United States District Court, D. South Carolina, Florence Division
E. Rogers, III United States Magistrate Judge
who is proceeding pro se, brings this action,
alleging violations of his constitutional rights pursuant to
both 42 U.S.C. § 1983 and Bivens v. Six Unknown
Federal Narcotics Agents, 403 U.S. 388, 91 S.Ct. 1999,
29 L.Ed.2d 619 (1971). Presently before the court are
Plaintiff's Motions to Compel (Documents # 46, 63),
Motion for Reconsideration (Document # 75), and Motion for
Extension of Time (Document # 93). 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.
MOTIONS TO COMPEL
has filed two motions to compel, stating that he has not
received any responses to his discovery requests to
Defendants. In response to the second motion to compel,
Defendants stated that they had served their discovery
responses on Plaintiff. Plaintiff filed a reply (Document #
89), arguing that Defendants objected to each of his
discovery requests. Plaintiff attached Defendants'
discovery responses to his reply and argues that
Defendants' objections are without merit. Because these
arguments were raised in Plaintiff's reply, Defendants
have not responded to them. Thus, Defendants are directed to
file a sur-reply to Plaintiff's reply (Document # 89)
within ten days from the date of this order.
it is noted that Defendants raise similar objections to many
of Plaintiff's requests by stating that the requested
documents have been turned over to prosecutors in an ongoing
criminal prosecution and Defendants do not have authority to
release materials pertinent to an ongoing prosecution.
Problems can arise during the discovery process when related
civil and criminal actions are pending because of the
“differences between the discovery privileges available
to [the plaintiff] in each case.” Degen v. United
States, 517 U.S. 820, 825-26, 116 S.Ct. 1777, 1781-82,
135 L.Ed.2d 102 (1996). “A criminal defendant is
entitled to rather limited discovery, with no general right
to obtain the statements of the Government's witnesses
before they have testified. . . . In a civil case, by
contrast, a party is entitled as a general matter to
discovery of any information sought if it appears
‘reasonably calculated to lead to the discovery of
admissible evidence.'” Id. (citing Fed.
Rules Crim. Proc. 16(a)(2), 26.2; Fed. Rule Civ. Proc.
26(b)(1)). Parties should not be allowed to use the more
liberal rules of civil discovery to “gain an improper
advantage in the criminal matter.” Id.
However, any such concerns are alleviated when the criminal
prosecution is complete. See, e.g.,
U.S. v. Any and All Assets of That Certain Business Known
as Shane Co., 147 F.R.D. 99, 101 (M.D. N.C. 1992)
(noting that, in such circumstances, parties may seek to stay
the matter until the conclusion of the trial). Here, as
Plaintiff notes in his reply, his federal trial is complete.
See U.S. v. Waters, 4:15-cr-0158-BHH-1, Judgment
(Document # 162). However, it appears that state charges were
also brought arising from the March 12, 2015, arrest. The
status of those charges is not clear. Thus, in their
sur-reply, Defendants are directed to notify the court of the
status of those state criminal charges. Ruling on
Plaintiff's second motion to compel (Document # 63) will
be held in abeyance pending Defendants' sur-reply.
Plaintiff's first motion to compel (Document # 46) is
MOTION FOR RECONSIDERATION
seeks reconsideration of this court's denial of his
motion requesting disclosure under the Freedom of Information
Act (Document # 27). In denying Plaintiff's motion, the
court discussed as follows:
In his motion for disclosure of information under the Freedom
of Information Act, Plaintiff requests that “the
government Alfred W. Bethea, Jr. to turn over a one page
transcript that was prepared for the jury at my trial. This
transcript was used in case # 4:15-cr-158. It was used
because a part of the cop car in dash video is hard to hear
and this video well the transcript tells what took place
outside the sight of the in dash video.” Pl. Motion.
FOIA requires each governmental agency to provide information
to the public on request if the request “reasonably
describes” the record sought and is made in accordance
with published agency rules for making requests. 5 U.S.C.
§ 552(a)(3). The agency is required to provide a
response within 10 days of the receipt of the request on
whether it will provide the information. 5 U.S.C. §
552(a)(6). Subsection 552(b) enumerates nine exemptions from
the production requirement. See Virginia Beach v. U.S.
Dep't of Commerce, 995 F.2d 1247, 1253 (4th
Cir.1993). The United States District Courts are given
jurisdiction to enjoin agencies from “withholding
Agency records and to order the production of any Agency
records improperly withheld.” 5 U.S.C. §
552(a)(4)(B). However, before the court has jurisdiction to
enter any such order, a proper FOIA request must be made with
the agency from whom the party is requesting documents and
the agency must have withheld the documents from production.
It does not appear that Plaintiff has made a FOIA request to
the U.S. Attorney's Office. Further, the U.S.
Attorney's Office is not a party to this action. Thus,
the relief requested by Plaintiff in this motion for
disclosure is improper.
Order p. 3-4 (Document # 41). The court further noted that it
“offers no opinion as to whether FOIA is the proper
avenue for requesting the information sought by Plaintiff,
which appears to be evidence used at trial during his
criminal case, only that the present motion is
improper.” Id. at n.4.
motion for reconsideration, Plaintiff asserts that he
requested a copy of the transcript from the court in his
criminal case, but the motion was denied because Plaintiff,
who was represented by counsel in the criminal matter, filed
the motion pro se. Plaintiff also asserts that he then asked
his attorney for the copy, but she told him she did not have
it. Plaintiff asserts that he does not know how else to go
about receiving the transcript.
of interlocutory orders may be contested under Rule 54(b).
See Quigley v. United States, 865 F.Supp.2d 685, 699
(D.Md.2012) (quoting Fed.R.Civ.P. 54) (“[A]ny order or
other decision, however designated, that adjudicates fewer
than all the claims or the rights and liabilities of fewer
than all the parties does not end the action ... and may be
revised at any time before the entry of a judgment
adjudicating all the claims and all the parties' rights
and liabilities”). A court's discretion to review
an interlocutory order is “not subject to the strict
standards applicable to motions for reconsideration of a
final judgment, ” Am. Canoe Ass'n v. Murphy
Farms, Inc., 326 F.3d 505, 514 (4th Cir.2003), but is
“within the plenary power of the Court ... to afford
such relief ... as justice requires.” Fayetteville
Investors, 936 F.2d at 1473. Although Rule 60 does not
govern reconsideration of an interlocutory order, the Fourth
Circuit has suggested that at least parts of the rule may
guide a court's analysis. Id. at 1470, 1472;
Pritchard v. Wal-Mart Stores, Inc., 3 F.App'x
52, 53 (4th Cir.2001). In considering whether to revise
interlocutory decisions, district courts in this circuit have
looked to whether movants presented new evidence, or whether
the court has “obviously misapprehended a party's
position or the facts or applicable law.” United
States v. Duke Energy Corp., 218 F.R.D. 468, 474 (M.D.
Plaintiff essentially argues that he has already tried to
obtain the transcript a few different ways and does not know
how to get it other than to ask the court in this civil
matter. Still, as stated in the previous order, the method by
which Plaintiff seeks to obtain the requested transcript, via
a court order under FOIA, is improper. Further, discovery
requests are to be served on parties, not filed with the
court, and the court does not get involved in discovery
matters until a party has requested discovery pursuant to the
Federal Rules of Civil Procedure and, thereafter, a dispute
arises. Finally, the Federal Rules of Civil Procedure do not
provide a mechanism for parties to seek
“discovery” from the court. For these reasons,
the relief sought by Plaintiff is improper and his motion for
reconsideration is denied.
MOTION FOR ...