Dalrick A. Henry v. Eliud Chapa

Filing 69

ORDER DIRECTING Clerk of Court to Issue 15 Subpoenas in Blank and DIRECTING Plaintiff to Complete Each Subpoena He Wishes to Have Served on Unincarcerated Witnesses and Provide the Completed Subpoenas to the Clerk of Court for Delivery to the United States Marshal's Service; ORDER DIRECTING the United States Marshal Service to Serve All Appropriate Subpoenas on Behalf of Plaintiff; ORDER DIRECTING Plaintiff to File With the Court a List of Incarcerated Witnessed He Intends to Call at Trial, signed by District Judge David G. Campbell on 1/27/2010. List of Incarcerated Witnesses due by 4/12/2010. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dalrick Henry, Plaintiff, vs. Eliud Chapa, Defendant.

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No. 1:07-cv-00336-DGC ORDER

A Final Pretrial Conference was held on January 15, 2010. The Court stated that it will direct the United States Marshal's Service to serve Plaintiff's trial subpoenas. The Court further stated that it will issue a separate order addressing this subject and explaining the steps Plaintiff must take in order to have the subpoenas served. This is that order. The issuance and service of subpoenas is governed by Rule 45 of the Federal Rules of Civil Procedure. That rule provides that the clerk must issue a subpoena, signed but otherwise blank, to a party who requests it and that party must complete the subpoena before service. Fed. R. Civ. P. 45(a)(3). Service of a subpoena "requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law." Fed. R. Civ. P. 45(b)(1). The daily witness attendance fee for unincarcerated witnesses is $40.00. 28 U.S.C. § 1821(b). Mileage is payable based on distances and rates set by the United States General Services Administration ("GSA"). 28 U.S.C. § 1821(c)(2). A review of the GSA's website indicates that the current mileage rate is $0.50 per mile. See http://www.gsa.gov (POV mileage

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reimbursement). Plaintiff is proceeding pro se and in forma pauperis, and therefore is entitled to service of trial subpoenas by the United States Marshal's Service. See 28 U.S.C. § 1915(d). "Although the plain language of section 1915 provides for service of process for an indigent's witnesses, it does not waive payment of fees or expenses for those witnesses." Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989); see Tolbert v. Peeler, No. 1:03-cv-05254LJO-SMS PC., 2007 WL 2994771, at *1 (E.D. Cal. Oct. 12, 2007) ("in forma pauperis status does not provide for the payment of witness fees or travel expenses"). The Court will direct the Clerk of Court to send 15 signed but otherwise blank subpoena forms to Plaintiff. Plaintiff must fully complete each subpoena he wishes to have served on unincarcerated witnesses and shall return the completed subpoenas to the Clerk for delivery to the United States Marshal's Service. For each unincarcerated witness, Plaintiff must provide the $40.00 daily witness fee plus the witness' travel expenses. See CF & I Steel Corp. v. Mitsui & Co. (U.S.A.), Inc., 713 F.2d 494, 496 (9th Cir. 1983) ("[W]e hold the plain meaning of Rule 45[] requires simultaneous tendering of witness fees and the reasonably estimated mileage allowed by law with service of a subpoena."). Plaintiff is advised that "[a] subpoena will not be served by the United States Marshal upon an unincarcerated witness unless the subpoena is accompanied by a money order made payable to the witness for the full amount of the witness' travel expenses plus the daily witness fee of $40.00[.]" See Bjorlin v. Crow, No. CIV S-06-1837 LKK DAD P., 2009 WL 2777282, at *3 (E.D. Cal. Aug. 27, 2009); see Harnden v. Key, No. 1:02-cv-06529-LJO-GSA-PC., 2008 WL 4793273, at *4 (E.D. Cal. Oct. 31, 2008). Subpoenas are not required for incarcerated witnesses. On or before April 12, 2010, Plaintiff shall file a list of incarcerated witnesses he intends to call at trial. The Court will then prepare appropriate writs for each such witness. IT IS ORDERED: 1. 2. The Clerk is directed to issue 15 subpoenas to Plaintiff. Plaintiff must complete each subpoena he wishes to have served on -2-

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unincarcerated witnesses and shall provide the completed subpoenas to the Clerk of Court for delivery to the United States Marshal's Service. For each unincarcerated witness, Plaintiff must provide the $40.00 daily witness fee plus the witness' travel expenses. The United States Marshal Service is directed to serve all appropriate subpoenas on behalf of Plaintiff. Plaintiff shall, on or before April 12, 2010, file with the Court a list of incarcerated witnesses he intends to call at trial. DATED this 27th day of January, 2010.

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