United States District Court, D. South Carolina
Mr. Ronnie Lee Cash, Plaintiff,
Ronnie D. Horn, Ritchie Strawn, Tony E. Brown, Michael R. Wilhere, John Smoak, Jason Yown, Raymond Gist, Robert Coler, Kimberly Leskanic, Mark Kitchen, Defendants.
J. GOSSETT UNITED STATES MAGISTRATE JUDGE
Mr. Ronnie Lee Cash (“Cash”), a self-represented
state prisoner, filed this action seeking relief pursuant to
42 U.S.C. § 1983, and alleging violations of his
constitutional rights by the named defendants. This matter is
before the court on Cash's motion for discovery, to
conduct depositions, and for an evidentiary hearing. (ECF No.
25.) Additionally, Cash has filed a motion for subpoenas.
(ECF No. 26.)
Motion for Discovery, Depositions, and an Evidentiary
a dispute the court generally does not enter the discovery
process, which is detailed in the Federal Rules of Civil
Procedure. See generally Fed.R.Civ.P. 26 through 37;
see also Fed.R.Civ.P. 45. Cash is advised that he
does not need specific authorization from the court to obtain
discovery from the defendant. Rather, he should direct his
discovery requests to the counsel of record for the
defendants. If Cash is dissatisfied with the responses he
receives from the defendants, he may then file a motion to
compel. See Local Civ. Rule 37.01 (D.S.C.).
Accordingly, Cash's motion seeking discovery is denied.
Additionally, Cash's motion for an evidentiary hearing is
denied as premature.
also requests leave to depose unnamed individuals and to hold
the depositions at Lieber Correctional Institution. As stated
above, discovery in civil cases filed in this court is
governed by the Federal Rules of Civil Procedure. These rules
are applicable to all litigants including those who are
proceeding pro se. According to Rule 26(b)(1),
“[p]arties may obtain discovery regarding any
nonprivileged matter that is relevant to any party's
claim or defense.” Except under certain circumstances
in which leave of the court is required, see
Fed.R.Civ.P. 30(a)(2), a party may take an oral deposition of
another party without leave of the court by serving written
notice on the opposing party. See Fed.R.Civ.P. 30.
As Cash has not specified in his motion which and how many
individuals he wishes to depose, the court is unable to
determine if the exceptions listed in Rule 30(a)(2) requiring
leave of the court are applicable.
deponent's attendance may be compelled by subpoena
pursuant to Rule 45. However, the court's authorization
of a subpoena requested by an in forma pauperis
plaintiff is subject to limitations, including the relevance
of the information sought as well as the burden and expense
to a person subject to the subpoena. See
Fed.R.Civ.P. 26(b) & 45(c)(1). The court notes that,
although the plaintiff has been granted in forma
pauperis status pursuant to 28 U.S.C. § 1915(d),
such status does not mean that the plaintiff's discovery
expenses are underwritten or waived. See Badman v.
Stark, 139 F.R.D. 601, 604 (M.D. Pa. 1991) (holding that
an indigent plaintiff seeking issuance of a subpoena must
simultaneously tender the witness fees and the estimated
mileage allowed by law with the service of the subpoena);
see also Tabron v. Grace, 6 F.3d 147, 159 (3d Cir.
1993) (“There is no provision in [28 U.S.C. §
1915] for the payment by the government of the costs of
deposition transcripts, or any other litigation expenses, and
no other statute authorizes courts to commit federal monies
for payment of the necessary expenses in a civil suit brought
by an indigent litigant.”).
advised that subpoenas for the attendance at a deposition
cannot be enforced without proper prepayment of the
appropriate witness and mileage fees. See
Fed.R.Civ.P. 45(b)(1). Moreover, he has made no showing as to
how any of the testimony he seeks is relevant to his claims
and therefore within the scope of permissible discovery under
the Federal Rules of Civil Procedure. Accordingly, Cash's
motion for depositions is denied without prejudice. If Cash
wishes to depose any individual, Cash must specify how the
testimony he seeks to obtain is relevant to his claims as
specified in Rule 26(b)(1) of the Federal Rules of Civil
Procedure and according to the practice of this district.
Accordingly, Cash's motion is denied with leave to
re-file to provide the court with additional information
within fourteen (14) days from the date of this order.
Motion for Subpoenas
motion for subpoenas appears to seek issuance of trial
subpoenas and subpoenas duces tecum from individuals
who are not parties to this action. As to Cash's request
for issuance of trial subpoenas, such request is denied as
premature without prejudice to refile his motion at the
appropriate stage of litigation.
Cash's request for the issuance of subpoenas duces
tecum, the court's authorization of a subpoena
duces tecum requested by an in forma
pauperis plaintiff is subject to limitations, including
the relevance of the information sought as well as the burden
and expense to a person subject to the subpoena. See
Fed.R.Civ.P. 26(b) & 45(d)(1); Jackson v.
Brinker, No. IP 91-471-C, 1992 WL 404537, at *7 (S.D.
Ind. Dec. 21, 1992) (finding that the court may refuse an
indigent party's request to have the United States
Marshals Service serve a Rule 45 subpoena duces
tecum that is “frivolous, requests immaterial or
unnecessary information, is unduly burdensome, would be
reasonably certain to result in the indigent's
responsibility for significant compliance costs for which he
cannot provide, or is otherwise unreasonable or abusive of
the court's process”). While the plaintiff's
in forma pauperis status may permit service of a
subpoena duces tecum by the United States Marshals
Service without prepayment of the cost of service,
court must limit a plaintiff's discovery requests if the
documents sought from the non-party are “cumulative or
duplicative, or can be obtainable from some other source that
is more convenient, less burdensome, or less
expensive.” See Fed.R.Civ.P. 26(b)(2)(C);
see also Badman, 139 F.R.D. at 605 (“The
Federal Rules of Civil Procedure were not intended to burden
a non-party with a duty to suffer excessive or unusual
expenses in order to comply with a subpoena duces
tecum.”). Additionally, the plaintiff should
demonstrate that the requested records are obtainable only
through the identified third party and that he has made
provisions to pay the reasonable costs associated with the
discovery he seeks. See Badman, 139 F.R.D. at 605;
Sickler v. Curtis, No. 2:11-cv-0205, 2012 WL
3778941, at *2 (E.D. Cal. Aug. 31, 2012).
current motion, Cash has not presented the information
necessary for the issuance of a subpoena duces
tecum. Specifically, Cash must:
(1) clearly identify what documents he is seeking and from
(2) explain how the requested documents are relevant to his
(3) show that the requested documents are obtainable only
through the ...