Shepard v. Tilton et al
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)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
CASE NO. 1:10-cv-00023-BAM PC
ORDER REGARDING PLAINTIFF’S MOTION
INFORMING THE COURT PLAINTIFF
INDIGENT FOR MONEY FOR WITNESS
R. PEREZ, et al.,
(ECF No. 76)
Plaintiff Lamont Shepard (“Plaintiff”) is a state prisoner proceeding pro se and in forma
pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on
Plaintiff’s complaint against Defendants L.A. Martinez, R. Perez, P. Garcia, J. Soto, E. De la Cruz
and A Trevino for excessive force in violation of the Eighth Amendment. A telephonic trial
confirmation hearing is set for March 15, 2013, and a jury trial is set for May 6, 2013.
On November 6, 2012, the Court issued a Second Scheduling Order. (ECF No. 65.) On
January 18, 2013, the Court issued an Amended Second Scheduling Order. (ECF No. 73.) Both
orders informed Plaintiff of the procedures for obtaining the attendance of witnesses at trial,
including the required payment of witness fees for unincarcerated witnesses that refuse to testify
On January 30, 2013, Plaintiff filed the instant motion to inform the Court that he is indigent
and that he cannot afford to submit money orders for unincarcerated witnesses that refuse to testify
voluntarily. Plaintiff now seeks the Court’s direction. At this time, the Court reiterates that no
statute authorizes the expenditure of public funds for witness fees in civil cases such as this one.
Thus, even if Plaintiff is proceeding in forma pauperis, he must tender witness fees and travel
expenses to secure the attendance of unincarcerated witnesses that refuse to testify voluntarily.
As previously instructed, if Plaintiff wishes to obtain the attendance of one or more
unincarcerated witnesses who refuse to testify voluntarily, Plaintiff must first notify the Court in
writing of the name and location of each unincarcerated witness. The Court will calculate the travel
expense for each unincarcerated witness and notify Plaintiff of the amount(s). Plaintiff must then,
for each witness, submit a money order made payable to the witness for the full amount of the
witness’s travel expenses plus the daily witness fee of $40.00. A subpoena will not be served upon
the unincarcerated witness by the United States Marshal unless the money order is tendered to the
Court. If Plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse
to testify voluntarily, Plaintiff must submit the money orders to the Court no later than March
15, 2013. In order to ensure timely submission of the money orders, Plaintiff should notify the Court
of the names and locations of his witnesses, in compliance with the Amended Second Scheduling
Order, as soon as possible.
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.
February 13, 2013
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?