James v. Scarborough et al

Filing 103

ORDER: It is ordered that Plaintiff's 24 motion to compel be granted and the following motions be denied: (1) Plaintiff 79 Motions to Compel; (2) Plaintiff's 35 , 43 , and 50 Motions for Subpoenas; (3) Plaint iffs 36 Motion for a Physical and Mental Examination; (4) Plaintiff's 41 Motion for and Extension of time to Complete Discovery and for Sanctions; (5)Plaintiff's 76 Motion to Transfer to Charleston County Detention Center; and (6) Plaintiff's 81 Motion to Amend the Complaint. Signed by Magistrate Judge Shiva V Hodges on 11/10/2011.(sste )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Anthony James, #310987, a/k/a Anthony
Glenn James, Jr.,
Plaintiff,
vs.
Lt. Wonda Scarborough and Anthony J.
Padula, Warden of Lee Correctional
Institution,
Defendants.

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C/A No.: 1:10-2794-HMH-SVH

ORDER

Plaintiff, proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. §
1983, alleging violations of his constitutional rights while incarcerated at Lee
Correctional Institution (“LCI”) in the custody of the South Carolina Department of
Corrections (“SCDC”). Plaintiff alleges defendant Wonda Scarborough used excessive
force on him on October 2, 2009 (“subject incident”) in violation of his constitutional
rights. Before the court are the following motions: (1) Plaintiff’s Motions to Compel
[Entry #24, #79]; (2) Plaintiff’s Motions for Subpoenas [Entry #35, #43, #50]; (3)
Plaintiff’s Motion for a Physical and Mental Examination [Entry #36]; (4) Plaintiff’s
Motion for an Extension of Time to Complete Discovery and for Sanctions [Entry #41];
(5) Plaintiff’s Motion to Transfer to Charleston County Detention Center [Entry #76]; and
(6) Plaintiff’s Motion to Amend the Complaint [Entry #81]. All pretrial proceedings in
this case were referred to the undersigned pursuant to the provisions of 28 U.S.C. §
636(b) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.).

I.

Plaintiff’s motions to compel
Plaintiff’s first motion to compel [Entry #24] seeks responses to discovery he

allegedly served on Scarborough on February 15, 2011. Scarborough has not filed a
response to Plaintiff’s motion. Therefore, Scarborough is directed to serve responses to
Plaintiff’s discovery by December 8, 2011.1
Plaintiff’s second motion to compel [Entry #79] seeks information from the
SCDC, a non-party, related to the investigation of the subject incident. Because the
SCDC is not a party to this action, Plaintiff may not obtain the requested information
through a motion to compel. Plaintiff may serve a subpoena on the SCDC requesting
such information by contacting the Clerk of Court and providing the Clerk’s office with a
completed Form AO 88 (Subpoena in a Civil Case), together with the necessary costs or
fees. Therefore, because the SCDC is not a party to this action and Plaintiff has not
indicated it was previously properly-served with a subpoena, Plaintiff’s motion to compel
[Entry #79] is denied.
II.

Plaintiff’s motions for subpoenas
Plaintiff has filed three motions for subpoenas [Entry #35, #43, #50], for which he

seeks documents, testimony, and a third-party witness to report to the undersigned.
Although Plaintiff has been granted in forma pauperis status, it is well-settled that a grant
of such status does not mean that an “in forma pauperis plaintiff’s discovery [or other
1

To the extent Plaintiff seeks more detailed responses from defendant Anthony J.
Padula, his request is denied, as Padula was dismissed from this action pursuant to the
Plaintiff’s stipulation of dismissal. [Entry #49].
2

court] costs either are underwritten or are waived.” Badman v. Stark, 139 F.R.D. 601, 604
(M.D.Pa. 1991); Boring v. Kozakiewicz, 833 F.2d 468, 473–75 (3rd Cir. 1987) (district
court not required to pay for plaintiffs’ expert medical witness); Johnson v. Hubbard, 698
F.2d 286, 289–91 (6th Cir. 1983) (lower courts have no duty to pay for witness fees in
civil, non-habeas corpus cases); see generally United States Marshals Service v. Means,
741 F.2d 1053, 1057 (8th Cir. 1984) (en banc) (in forma pauperis grant under § 1915 does
not require courts of the United States to pay witness fees and other costs for indigent
plaintiffs in § 1983 actions). Therefore, because Plaintiff has not tendered the witness
fees and payment for costs for service of the subpoenas,2 Plaintiff’s motions for
subpoenas [Entry #35, #43, #50] are denied. If Plaintiff wishes to obtain subpoenas, he
may do so by contacting the Clerk of Court and providing the Clerk’s office with a
completed Form AO 88 (Subpoena in a Civil Case), together with the necessary witness
fees.
III.

