 1.7.

The United States Court of Appeals for the Fourth Circuit has recognized that

disqualification of counsel is a drastic measure that is not subject to “overly-mechanical adherence
to disciplinary canons at the expense of litigants’ rights freely to choose their counsel.” Shaffer v.
Farm Fresh, Inc., 966 F.2d 142, 146 (4th Cir. 1992), cert. denied 506 U.S. 1021 (1992). However,
courts should “always remain mindful of the opposing possibility of misuse of disqualification
motions for strategic reasons.” Id. Accordingly, an individual seeking to disqualify an opposing

1

A concurrent conflict of interest exists if:

(1) the representation of one client will be directly adverse to another client; or
(2) there is a significant risk that the representation of one or more clients will be
materially limited by the lawyer’s responsibilities to another client, a former client
or a third person or by a personal interest of the lawyer.
SCACR 407, Rules of Prof. Conduct, Rule 1.7.
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party’s counsel “bears a high standard of proof to show that disqualification is warranted.” Buckley
v. Airshield Corp., 908 F. Supp. 299, 304 (D. Md. 1995) (quoting Tessier v. Plastic Surgery
Specialists, Inc., 731 F. Supp. 724, 729 (E.D. Va. 1990)).
Wilson has not presented evidence sufficient to meet his burden of proof that defendants’
counsel should be disqualified. Accordingly, his motions are denied.
E.

Motions to Compel, for Contempt, and for a Hearing
Wilson files several motions in which he alleges that he has not received requested discovery

documents. (ECF Nos. 60, 64, 73, 75.) He also asks for various individuals to be held in contempt
for not allowing him to keep his discovery documents and asks that the defendants be held in
contempt for providing incomplete discovery. (ECF Nos. 64, 75, 77, 78.) He further moves that a
hearing be held on these issues. (ECF Nos. 61, 64, 89.)
To the extent that Wilson moves for non-defendant individuals to deliver discovery
documents or to be held in contempt for not allowing him access to his discovery documents, as
addressed above, he has not brought any action conveying personal jurisdiction over these
non-parties, and thus Wilson’s motions seeking relief against non-parties are denied.
In response to Wilson’s motions to compel, the defendants argue and provide evidence that
they have produced voluminous amounts of discovery to Wilson, and that Wilson signed
Acknowledgments of Receipt of these documents on March 26, 2015 and on June 11, 2015 when
the defendants supplemented their prior document production. (See ECF Nos. 84-1 & 84-2.) The
defendants argue, and the court agrees, that to the extent Wilson seeks to compel the defendants to
further respond to his initial discovery requests, his motion is untimely pursuant to Local Civil Rule
37.01 (D.S.C.). According to the defendants, Wilson served additional discovery requests for the

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production of documents in May 2015, which they argue are untimely pursuant to the scheduling
order in this case. The court agrees. Accordingly, Wilson’s motions to compel are denied and, in
light of this ruling, Wilson’s requests for sanctions and for a hearing on these issues are also denied.
F.

Discovery Motions
Wilson appears to seek to depose defendants and non-party individuals as well as request

subpoenas duces tecum from non-party individuals and entities. (ECF No. 52.) Discovery in civil
cases filed in this court is governed by the Federal Rules of Civil Procedure. These rules are
applicable to all litigants including those who are proceeding pro se. According to Rule 26(b)(1) of
the Federal Rules of Civil Procedure, “[p]arties may obtain discovery regarding any nonprivileged
matter that is relevant to any party’s claim or defense.”
1.

Motion for Depositions

Except under certain circumstances in which leave of the court is required, see Fed. R. Civ.
P. 30(b)(2), a party may take an oral deposition of another person, including a party, without leave
of the court by serving written notice on the opposing party. See Fed. R. Civ. P. 30. The deponent’s
attendance may be compelled by subpoena pursuant to Rule 45. While Wilson’s motion is unclear
as to whether he is seeking subpoenas to enforce attendance at a deposition or whether he is simply
informing the court of his desire to depose these individuals, he does not specify if he has served any
notices of deposition upon the individuals prior to filing his motion pursuant to Rule 30(b)(1) of the
Federal Rules of Civil Procedure. Wilson is advised that subpoenas for the attendance at a
deposition cannot be enforced without proper prepayment of the appropriate witness and mileage
fees. See Fed. R. Civ. P. 45(b)(1). Moreover, he has made no showing as to how any of the
testimony he seeks is relevant to his claims and therefore within the scope of permissible discovery

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under the Federal Rules of Civil Procedure. Accordingly, to the extent Wilson seeks to depose
individuals or to subpoena their attendance at a deposition, his motion is denied.
2.

