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Bolick v. Fagan

United States District Court, M.D. Georgia, Macon Division

August 24, 2017

JOHN FAGAN, et al., Defendants.



         Presently pending before the Court are several letters filed by Plaintiff which the Court construes as motions. Plaintiff's motion to provide a current address for Defendant Fagan (ECF No. 80) is denied. Plaintiff's motion for request for production of documents from a non-party (ECF No. 92) and motion for affidavits and documents from non-parties (ECF No. 95) are denied, but the Clerk is directed to forward Plaintiff's request for affidavits (ECF No. 95) to the named witnesses. Plaintiff's motion to exceed the standard interrogatories and request for documents limits (ECF No. 98) is denied. Plaintiff's motion to amend (ECF No. 89) is granted.

         I. Motion to Provide a Current Address for Defendant Fagan

         Plaintiff expresses concern that Defendant Fagan has not yet been served and requests that the Court order Defendants' attorney to “make known John Fagan's last known address and phone no. so that the information can be turned over to the U.S. Marshal[]'s Office.” Mot. 1, ECF No. 80. On June 6, 2017, the U.S. Marshal's Service mailed Defendant Fagan a waiver of service packet (ECF No. 81). Defendant Fagan completed the waiver packet and mailed it back to the U.S. Marshal's Service. Id. The U.S. Marshal's Service received the waiver packet on July 10, 2017. Id. However, it was incorrectly completed, and thus proper service was not perfected. Id. On August 21, 2017, this Court directed the U.S. Marshal's Service to personally serve Defendant Fagan. An attempt at personal service is ongoing (ECF No. 105). The U.S. Marshal's Service has sufficient information at this time to attempt personal service, and Plaintiff's motion (ECF No. 80) is denied.

         II. Discovery Motions

         A. Motions for Documents and Affidavits from Non-Parties

         On July 27, 2017, Plaintiff requested the Court order non-party Georgia Department of Corrections to provide Plaintiff with certain documents (ECF No. 92). Similarly, on July 31, 2017, Plaintiff requested three subpoenas be issued to non-parties (ECF No. 95)-Counselor Duttlinger, the Georgia Department of Corrections, and Officer Teecha Dennis. While styled as a request for subpoenas, Plaintiff actually requests affidavits and the production of documents from the three non-parties.

         The Plaintiff is permitted to request that a non-party witness execute an affidavit detailing his or her personal knowledge of the incident. If Plaintiff cannot directly send a request to the witness, he can forward the request to the Court and the Court will send it to the witness. The Court thus directs the Clerk to forward Plaintiff's requests (ECF No. 95) to the identified individuals or entity at the address listed by Plaintiff. The Court cannot, however, compel a non-party witness to comply with any such request. The Court can only use its subpoena power to compel the attendance of a witness to give testimony at a deposition or trial.

         Plaintiff cannot compel the production of documents by a non-party through a request for production. Plaintiff can, however, request documents from a party-such as the named Georgia Department of Corrections officers-pursuant to Federal Rule of Civil Procedure 34. Plaintiff can also seek any Georgia public records through an Open Records Act request pursuant to O.C.G.A. § 50-18-71. Alternatively, Plaintiff can depose any witness as described in Rule 30 and require the witness bring documents pursuant to Subsection 30(b)(2). However, depositions cost money including the costs to record the deposition and to transcribe the recorded testimony. Though Plaintiff has been granted leave to proceed in forma pauperis under 28 U.S.C. § 1915, he is not entitled to have the costs of discovery covered by the Court or the Defendants. See Easley v. Dep't of Corr., 590 F.App'x 860, 868 (11th Cir. 2014) (citing Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1993) (“There is no provision in [§ 1915] for the payment by the government of the costs of . . . 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.”)). Therefore, although proceeding IFP, Plaintiff is required to fund the expenses of litigation like any other litigant.

         Plaintiff's motions (ECF Nos. 92, 95) are denied to the extent that the Court cannot compel the non-parties' compliance with Plaintiff's requests. However, the Clerk is directed to mail Plaintiff's affidavit requests (ECF No. 95) to the listed non-parties.

         B. Motion to Exceed the Standard Discovery Limits

         Plaintiff asks to have the standard interrogatories limit and request for production of documents limit increased (ECF No. 98). Plaintiff does not state the number of additional interrogatories or requests he believes are necessary. Further, Plaintiff does not state what additional discovery he seeks or how that discovery would be relevant to his claim. Plaintiff's motion is thus denied.

         III. Motion to Amend

         Plaintiff moves to amend his complaint to name John Doe Defendants. On February 22, 2017, the Court directed Defendants' attorney to “undertake a reasonable effort to determine the names of the Doe Officers and provide the Court with his/her findings.” Order & R. 2, ECF No. 48. ...

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