Plaintiff’s motion for a physical and mental evaluation
In his motion for a physical and mental evaluation [Entry #36], Plaintiff requests

an examination by a physician from the Medical University of South Carolina (“MUSC”),
because he believes the SCDC medical staff is discriminating against him because he is
from Charleston, South Carolina. Plaintiff’s basis for requesting such an examination
does not appear to be related to this case. Plaintiff cannot bypass the SCDC grievance

2

The undersigned notes, without deciding, that Plaintiff would not necessarily be
entitled to the subpoena if he had tendered the witness and mileage fees.
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process by bringing grievances unrelated to the subject incident. Therefore, Plaintiff’s
request for a physical and mental evaluation by a physician at MUSC [Entry #36] is
denied.
IV.

Plaintiff’s motion for an extension of time for discovery and for sanctions
In his motion [Entry #41], Plaintiff sought an extension for discovery and

reiterated his request for discovery as previously sought in his motion to compel [Entry
#24]. It appears that Plaintiff’s motion is now moot, and is therefore denied [Entry #41].
Plaintiff’s request for $3,500 in costs as a sanction for Scarborough’s alleged failure to
comply with discovery is also denied.
V.

Plaintiff’s motion to transfer
Plaintiff filed a motion to transfer [Entry #76] seeking to transfer to the Charleston

County Detention Center, for reasons that appear unrelated to the subject incident. In any
event, there is no constitutional right for a state or federal prisoner to be housed in a
particular institution, at a particular custody level, or in a particular portion or unit of a
correctional institution. See Olim v. Wakinekona, 461 U.S. 238 (1983); Ange v. Paderick,
521 F.2d 1066 (4th Cir. 1975). The placement and assignment of inmates into particular
institutions or units by state or federal corrections departments are discretionary
functions, and are not subject to review unless state or federal law places limitations on
official discretion. Hayes v. Thompson, 726 F.2d 1015, 1016–1017 & n. 1 (4th Cir. 1984).
Therefore, Plaintiff’s motion to transfer [Entry #76] is denied.

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VI.

Plaintiff’s motion to amend the complaint
Plaintiff’s motion to amend [Entry #81] seeks to amend his complaint to assert

claims against multiple additional defendants related to the details of his placement on
suicide watch, an incident unrelated to the subject incident. Additionally, one of the
defendants Plaintiff seeks to add is Warden Padula, who Plaintiff previously stipulated to
dismiss from this action. [Entry #49]. “[L]eave [to amend] shall be freely given when
justice so requires.” Fed. R. Civ. P. 15(a). “A motion to amend should be denied only
when the amendment would be prejudicial to the opposing party, there has been bad faith
on the part of the moving party, or the amendment would be futile.” HCMF Corp. v.
Allen, 238 F.3d 273, 276 (4th Cir. 2001) (internal quotation marks omitted). Plaintiff’s
motion to amend the complaint was filed almost six months after the expiration of the
deadline to add additional parties and concerns claims unrelated to his claims against
Scarborough.

Specifically, Plaintiff’s claims against Scarborough have been pending

since October 29, 2010, and Plaintiff filed his motion on September 8, 2011 to add the
unrelated claims against defendants other than Scarborough. Because the case against
Scarborough has progressed through discovery and dispositive motions and is
approaching trial, it would be prejudicial to Scarborough to allow Plaintiff to now amend
to add the unrelated claims against other defendants. Therefore, Plaintiff’s motion to
amend the complaint [Entry #81] is denied.

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III.

Conclusion
For the foregoing reasons, it is ordered that Plaintiff’s motion to compel [Entry

#24] be granted and the following motions be denied: (1) Plaintiff’s Motions to Compel
[Entry #79]; (2) Plaintiff’s Motions for Subpoenas [Entry #35, #43, #50]; (3) Plaintiff’s
Motion for a Physical and Mental Examination [Entry #36]; (4) Plaintiff’s Motion for
and Extension of time to Complete Discovery and for Sanctions [Entry #41]; (5)
Plaintiff’s Motion to Transfer to Charleston County Detention Center [Entry #76]; and (6)
Plaintiff’s Motion to Amend the Complaint [Entry #81].
IT IS SO ORDERED.

November 10, 2011
Florence, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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