Fletcher v. Trusdale

Filing 46

ORDER denying without prejudice the plaintiff's 26 37 motions for the issuance of subpoenas. Signed by Magistrate Judge Paige J. Gossett on 12/6/2017. (bgoo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Henry Fletcher,

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)
Plaintiff,
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v.
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Sgt. Jackie Trusdale,
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Defendant.
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_____________________________________ )

C/A No. 0:17-1604-MBS-PJG

ORDER

Plaintiff Henry Fletcher, a self-represented prisoner, filed this civil action pursuant to 42
U.S.C. § 1983 against the named defendant. This matter is before the court on the plaintiff’s
motions for subpoenas. (ECF Nos. 26 & 37.) In his motions, the plaintiff appears to request
discovery from entities that are not parties in this action, and appears to seek subpoenas for
witnesses.
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, unless otherwise limited by
court order, “Parties may obtain discovery regarding any nonprivileged matter that is relevant to any
party’s claim or defense.”
To the extent that the plaintiff seeks to obtain documents or other materials from a nonparty,
he may do so via a subpoena 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.

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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
States Marshals Service without prepayment of the cost of service,1 the court must limit a plaintiff’s
discovery requests if the documents sought from the nonparty 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

1

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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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 she 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 motions, the plaintiff has not presented all of the information necessary for the
issuance of a subpoenas duces tecum. Specifically, the plaintiff 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.

Accordingly, to the extent the plaintiff seeks document production from nonparties, his
motions are denied with leave to timely re-file to provide the court with the additional information
outlined above. To the extent the plaintiff seeks issuance of trial subpoenas, his request is denied
as premature without prejudice to refile his motion at the appropriate stage of litigation.

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IT IS SO ORDERED.

December 6, 2017
Columbia, South Carolina

____________________________________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE

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