Motion for Subpoenas duces tecum

The court’s authorization of a subpoena duces tecum requested by an in forma pauperis
plaintiff is subject to limitations, including the relevance of the information sought as well as the
burden and expense to a person subject to the subpoena. See Fed. R. Civ. P. 26(b) & 45(d)(1);
Jackson v. Brinker, No. IP 91-471-C, 1992 WL 404537, at *7 (S.D. Ind. Dec. 21, 1992) (finding that
the court may refuse an indigent party’s request to have the United States Marshals Service serve a
Rule 45 subpoena duces tecum that is “frivolous, requests immaterial or unnecessary information,
is unduly burdensome, would be reasonably certain to result in the indigent’s responsibility for
significant compliance costs for which he cannot provide, or is otherwise unreasonable or abusive
of the court’s process”). The court notes that, although the plaintiff has been granted in forma
pauperis status pursuant to 28 U.S.C. § 1915(d), such status does not mean that the plaintiff’s
discovery expenses are underwritten or waived. See, e.g., Badman v. Stark, 139 F.R.D. 601, 604
(M.D. Pa. 1991) (holding that an indigent plaintiff seeking issuance of a subpoena must
simultaneously tender the witness fees and the estimated mileage allowed by law with the service
of the subpoena); see also 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.”). While the
plaintiff’s in forma pauperis status may permit service of a subpoena duces tecum by the United

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States Marshals Service without prepayment of the cost of service,2 the court must limit a plaintiff’s
discovery requests if the documents sought from the non-party are “cumulative or duplicative, or can
be obtainable from some other source that is more convenient, less burdensome, or less expensive.”
See Fed. R. Civ. P. 26(b)(2)(C); see also Badman, 139 F.R.D. at 605 (“The Federal Rules of Civil
Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual
expenses in order to comply with a subpoena duces tecum.”). Additionally, the plaintiff should
demonstrate that the requested records are obtainable only through the identified third party and that
he has made provisions to pay the reasonable costs associated with the discovery he seeks. See
Badman, 139 F.R.D. at 605; Sickler v. Curtis, No. 2:11-cv-0205, 2012 WL 3778941, at *2 (E.D. Cal.
Aug. 31, 2012).
In his current motion, Wilson seeks documents from four non-party individuals or entities:
(1) Matt Ellis, whom Wilson identifies as an investigator with the South Carolina Attorney General’s
Office; (2) Julie J. Armstrong, the Clerk of Court for Charleston County; (3) the Medical University
of South Carolina (“MUSC”); and (4) the Carolina Center for Occupational Health. Wilson appears
to seek his own medical records from Armstrong, MUSC, and the Carolina Center for Occupational
Health. As these documents are available to Wilson through a “more convenient, less burdensome,
or less expensive” manner, his request for subpoenas duces tecum as to these individuals or entities
is denied. See Fed. R. Civ. P. 26(b)(2)(C).

2

The plaintiff is advised that the cost of service by United States Marshals Service is
considered an item of cost which may, at the court’s discretion, be included as judgment against the
plaintiff at the conclusion of the action pursuant to 28 U.S.C. § 1915(f) if the plaintiff does not
prevail. See Flint v. Haynes, 651 F.2d 970, 972-73 (4th Cir. 1981); 28 U.S.C. §§ 1920, 1921(a)(1)
(stating that the court may tax as costs fees of the United States Marshals Service, such as the service
of subpoenas).
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With regard to Investigator Matt Ellis, Wilson has not presented the information necessary
for the issuance of a subpoena duces tecum. Specifically, Wilson must:
(1)

clearly identify what documents he is seeking and from whom;

(2)

explain how the requested documents are relevant to his case;

(3)

show that the requested documents are obtainable only through the identified
third party;

(4)

show that he has arranged for service of his proposed subpoenas duces tecum
pursuant to Rule 45 of the Federal Rules of Civil Procedure or, in the
alternative, provide the court with completed USM-285 forms so that service
can be effected by the United States Marshals Service (see 28 U.S.C.
§ 1915(d); see also Fed. R. Civ. P. 4(c)(3)); and

(5)

demonstrate to the court that he has made provision or has the funds
necessary to pay the subpoenaed party for the costs associated with the
production of the requested documents.

Wilson’s motion for a subpoena is therefore denied as to Investigator Matt Ellis with leave
to re-file to provide the court with the additional information outlined above within fourteen (14)
days from the date of this order. (ECF No. 52.) In light of this order, Wilson’s motion for an
extension of time of various scheduling order deadlines based on his assertion that nonparties are
withholding documents from him is denied. (ECF No. 60.)
IT IS SO ORDERED.
____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE
August 3, 2015
Columbia, South Carolina

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