Gathers v. Thomas

Filing 35

ORDER denying as moot without prejudice to 20 MOTION to Compel, 21 MOTION to Compel and 32 MOTION to Compel. Denying 32 MOTION for Extension of Time to Complete Discovery and denying 30 MOTION for issuance of Subpo ena. Defendant is directed to immediately, but no later than September 13, 2019, mail Plaintiff hard copies of the discovery responses and to file a certificate of service on the docket demonstrating the discovery has been served. (Specific Document due by 9/13/2019.) Signed by Magistrate Judge Shiva V. Hodges on 9/11/2019. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Travis Gathers,
Plaintiff,
vs.
Ryan Thomas,
Defendant.

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C/A No.: 0:19-1156-CMC-SVH

ORDER

Travis Gathers (“Plaintiff”), proceeding pro se and in forma pauperis,
brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his
constitutional rights. All pretrial proceedings in this case have been referred
to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local
Civ. Rule 73.02(B)(2)(f) (D.S.C.). This matter comes before the court on the
following motions filed by Plaintiff: (1) motions to compel discovery [ECF Nos.
20, 21, 32] and (2) motion for issuance of a subpoena [ECF No. 30].
In his first motions to compel discovery and production of documents
filed August 5, 2019 [ECF No. 20, 21], Plaintiff argues Defendant has failed
to respond to outstanding discovery. In his September 9, 2019 motion to
compel [ECF No. 32], he states that he received responses, but that they were
confiscated by New York prison officials because the mailing contained a red
USB device. Defendant is directed to immediately, but no later than
September 13, 2019, mail Plaintiff hard copies of the discovery responses and

to file a certificate of service on the docket demonstrating the discovery has
been served. Plaintiff’s motions to compel [ECF Nos. 20, 21, 32] are denied as
moot without prejudice to refile should Defendants fail to serve him with the
hard copies of the discovery.
In his September 9, 2019 motion, Plaintiff also requests an extension of
the scheduling order. [ECF No. 32].1 However, the deadline for the
completion of discovery expired on July 29, 2019. The deadline for dispositive
motions is September 30, 2019, and Plaintiff should be in receipt of the
discovery responses in ample time to respond to any dispositive motion filed
by Defendant. Therefore, Plaintiff’s motion for an extension of the scheduling
order [ECF No. 32] is denied.
Plaintiff also filed a motion for issuance of a subpoena to the York
County Clerk of Court for the transcript of an August 2018 hearing
dismissing indictments. Plaintiff’s motion was filed September 3, 2019, over
30 days after the deadline for discovery expired. Additionally, Plaintiff
tendered no payment for the requested documents nor demonstrated an
ability to pay in the future. There are costs associated with a subpoena for
documents, such as the cost of the copies and the cost of serving the
subpoena. See Badman v. Stark, 139 F.R.D. 601, 604 (M.D. Pa. 1991) (holding

Although Plaintiff’s motion states he is only requesting a 30-day extension,
the dates he requests reflect a 90-day extension.
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inmates proceeding under 28 U.S.C. § 1915 are not entitled to have their
discovery costs underwritten or waived); see also Nance v. King, No. 88-7286,
1989 WL 126533, at *1 (4th Cir. Oct. 18, 1989) (unpublished opinion).
Finally, Defendant’s response conceded the indictments were dismissed and
indicated he did not intend to rely on the indictments. [ECF No. 31]. For all of
these reasons, Plaintiff’s motion for issuance of a subpoena is denied.
IT IS SO ORDERED.
September 11, 2019
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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