Smith v. Spivey et al

Filing 18

ORDER denying 16 Motion to Appoint Counsel ; denying 17 Motion for Subpoenas. Signed by Magistrate Judge Shiva V Hodges on 5/15/2012.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Gregory V. Smith,
Plaintiff,
vs.
P.E. Spivey, Jail Director, Individual
and Official Capacity; Chris Phillips,
Detective, Individual and Official ,
Defendants.

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C/A No.: 1:12-29-RBH-SVH

ORDER

Plaintiff, a pretrial detainee proceeding pro se, brought this civil rights action

pursuant to 42 U.S.C. § 1983 alleging numerous violations of his constitutional rights.
Before the court are the following motions: (1) Plaintiff’s motion to appoint counsel
[Entry #16]; and (2) Plaintiff’s motion for subpoenas [Entry #17].

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.

Factual Background
Plaintiff is a pretrial detainee at the Kershaw County Detention Center. [Entry #1

at 2]. He alleges defendant Chris Phillips (“Lieutenant Phillips”) confiscated his personal
property, including legal papers, on August 15, 2011. Id. at 3. He alleges that on the
same day, Nurse Hollis told him he needed to take a urine test for a “liver function
analysis.” Id. After the test, Lieutenant Phillips allegedly told Plaintiff he failed a drug
test for “pot, amphetamines and meth” and asked where Plaintiff obtained the meth. Id.
at 4. When Plaintiff responded he had no knowledge of any drugs, Lieutenant Phillips

allegedly threatened to lock Plaintiff’s friend up and “get her 15 years.” Id. Plaintiff
claims he responded that he knew nothing and did not want to be questioned without his
attorney. Id. He contends he was escorted to solitary confinement and told by Lieutenant
Phillips “that it would help [him] remember.” Id. Plaintiff claims Nurse Hollis told him
later that evening that he had not failed the drug test and that she had been instructed to
lie by Lieutenant Phillips and defendant P.E. Spivey. Id.
Plaintiff claims the defendants knew he was represented by an attorney, had Nurse
Hollis lie to obtain his bodily fluids, wrongly kept him in solitary confinement for
approximately two weeks, and never returned his personal property. Id. at 4–5. He
contends he filed a grievance, but that he never received a response. Id. at 5. Plaintiff
asks that his property be returned and seeks $2.5 million in compensatory damages and
$2.5 million in punitive damages from each defendant. Id. at 7.
II.

Discussion
A.

Motion to Appoint Counsel

Plaintiff filed a motion to appoint counsel on May 8, 2012. [Entry #16]. There is
no right to appointed counsel in § 1983 cases. Cf. Hardwick v. Ault, 517 F.2d 295, 298
(5th Cir. 1975). While the court is granted the power to exercise its discretion to appoint
counsel for an indigent in a civil action, 28 U.S.C. § 1915(e)(1); Smith v. Blackledge, 451
F.2d 1201 (4th Cir. 1971), such appointment “should be allowed only in exceptional
cases.” Cook v. Bounds, 518 F.2d 779, 780 (4th Cir. 1975). Plaintiff in his motion has
not shown that any exceptional circumstances exist in this case. Rather, Plaintiff states

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only that his public defender told him perhaps he could ask for a court-appointed lawyer
in this case. [Entry #16 at 1].
After a review of the file, this court has determined that there are no exceptional or
unusual circumstances presented which would justify the appointment of counsel, nor
would Plaintiff be denied due process if an attorney were not appointed. Whisenant v.
Yuam, 739 F.2d 160 (4th Cir. 1984). In most civil rights cases, the issues are not
complex, and whenever such a case brought by an uncounseled litigant goes to trial, the
court outlines proper procedure so the uncounseled litigant will not be deprived of a fair
opportunity to present his or her case. Accordingly, Plaintiff’s request for a discretionary
appointment of counsel under 28 U.S.C. §1915 (e)(1) is denied.
B.

Motion for Subpoenas

Plaintiff filed a motion for subpoenas on May 8, 2012. [Entry #17]. Plaintiff’s
motion lists four individuals for whom he seeks subpoenas, but does not provide the
reason for the subpoenas. Id. Thus, Plaintiff has failed to demonstrate why the requested
subpoenas should be issued. To the extent Plaintiff seeks to compel the attendance of
witnesses at trial, the motion is premature as no trial date has been set. Additionally,
Plaintiff has failed to submit the necessary witness fees. There is no requirement under
28 U.S.C. § 1915 that the court pay costs incurred with regard to a subpoena such as
witness fees. See Badman v. Stark, 139 F.R.D. 601, 604 (M.D. Pa. 1991) (inmates
proceeding under 28 U.S.C. § 1915 are not entitled to have their discovery costs
underwritten or waived); see also United States Marshals Serv. v. Means, 741 F.2d 1053,
1057 (8th Cir. 1984) (holding that 28 U.S.C. § 1915(c) does not require government

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payment of witness fees and costs for indigent plaintiffs in § 1983 suits); Johnson v.
Hubbard, 698 F.2d 286, 288–91 & nn. 2–5 (6th Cir. 1983) (lower courts have no duty to
pay fees to secure depositions in civil, non-habeas corpus cases), cert. denied, 464 U.S.
917 (1983).
Therefore, because Plaintiff has not demonstrated the subpoenas are relevant to the
instant case or tendered the fees for service of the subpoenas, Plaintiff’s motion for
subpoenas [Entry #17] is denied at this time with leave to re-file after he has
demonstrated the relevance of the listed witnesses and tendered the necessary witness
fees. Plaintiff will have ample time to submit the same after a trial date is set, if this case
survives summary judgment.
IT IS SO ORDERED.

May 15, 2012
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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