Altony Brooks, Plaintiff, v. Cpl. Yacabozzi, Joshua H. Deter, and Sgt. Green of the Berkeley County Sheriff's Office, Defendants C/A No. 5:21-03283-BHH-MHC United States District Court, D. South Carolina Filed November 20, 2024 Cherry, Molly H., United States Magistrate Judge ORDER *1 Plaintiff, proceeding pro se and in forma pauperis, filed a verified Complaint alleging violations of his constitutional rights arising out of a July 2021 arrest. ECF No. 25. Before the Court is Plaintiff's Motion to Compel, filed on November 4, 2024. ECF No. 100. Defendants filed a Response in Opposition to the Motion. ECF No. 101. The Motion is ripe for review. BACKGROUND In his verified Amended Complaint, Plaintiff alleges that during a warrantless arrest on July 2021, Defendant Yacabozzi and two John Doe officers of Berkeley County Sherriff's Office (BCSO) used excessive force when they handcuffed Plaintiff and ultimately slammed him into a police cruiser. ECF No. 25 at 6. Plaintiff asserts that he was then taken to Orangeburg-Calhoun Detention Center, where Defendant John Doe officer of Orangeburg Sheriff's Office grabbed him out of the vehicle and forcefully took him inside. Id. Plaintiff alleges that he was then taken to Orangeburg Regional Hospital, where he was handcuffed to a bed for at least twelve hours while Holly Hill Police Officers questioned him. Id. at 7. Plaintiff alleges that Defendant Deter caused further harm to him while at a hearing, when Defendant Deter kneed Plaintiff in the buttocks and caused him to scream in pain and later dragged him. Id. Plaintiff alleges he was held in contempt of court. Id. LEGAL STANDARD “Discovery under the Federal Rules of Civil Procedure is broad in scope and freely permitted.” Carefirst of Md., Inc. v. Carefirst Pregnancy Ctrs., Inc., 334 F.3d 390, 402 (4th Cir. 2003). Pursuant to Rule 26(b)(1) of the Federal Rules of Civil Procedure, [p]arties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable. Fed. R. Civ. P. 26(b)(1). A party seeking discovery may move for an order compelling an answer or production if a party fails to answer an interrogatory submitted under Rule 33 or fails to produce documents, as requested under Rule 34. Fed. R. Civ. P. 37(a)(3)(B). Federal district courts are vested with broad discretion in resolving discovery disputes and deciding whether to grant or deny a motion to compel. Erdmann v. Preferred Research, Inc. of Ga., 852 F.2d 788, 792 (4th Cir. 1988); see Columbus–Am. Discovery Grp. v. Atl. Mut. Ins. Co., 56 F.3d 556, 568 n.16 (4th Cir. 1995) (“The scope and conduct of discovery are within the sound discretion of the district court.”). DISCUSSION In his Motion to Compel, Plaintiff asserts that defense counsel responded to Plaintiff's Requests for Production on October 9, 2024, but he was not able to view the USB drive until October 25, 2024. ECF No. 100 at 1. According to Plaintiff, the USB drive does not contain the following requested materials: the warrant management policy for the Holly Hill Police Office; video footage of a use of force incident; the name of the officer who assisted Defendant Deter; the Holly Hill use of force policy; requested incident reports; documents related to Holly Hill police officer contact with the Berkeley County Sheriff's Office, as it relates to Plaintiff's arrest; body worn camera footage showing a use of force incident; surveillance camera footage at the Orangeburg Public Annex building; written job description listing Deter's duties; the transcript and tap of proceedings where Plaintiff was held in contempt of court; and the body worn camera policy of the Holly Hill Police Office. Id. at 1–3. Plaintiff also objects to the responses he received to two requests directed to Defendant Deter. Id. at 3 (numbers 11 and 13). *2 In Response to Plaintiff's Motion, Defendants argue that Plaintiff's motion amounts to dissatisfaction with what documents were produced but that he offers no legal analysis, evidence, or basis as to what alleged documents have not been provided. ECF No. 101 at 1. Defendants assert that they have provided the following documents in response to Plaintiff's request for documents: warrants for Plaintiff's arrest, bail forms, incident reports, use of force reports, Plaintiff's driving record, Plaintiff's SLED background search, Holly Hill Police Department (“HHPD”) deadly use of force policy, HHPD non-deadly use of force policy, HHPD arrest procedures policies, and 17 body/dash cam recordings of HHPD interactions with Plaintiff. Id. Defendants further contend: Defendant Deter has provided all responsive and available documents as the Chief of Police for Holly Hill Police Department. There is no specific “warrant management policy” or other policies requested. As mentioned above, Plaintiff was provided with all policies covering the requested topics. Plaintiff was provided with all body cam and dash cam videos relating to the Plaintiff, including some footage at the Orangeburg Public Anex Building. These specific videos are identified as DEF RRFP 0067, 0079, 0080, and 0081. Plaintiff requests surveillance footage from the Orangeburg County annex building. Defendant Deter with Holly Hill Police Department does not have access to such footage. Defendant Deter is not aware of what officer assisted “in the use of force on Plaintiff”; Defendant Deter referred Plaintiff