Henderson v. Myers et al

Filing 128

ORDER: Plaintiff's Motion for Funds to Hire Expert Witnesses (Document # 90 ) is DENIED; Motion for and Order Compelling Discovery (Document # 96 ) is DENIED; and Motion to Enlarge Time (Document # 120 ) is GRANTED. Plain tiff shall respond to Defendants' Motions for Summary Judgment (Documents # 114 , 115 ) within twenty days of the date of this Order. Response to Motions due August 21, 2017. IT IS SO ORDERED. Signed by Magistrate Judge Thomas E Rogers, III on 08/01/2017.(dsto, )

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
FLORENCE DIVISION
ARYEE HENDERSON,

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Plaintiff,
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-vs)
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DR. LILLY RANDOLPH, MEDICAL
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PHYSICIAN; SGT. SMALDONE,
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PRISON GUARD; MS. SCARBOROUGH, )
FOOD SERVICE SUPERVISOR; MS.
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RICHBURG, FOOD SERVICE
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SUPERVISOR; MS. JANICE, FOOD
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SERVICE SUPERVISOR; MS. KINARD, )
FOOD SERVICE SUPERVISOR;
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Defendants.
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___________________________________ )

Civil Action No.: 4:16-cv-0947-BHH-TER

ORDER

Plaintiff, who is proceeding pro se, brings this action pursuant to 42 U.S.C. § 1983, alleging
Defendants violated his constitutional rights with respect to his conditions of confinement and his
medical needs. Presently before the court are Plaintiff’s Motion for Funds to Hire Expert Witnesses
(Document # 90), Motion for and Order Compelling Discovery (Document # 96), and Motion to
Enlarge Time (Document # 120). All pretrial proceedings in this case were referred to the
undersigned pursuant to the provisions of 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule
73.02(B)(2)(d), DSC.
In his Motion for Funds to Hire Expert Witnesses, Plaintiff, who is currently incarcerated
within the South Carolina Department of Corrections (SCDC), asserts that he needs a private
investigator to locate witnesses, obtain affidavits and discovery materials and aid him in choosing
expert witnesses, a dermatologist or outside certified physician to testify concerning skin conditions,

a dietician, nutritionist, or food service specialist to testify pertaining to the quality and quantity of
food, and an independent outside maintenance specialist to inspect the special housing unit and
testify regarding the living conditions within. Plaintiff points to no authority for his request.
The court does not appoint experts to plaintiffs in civil cases. See Ford v. Ozmint, 2014 WL
1093106, *3 (D.S.C. March 18, 2014) (citing Boring v. Kazakiewicz, 833 F.2d 468 (3d Cir. 1987)
(rejecting an indigent civil litigant’s argument that the district court erred in refusing to have the
government pay for an expert medical witness)). The undersigned sees no reason why this same
analysis would not apply to private investigators as well.1 Although Plaintiff was granted informa
pauperis status, 28 U.S.C. § 1915 provides only for the waiver of fees and costs, with no such
provision for the payment of any other litigation expense, including funding for expert witnesses.
See Tabron v. Grace, 6 F.3d 148 (3d Cir. 1993). Accordingly, Plaintiff’s Motion is denied.
In his Motion to Compel, Plaintiff seeks an order compelling Defendants to respond to the
interrogatories and requests for production that he served on them on December 28, 2016. He does
not provide a copy of these discovery requests or proof of the date of service. In his Response
(Document # 99), counsel for Defendant Smaldone attaches a copy of the envelope containing the
discovery requests, revealing a postmark date of January 9, 2017. He states that he served Defendant
Smaldone’s responses to Plaintiff’s requests on February 9 and 13, 2017. Counsel for Defendant
Randolph asserts in her Response (Document # 100) that she never received Plaintiff’s discovery
requests and believes that Plaintiff only served the requests on her co-defendant. Plaintiff filed a
Reply (Document # 110) on April 6, 2017, indicating that he re-sent the discovery requests to

1

As noted by Defendant Randolph in her Response (Document # 97), Plaintiff’s request for
a private investigator appears to be a second shot at appointment of counsel in that the services he
seeks from a private investigator are the types of services an attorney would normally provide.

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Defendant Randolph on March 27, 2017, and asks that the court hold his Motion to Compel in
abeyance until Defendant Randolph responds to the requests. He does not address the discovery
responses from Defendant Smaldone. The status of these discovery requests is further addressed in
Plaintiff’s Motion for Extension of Time (Document # 120).
In that motion, Plaintiff seeks an extension of time to respond to Defendants’ motions for
summary judgment and an order compelling Defendants to respond to his discovery requests. There
he states that he received only a few documents for inspection from Defendant Smaldone, but does
not assert which documents he requested that were not produced. In his Reply (Document # 127),
Plaintiff includes an affidavit in which he states only that “Defendant Sgt. Smalldone did not send
me all of the requested discovery documents.” Without specific objections to Defendant’s responses,
the court cannot determine whether they were proper.2 Thus, Plaintiff’s motion to compel with
respect to Defendant Smaldone is denied.
Plaintiff also asserts that Defendant Randolph has produced no documents. Counsel for
Defendant Randolph argues that discovery under the scheduling order closed on February 7, 2017,
and Plaintiff did not serve any requests on her until March 28, 2017. Thus, Defendant Randolph
responded to Plaintiff’s requests by objecting to them as untimely (Document # 123-2).
Because Defendant Smaldone responded to Plaintiff’s discovery requests and Plaintiff has
failed to provide specific objections to those requests and because Plaintiff’s discovery requests to
Defendant Randolph were not timely served, Plaintiff’s Motion to Compel (as supplemented by his
Motion for Extension of Time) is denied. His Motion for Extension of Time is granted and he shall

2

Defendant Smaldone produced a copy of the Certificate of Service indicating that the
documents were mailed to Plaintiff on February 13, 2017, (Document # 121-2) and the Bates Index
of his discovery responses (Document # 121-3), indicating that he produced 893 pages of discovery
to Plaintiff.

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have twenty days from the date of this Order to file his responses to Defendants’ Motions for
Summary Judgment.
In sum, Plaintiff's Motion for Funds to Hire Expert Witnesses (Document # 90) is DENIED,
Motion for and Order Compelling Discovery (Document # 96) is DENIED, and Motion to Enlarge
Time (Document # 120) is GRANTED. Plaintiff shall respond to Defendants’ Motions for
Summary Judgment (Documents # 114, 115) within twenty days of the date of this Order.
IT IS SO ORDERED.

s/Thomas E. Rogers, III
Thomas E. Rogers, III
United States Magistrate Judge
August 1, 2017
Florence, South Carolina

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