Moran v. Dovey et al

Filing 113

ORDER DENYING Plaintiff's 112 Motion for Non-Voluntary Unincarcerated Witnesses, signed by Magistrate Judge Gerald B. Cohn on 12/20/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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NICOLAS MORAN,

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CASE NO. 1:08-cv-00016-GBC (PC)
Plaintiff,

ORDER DENYING PLAINTIFF’S MOTION
FOR NON-VOLUNTARY
UNINCARCERATED WITNESSES

v.
JOHN DOVEY, et al.,

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(Doc. 112)
Defendants.
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Plaintiff Nicolas Moran (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on

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Plaintiff’s second amended complaint, filed on November 18 2008. (Docs. 20, 29, 30). On October

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28, 2011, the Court filed the second scheduling order for trial wherein it outlined the requirements

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for Plaintiff to obtain incarcerated and non-incarcerated witnesses. Doc. 111. It its second

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scheduling order, the Court instructed:

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If a prospective witness is not incarcerated, and he or she refuses to testify
voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In
addition, the party seeking the witness’s presence must tender an appropriate sum of
money for the witness. Id. In the case of an unincarcerated witness, the appropriate
sum of money is the daily witness fee of $40.00 plus the witness’s travel expenses.
28 U.S.C. § 1821. . . . Because no statute authorizes the use of public funds for these
expenses in civil cases, the tendering of witness fees and travel expenses is required
even if the party was granted leave to proceed in forma pauperis.

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Doc. 111 at 3-4.
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On November 28, 2011, Plaintiff submitted a motion conceding that he cannot fulfil the
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payment requirements pursuant to Rule 45 of the Federal Rules of Civil Procedure. Doc. 112 at 1.
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However, Plaintiff requests that he still be able to obtain the following non-voluntary unincarcerated

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witnesses: 1) Doctor V. Schemer (staff Psychiatrist, member of the CTC committee at Kern Valley

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State Prison (“KVSP”); 2) K. Rockhold (social worker, member of the CTC committee at KVSP;

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3) Doctor Asarulislam Syed (member of the CTC committee at Kern Valley State Prison (“KVSP”);

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and 4) Chandles (social worker, member of the CTC committee at KVSP). Doc. 112 at 2.

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As stated before in the second scheduling order, since no statute authorizes the use of public

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funds for such expenses in civil cases, the tendering of witness fees and travel expenses is required

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even if the party was granted leave to proceed in forma pauperis. Doc. 111 at 4. Since Plaintiff has

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conceded that he does not have the funds to pay (pursuant to Rule 45 of the Federal Rules of Civil

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Procedure) for these non-voluntary unincarcerated witnesses, Plaintiff’s motion is HEREBY

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DENIED.

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IT IS SO ORDERED.

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Dated:
0jh02o

December 20, 2011
UNITED STATES MAGISTRATE JUDGE

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