Thomas v. Robles et al

Filing 85

ORDER Addressing Plaintiff's 84 Response to Court's Order Notifying Plaintiff of Witness Fees and Costs Due to Subpoena of Unincarcerated Witnesses Who Refuse to Testify Voluntarily, signed by Magistrate Judge Barbara A. McAuliffe on 11/14/2011. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LARRY D. THOMAS,

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CASE NO. 1:09-cv-00443-LJO-BAM PC

Plaintiff,

ORDER ADDRESSING PLAINTIFF’S
RESPONSE TO COURT’S ORDER NOTIFYING
PLAINTIFF OF WITNESS FEES AND COSTS
DUE TO SUBPOENA OF UNINCARCERATED
WITNESSES WHO REFUSE TO TESTIFY
VOLUNTARILY

v.
HECTOR ROBLES, et al.,
Defendants.

(ECF No. 84)
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Plaintiff Larry D. Thomas (“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 confirmed for trial

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on December 13, 2011, at 8:30 a.m. before the Honorable Lawrence J. O’Neill. On November 3,

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2011, an order issued notifying Plaintiff of the witness fees and costs due to subpoena unincarcerated

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witnesses who refuse to testify voluntarily. (ECF No. 78.) On November 10, 2011, Plaintiff filed

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a response stating that he was unaware that fees and costs were not covered because he was

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proceeding informa pauperis. (ECF No. 84.)

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Plaintiff is referred to the second scheduling order issued January 11, 2011, in which he was

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informed that to obtain the attendance of unincarcerated witnesses who refused to testify voluntarily

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he would be required to pay witness fees and expenses. (Second Scheduling Order 4:1-20, ECF No.

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45.) In the order, Plaintiff was also informed that witness fees and expenses were required even if

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the party is granted leave to proceed in forma pauperis.

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To the extent that Plaintiff’s response is requesting a waiver of witness fees and expenses,
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the expenditure of public funds on behalf of an indigent litigant is proper only when authorized by

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Congress. Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citations omitted). The in forma

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pauperis statute does not authorize the Court to waive witness fees or expenses paid to those

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witnesses. Tedder v. Odel, 890 F.2d at 211; Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993);

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Bussiere v. Cano, 2010 WL 5507047, 1:10-cv-00945-GBC PC, *1 (E.D. Cal. Dec. 28, 2010); see

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28 U.S.C. § 1915.

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Accordingly, to the extent that Plaintiff is requesting a waiver of witness fees and expenses
his request is DENIED.
IT IS SO ORDERED.
Dated:
10c20k

November 14, 2011

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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