Williams v. Owens et al

Filing 67

ORDER denying 60 Motion for Issuance of Subpoena; denying 62 Motion for Return of Property; denying 65 Motion for Hearing; granting 61 Motion to Compel. Defendant is directed to respond to Plaintiff's discovery requests by August 21, 2013. Signed by Magistrate Judge Shiva V Hodges on 8/7/2013.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Guy Marion Williams,
Plaintiff,
vs.
Mr. D. Mercado,
Defendant.

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C/A No.: 1:12-1946-RMG-SVH

ORDER

Plaintiff Guy Marion Williams, proceeding pro se and in forma pauperis, brings
this civil action alleging that Daniel Mercado (“Defendant”) violated his constitutional
rights during Plaintiff’s incarceration at the Federal Correctional Institution in
Williamsburg, South Carolina.1 Before the court are the following motions: (1) Plaintiff’s
motion for issuance of subpoenas [Entry #60]; (2) Plaintiff’s motion to compel [Entry
#61]; (3) Plaintiff’s motion for return of property [Entry #62]; and (4) Plaintiff’s motion
for a jury trial [Entry #65]. All pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Local Rule
73.02(B)(2) (D.S.C.).
I.

Motion for issuance of subpoenas
Plaintiff requests subpoenas to secure the presence of witnesses to testify at a

hearing or trial in this matter. [Entry #60]. Although a subpoena is the proper method for

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By the May 2, 2013, order of United States District Judge Richard M. Gergel, the
following individuals, who were previously named as defendants, were dismissed from
this matter: Warden Owens, Associate Warden Johnson, Captain Rayburn, Lieutenant
Dunbar, Dr. Massa, and Physician Assistant Fish. [Entry #46].

compelling attendance of a witness at trial, there are currently no hearings scheduled in
this case. Further, Plaintiff has failed to provide the necessary witness fees and 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 Nance v. King, No. 88-7286, 1989 WL
126533, at *1 (4th Cir. Oct. 18, 1989) (unpublished opinion); United States Marshals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 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). Plaintiff will have ample time to submit the documents
and fees prior to the scheduling of any trial date. His requests for subpoenas are denied at
this time.
II.

Motion to compel
On May 6, 2013, Plaintiff filed a motion for “disclosures and discovery.” [Entry

#49]. On May 14, 2013, the undersigned issued a docket text order stating:
Plaintiff’s motion for discovery [49] appears to request documents from
defendants. Pursuant to Rule 34 of the Federal Rules of Civil Procedure,
requests for production need not be filed with the court. Plaintiff’s motion
is, therefore, denied. As Defendants have received notice of the requests for
production via CM/ECF and a scheduling order has now been entered, the
court construes the requests as having been served on Defendants on May
14, 2013. Defendants are directed to respond within the time limits
proscribed by the Federal Rules of Civil Procedure.
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[Entry #53]. Plaintiff filed the instant motion to compel [Entry #61] on July 11, 2013,
alleging that Defendant failed to cooperate in discovery.
Defendant’s response to Plaintiff’s motion to compel states that Plaintiff’s
discovery requests were “already fully addressed and responded to in Defendant’s
Response to Plaintiff’s Motion for Disclosures and Discovery (ECF 51).” [Entry #63]. A
review of Entry #51, filed on May 14, 2013, reveals that Defendant’s only objection to
the discovery was that discovery had not yet been authorized by a scheduling order. Also
on May 14, 2013, Defendant filed an answer to the complaint, prompting a scheduling
order to issue on the same day. Finally, the undersigned also issued the docket text order
quoted above on May 14, 2013. Therefore, there is no indication on the docket that
Defendant has responded to the discovery, as directed in the undersigned’s docket text
order in Entry #53.
Independently, Defendant argues that the instant motion to compel “is untimely
and not in compliance with the Court’s Scheduling Order that required all ‘motions to
amend pleadings [to] be filed no later than June 13, 2013.’” [Entry #63]. Because the
instant motion seeks to compel discovery and not to amend the complaint, the portion of
the scheduling order Defendant quoted is irrelevant. Additionally, Plaintiff filed his
motion to compel on July 11, 2013, regarding discovery responses that were deemed
served on May 14, 2013. Plaintiff’s motion to compel is timely, as the deadline for
discovery to be completed was July 15, 2013. For these reasons, the undersigned rejects
Defendant’s arguments and grants Plaintiff’s motion to compel. Defendant is directed to
serve responses to Plaintiff’s discovery requests by August 21, 2013.
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III.

Motion to return personal property
On July 15, 2013, Plaintiff filed a motion seeking an order demanding “the

Defendant Mrs. Sarah Stone” return Plaintiff’s personal property. [Entry #62]. Despite
Plaintiff’s characterization of Mrs. Stone, she has never been a defendant in this matter,
and the court cannot exercise jurisdiction over Mrs. Stone for these purposes. Therefore,
Plaintiff’s motion must be denied.
IV.

Motion for a jury trial
On July 29, 2013, Plaintiff filed a motion for a jury trial. [Entry #65]. In his

motion, Plaintiff recounts his factual allegations and reiterates his legal claims and
requests for relief. Id. If Defendant cannot establish that he is entitled to summary
judgment in this matter, Plaintiff will be entitled to a jury trial. However, because the
deadline for dispositive motions has not yet expired [Entry #52], Plaintiff’s motion is
denied as premature at this time.
V.

Conclusion
For the foregoing reasons, the undersigned denies Plaintiff’s motion for issuance

of subpoenas [Entry #60], Plaintiff’s motion for return of property [Entry #62], and
Plaintiff’s motion for a jury trial [Entry #65]. Plaintiff’s motion to compel [Entry #61] is
granted and Defendant is directed to respond to Plaintiff’s discovery requests by August
21, 2013.

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IT IS SO ORDERED.

August 7, 2013
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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