Shepard v. Tilton et al

Filing 81

ORDER DENYING Plaintiff's 76 Motion Informing the Court Plaintiff Indigent for Money for Witness signed by Magistrate Judge Barbara A. McAuliffe on 2/13/2013. (Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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LAMONT SHEPARD,

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CASE NO. 1:10-cv-00023-BAM PC

Plaintiff,

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v.

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ORDER REGARDING PLAINTIFF’S MOTION
INFORMING THE COURT PLAINTIFF
INDIGENT FOR MONEY FOR WITNESS

R. PEREZ, et al.,

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(ECF No. 76)
Defendants.
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Plaintiff Lamont Shepard (“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 complaint against Defendants L.A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz

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and A Trevino for excessive force in violation of the Eighth Amendment. A telephonic trial

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confirmation hearing is set for March 15, 2013, and a jury trial is set for May 6, 2013.

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On November 6, 2012, the Court issued a Second Scheduling Order. (ECF No. 65.) On

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January 18, 2013, the Court issued an Amended Second Scheduling Order. (ECF No. 73.) Both

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orders informed Plaintiff of the procedures for obtaining the attendance of witnesses at trial,

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including the required payment of witness fees for unincarcerated witnesses that refuse to testify

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voluntarily.

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On January 30, 2013, Plaintiff filed the instant motion to inform the Court that he is indigent

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and that he cannot afford to submit money orders for unincarcerated witnesses that refuse to testify

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voluntarily. Plaintiff now seeks the Court’s direction. At this time, the Court reiterates that no

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statute authorizes the expenditure of public funds for witness fees in civil cases such as this one.
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Thus, even if Plaintiff is proceeding in forma pauperis, he must tender witness fees and travel

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expenses to secure the attendance of unincarcerated witnesses that refuse to testify voluntarily.

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As previously instructed, if Plaintiff wishes to obtain the attendance of one or more

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unincarcerated witnesses who refuse to testify voluntarily, Plaintiff must first notify the Court in

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writing of the name and location of each unincarcerated witness. The Court will calculate the travel

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expense for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then,

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for each witness, submit a money order made payable to the witness for the full amount of the

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witness’s travel expenses plus the daily witness fee of $40.00. A subpoena will not be served upon

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the unincarcerated witness by the United States Marshal unless the money order is tendered to the

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Court. If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse

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to testify voluntarily, Plaintiff must submit the money orders to the Court no later than March

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15, 2013. In order to ensure timely submission of the money orders, Plaintiff should notify the Court

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of the names and locations of his witnesses, in compliance with the Amended Second Scheduling

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Order, as soon as possible.

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To the extent Plaintiff is requesting the expenditure of public funds for the payment of
witness fees and travel expenses, his request is DENIED.
IT IS SO ORDERED.
Dated:
10c20k

February 13, 2013

/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE

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