Opinion
C/A No.: 1:10-2794-HMH-SVH.
November 10, 2011
ORDER
Plaintiff, proceeding pro se, brought this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his constitutional rights while incarcerated at Lee Correctional Institution ("LCI") in the custody of the South Carolina Department of Corrections ("SCDC"). Plaintiff alleges defendant Wonda Scarborough used excessive force on him on October 2, 2009 ("subject incident") in violation of his constitutional rights. Before the court are the following motions: (1) Plaintiff's Motions to Compel [Entry #24, #79]; (2) Plaintiff's Motions for Subpoenas [Entry #35, #43, #50]; (3) Plaintiff's Motion for a Physical and Mental Examination [Entry #36]; (4) Plaintiff's Motion for an Extension of Time to Complete Discovery and for Sanctions [Entry #41]; (5) Plaintiff's Motion to Transfer to Charleston County Detention Center [Entry #76]; and (6) Plaintiff's Motion to Amend the Complaint [Entry #81]. 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. Plaintiff's motions to compel
Plaintiff's first motion to compel [Entry #24] seeks responses to discovery he allegedly served on Scarborough on February 15, 2011. Scarborough has not filed a response to Plaintiff's motion. Therefore, Scarborough is directed to serve responses to Plaintiff's discovery by December 8, 2011.
To the extent Plaintiff seeks more detailed responses from defendant Anthony J. Padula, his request is denied, as Padula was dismissed from this action pursuant to the Plaintiff's stipulation of dismissal. [Entry #49].
Plaintiff's second motion to compel [Entry #79] seeks information from the SCDC, a non-party, related to the investigation of the subject incident. Because the SCDC is not a party to this action, Plaintiff may not obtain the requested information through a motion to compel. Plaintiff may serve a subpoena on the SCDC requesting such information by contacting the Clerk of Court and providing the Clerk's office with a completed Form AO 88 (Subpoena in a Civil Case), together with the necessary costs or fees. Therefore, because the SCDC is not a party to this action and Plaintiff has not indicated it was previously properly-served with a subpoena, Plaintiff's motion to compel [Entry #79] is denied.
II. Plaintiff's motions for subpoenas
Plaintiff has filed three motions for subpoenas [Entry #35, #43, #50], for which he seeks documents, testimony, and a third-party witness to report to the undersigned. Although Plaintiff has been granted in forma pauperis status, it is well-settled that a grant of such status does not mean that an "in forma pauperis plaintiff's discovery [or other court] costs either are underwritten or are waived." Badman v. Stark, 139 F.R.D. 601, 604 (M.D.Pa. 1991); Boring v. Kozakiewicz, 833 F.2d 468, 473-75 (3rd Cir. 1987) (district court not required to pay for plaintiffs' expert medical witness); Johnson v. Hubbard, 698 F.2d 286, 289-91 (6th Cir. 1983) (lower courts have no duty to pay for witness fees in civil, non-habeas corpus cases); see generally United States Marshals Service v. Means, 741 F.2d 1053, 1057 (8th Cir. 1984) (en banc) (in forma pauperis grant under § 1915 does not require courts of the United States to pay witness fees and other costs for indigent plaintiffs in § 1983 actions). Therefore, because Plaintiff has not tendered the witness fees and payment for costs for service of the subpoenas, Plaintiff's motions for subpoenas [Entry #35, #43, #50] are denied. If Plaintiff wishes to obtain subpoenas, he may do so by contacting the Clerk of Court and providing the Clerk's office with a completed Form AO 88 (Subpoena in a Civil Case), together with the necessary witness fees.
The undersigned notes, without deciding, that Plaintiff would not necessarily be entitled to the subpoena if he had tendered the witness and mileage fees.
III. Plaintiff's motion for a physical and mental evaluation
In his motion for a physical and mental evaluation [Entry #36], Plaintiff requests an examination by a physician from the Medical University of South Carolina ("MUSC"), because he believes the SCDC medical staff is discriminating against him because he is from Charleston, South Carolina. Plaintiff's basis for requesting such an examination does not appear to be related to this case. Plaintiff cannot bypass the SCDC grievance process by bringing grievances unrelated to the subject incident. Therefore, Plaintiff's request for a physical and mental evaluation by a physician at MUSC [Entry #36] is denied.
IV. Plaintiff's motion for an extension of time for discovery and for sanctions
In his motion [Entry #41], Plaintiff sought an extension for discovery and reiterated his request for discovery as previously sought in his motion to compel [Entry #24]. It appears that Plaintiff's motion is now moot, and is therefore denied [Entry #41]. Plaintiff's request for $3,500 in costs as a sanction for Scarborough's alleged failure to comply with discovery is also denied.
V. Plaintiff's motion to transfer
VI. Plaintiff's motion to amend the complaint
See Olim v. Wakinekona461 U.S. 238Ange v. Paderick521 F.2d 1066Hayes v. Thompson 726 F.2d 10151016-1017 15HCMF Corp. v. Allen238 F.3d 273276
IT IS SO ORDERED.