to all incident reports and videos which describe all officers involved. ECF No. 101 at 2. Defendant contends that all requested documents that exist have been provided to Plaintiff. Id. Upon review, the Court concludes that Plaintiff's motion must be denied. Defendants have stated that they have produced all responsive materials in their possession, custody, or control, and they cannot be ordered to produce material they do not possess or that does not exist. See Mach. Sols., Inc. v. Doosan Infracore Am. Corp., No. 3:15-CV-03447-JMC, 2018 WL 573158, at *4 (D.S.C. Jan. 26, 2018) (explaining that Rule 34 “does not require a party to create responsive documents if they do not exist in the first instance,” and “the Court cannot compel a party to produce documents that do not exist”). Plaintiff also objects to Deter's responses to Requests number 13 and 14. See ECF No. 100 at 3 ¶¶ 13–14. Request number 13 states, “Joshua Deter why did you use force on the Plaintiff.” ECF No. 100-3 at 4 ¶ 13. Defendant Deter responded as follows: “This Defendant is not aware of what force the Plaintiff is referring to. This Defendant refers to the body cam footage produced herewith for interactions with the Plaintiff.” Id. In his Motion, Plaintiff argues that “Deter has not sworn under penalty [of] perjury to the fact that he did not use force on Plaintiff and that subpoenas of the Orangeburg Public Annex Building surveillance would prove the defendant to be a liar.”[1] ECF No. 100 at 3. However, Plaintiff made this request pursuant to Rule 34's request for production of documents, which does not require sworn answers. See Fed. R. Civ. P. 34. Moreover, request number 13 asks why Deter used force, not if he used force, and the response explains that Deter does not know what force Plaintiff is referring to, but it cited produced videos that may contain responsive information. Defendant cannot explain why he used force if he does not know what Plaintiff is referring to, and the Court finds no basis to compel further response. *3 Request number 14 states, “Joshua Deter why did you have warrant issued on the Plaintiff.” ECF No. 100-3 at 4 ¶ 14. Deter responded as follows: “This Defendant refers to the warrants produced herewith which attest to the circumstances of the warrants.” Id. In his Motion, Plaintiff contends that no warrants were ever produced. ECF No. 100 at 3. In their Response, Defendants assert that they produced warrants for Plaintiff's arrest. ECF No. 101 at 1. Upon review, it appears to the Court that Defendant Deter responded to this Request but that Plaintiff did not receive a copy of the warrants produced in this document production. Accordingly, the Court denies Plaintiff's motion to compel further response but orders Defendants to re-serve the portions of the document production containing the arrest warrants. CONCLUSION For the reasons set forth above, Plaintiff's Motion to Compel, ECF No. 100, is DENIED. Defendants have fourteen days from the date of this Order to re-serve the portions of their document production containing the arrest warrants. IT IS SO ORDERED. Footnotes [1] To the extent Plaintiff seeks materials in the possession of a third party, Plaintiff is directed to Rule 45. See also Fed. R. Civ. P. 34(c) (“As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.”). 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(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”). Although Plaintiff has been granted in forma pauperis status in this case pursuant to 28 U.S.C. § 1915(d), such status does not mean that Plaintiff's discovery expenses are underwritten or waived. See Henderson, 2022 WL 2106560, at *1; Blackwell v. Houser, No. 5:16-CV-67-FDW, 2017 WL 392184, at *3 (W.D.N.C. Jan. 27, 2017) (“Civil litigants, including pro se litigants, generally bear their own deposition costs.”); Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (28 U.S.C. § 1915(a) does not require the government to advance funds for deposition expenses); 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.”); U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1056–57 (8th Cir. 1984) (holding that 28 U.S.C. § 1915 does not require government payment of witness fees and costs for indigent plaintiffs in § 1983 suits). A pro se plaintiff seeking issuance of a subpoena for documents or other items (i.e., a subpoena duces tecum) must present all information necessary for the issuance of such subpoena. Specifically, a plaintiff must (1) clearly identify what documents he is seeking and from whom; (2) explain how the requested documents are relevant and proportional to the needs of his case; (3) show that the requested documents are obtainable only through the identified third party; (4) show that he has arranged for service of his proposed subpoenas duces tecum pursuant to Rule 45 of the Federal Rules of Civil Procedure or, in the alternative, provide the court with completed USM-285 forms so that service can be effected by the United States Marshals Service (see 28 U.S.C. § 1915(d); see also Fed. R. Civ. P. 4(c)(3)); and (5) demonstrate to the Court that he has made provision or has the funds necessary to pay the subpoenaed party for the costs associated with the production of the requested documents. See Ronell v. Cabbagestock, No. CV 0:20-871-DCN-PJG, 2020 WL 6802909, at *2 (D.S.C. Nov. 18, 2020).