Smith v. Phillips et al

Filing 51

ORDER denying 38 MOTION for issuance of Subpoena and withholding judgment on the remaining motions until counsel responds regarding service of Phillips and Wilson. Signed by Magistrate Judge Shiva V Hodges on 2/25/2015. (mwal)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Gregory Vincent Smith,
Plaintiff,
vs.
Christopher Phillips, Cpt. T. (Tick)
Wilson, Peggy E. Spivey, Crystal
Hodge, and Jim Matthews,
Defendants.

)
)
)
)
)
)
)
)
)
)
)
)

C/A No.: 1:14-3161-RBH-SVH

ORDER

Gregory Vincent Smith (“Plaintiff”), proceeding pro se and in forma pauperis,
brought this action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional
rights by Christopher Phillips, Captain Wilson, Peggy Spivey, Crystal Hodge, and Jim
Matthews (“Defendants”) during Plaintiff’s incarceration at Kershaw County Detention
Center (“KCDC”). All pretrial proceedings in this case were 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 Plaintiff’s motion for a subpoena [ECF
No. 38], motion for an entry of default [ECF No. 37], and motions for default judgment
[ECF Nos. 43, 44].
I.

Motion for Subpoena
In his motion for a subpoena, Plaintiff requests a subpoena duces tecum form, but

fails to provide information about the documents he seeks to subpoena or show that they
are relevant. [ECF No. 38].

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) (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WL 126533, at *1 (4th Cir. Oct. 18, 1989) (unpublished opinion). Because Plaintiff has
not demonstrated the subpoena is relevant to the instant case or tendered the necessary
fees for the subpoena, Plaintiff’s motion for a subpoena [ECF No. 38] is denied at this
time with leave to refile after he has demonstrated the relevance of the requested
subpoena and tendered the necessary copy costs and costs of service.
II.

Motions Related to Default
In his motions for an entry of default as to Phillips [ECF No. 37] and default

judgment against Phillips [ECF No. 43] and Wilson [ECF No. 44], Plaintiff notes that the
USMs-285 returned by the U.S. Marshal Service indicate that Phillips and Wilson were
served [ECF No. 23], but they have failed to file an answer. 1 Phillips and Wilson filed
responses arguing that they have not been properly served. [ECF Nos. 42, 45, 46].
Specifically, Phillips and Wilson argue that Sam Connell, who is listed as the individual
served on behalf of Phillips and Wilson, did not have authority to accept service of the
summons and complaint. Id. Phillips and Wilson attach affidavits from Connell stating
that he informed the U.S. Marshal who attempted service that he would not accept service
on behalf of Phillips and Wilson, as he was not authorized to do so. [ECF No. 42-1 at ¶ 7;
46-1 at ¶ 7].
1

Plaintiff’s motion for default judgment against Wilson is less clear on this argument, but
the undersigned liberally construes the motions together to include this argument.
2

In light of the procedural history of this case, defense counsel is directed to advise
the court by March 10, 2015, by a filing on the docket, whether he can accept service of
process on behalf of Phillips and Wilson or whether they will waive service. If Phillips
and Wilson accept or waive service, this case will proceed on the merits. Additionally,
the undersigned will likely deny Plaintiff’s pending motion for an entry of default and
motions for default judgments. If Phillips and Wilson do not accept or waive service, the
court will determine whether they have met the burden of proof in showing that they
were not properly served in this matter, likely granting Plaintiff additional time to serve
them and permit discovery on the same, if necessary.
III.

Conclusion
For the foregoing reasons, the court denies Plaintiff’s motion for a subpoena [ECF

No. 38] and withholds judgment on the remaining motions until counsel responds
regarding service on Phillips and Wilson.
IT IS SO ORDERED.

February 25, 2015
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

3