Glass v. Hill et al

Filing 54

ORDER denying 43 motion "to dispositive responce", denying 44 motion for issuance of subpoena and granting 42 motion to produce. The motion is construed as Plaintiff's First Request for Production o f Documents, and Defendants are directed to respond to Plaintiff's request no later than March 2, 2021. To the extend either party needs additional time to file dispositive motions, that party can file the appropriate motion requesting an extension of time. Signed by Magistrate Judge Shiva V. Hodges on 2/1/2021. (lbak)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Walter Glass,
Plaintiff,
vs.
Jasmine Hill, Tyatta Davis, and
Wali Khan, correctional officers in
their official capacities,
Defendants.

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C/A No.: 1:20-1972-SAL-SVH

ORDER

Walter Glass (“Plaintiff”), proceeding pro se and in forma pauperis, filed
this action pursuant to 42 U.S.C. § 1983, against Jasmine Hill (“Hill”), Tyatta
Davis (“Davis”), and Wali Khan (“Khan”) (collectively “Defendants”) alleging
violations of his rights while incarcerated at Broad River Correctional
Institution (“BRCI”). More specifically, Plaintiff brings claims of deliberate
indifference, gross negligence, and cruel and unusual punishment arising out
of Defendants’ alleged actions and inactions, leading to the suspension of both
Davis and Khan, and occurring prior to the death of Plaintiff’s cellmate, a
death for which Plaintiff has been charged. [See ECF No. 1 at 5 (“Inmate
Starke was dead for [approximately] 13 hours in the cell [b]efore I told the
officer he was dead.”)].

On November 12, 2020, Plaintiff filed a motion for extension of time to
complete discovery that the court granted on the same day, extending the
deadline to complete discovery to December 28, 2020. [ECF Nos. 39, 40]. 1 This
matter is before the court on Plaintiff’s motion to produce and “motion to
dispositive responce,” both filed December 3, 2020, and motion for issuance of
subpoenas, filed December 11, 2020. [ECF Nos. 42, 43, 44].
Plaintiff’s motion to produce requests a very limited production of
documents from Defendants of (1) a copy of the log book dated January 5, 2019,
from the area of BRCI Plaintiff was housed on that day, (2) statements from
Hill and officer sergeant Cunningham (“Cunningham”), and (3) a copy of
“inmates wardens jacket.” [ECF No. 42]. Although Defendants oppose this
motion, in that Plaintiff failed to properly seek this discovery in accordance
with the Federal Rules of Civil Procedure, Defendants note, in the alternative,
they will consider this motion Plaintiff’s First Request for Production of
Documents and respond accordingly, requesting any response to be due within
30 days of the filing of this order. [ECF No. 46]. The undersigned grants
Plaintiff’s motion, construes it as Plaintiff’s First Request for Production of

The court also granted Defendants’ motion for extension of time, extending
the deadline for dispositive motions to be filed to March 16, 2021. [See ECF
Nos. 48, 49].
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Documents, and directs Defendants to respond to Plaintiff’s request no later
than March 2, 2021.
Plaintiff has also filed a motion for “dispositive response,” stating
Defendants acted with deliberate indifference and were negligent and grossly
negligent, providing case law in support. [ECF No. 43]. The substance of this
filing is the same as the substance of Plaintiff’s motion to amend, which the
court denied as futile in that it did not contain the relevant facts and was not
complete in itself. [See ECF No. 32, ECF No. 36 (citing Young v. City of Mount

Ranier, 238 F.3d 567, 572 (4th Cir. 2001) (“As a general rule, an amended
pleading ordinarily supersedes the original and renders it of no legal effect.”)
(citation and internal quotation marks omitted)). Here, the court denies
Plaintiff’s instant motion to the extent he again seeks to amend his complaint
for the same reasons stated. To the extent Plaintiff seeks to file a dispositive
motion, the court denies this motion as premature.
The court also denies Plaintiff’s motion for issuance of subpoenas. [ECF
No. 44]. 2 In this motion, it appears Plaintiff seeks Cunningham and Leon
Edwards (“Edwards”), an inmate housed in Perry Correctional Institution

The undersigned notes that on November 9, 2020, Plaintiff submitted a letter
to the court requesting two subpoenas, but providing no further information.
[ECF No. 38].
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(“PCI”), to appear to testify. 3 However, such a request is premature in that this
matter is not currently set for trial. 4 To the extent the request is not
premature, it is unclear what relevant information Edwards may possess. 5
Additionally, Plaintiff has failed to show that he can pay the costs associated
with serving the subpoenas or the costs of witness fees. There is no
requirement under 28 U.S.C. § 1915 that the court pay costs incurred with
regard to a 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).
Therefore, because it appears Plaintiff’s request for subpoenas is premature
and, to the extent it is not premature, Plaintiff has not demonstrated the
subpoenas are relevant to the instant case or tendered the necessary fees for
the subpoenas, Plaintiff's motion for subpoenas [ECF No. 44] is denied.

Plaintiff is also currently housed at PCI. [ECF No. 1 at 2].
To the extent that Plaintiff is seeking to depose these two individuals, his
request is denied in that he has failed to so seek consistent with the
requirements of the Federal Rules of Civil Procedure, as detailed by
Defendants. [See ECF No. 47]; see also Eggleston v. Mitchell, C/A No. 1:121220, 2013 WL 5351053, at *6 (M.D. Pa. Sept. 23, 2013) (recognizing that
though the Plaintiff is authorized to take depositions of non-party witnesses,
“the plaintiff nevertheless bears the burden of complying with [both] the
procedural and financial requirements that such discovery commands.”).
5 Cunningham is a previously-named defendant in this suit, but has been
dismissed for Plaintiff’s failure to prosecute. [ECF Nos. 30, 51].
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In sum, Plaintiff’s motions “to dispositive responce” and for issuance of
subpoenas are denied. [ECF Nos. 43, 44]. Plaintiff’s motion to produce is
granted [ECF No. 42], the motion is construed as Plaintiff’s First Request for
Production of Documents, and Defendants are directed to respond to Plaintiff’s
request no later than March 2, 2021. To the extent either party needs
additional time to file dispositive motions, that party can file the appropriate
motion requesting an extension of time.
IT IS SO ORDERED.

February 1, 2021
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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