Kietty v. Walker et al

Filing 93

ORDER DENYING 92 Plaintiff's Motion for Waiver of Witnesses Fees signed by Magistrate Judge Stanley A. Boone on 1/9/2017. (Jessen, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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HUSSEIN ALI KIETTY,

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Plaintiff,
v.
A. WALKER, et al.,
Defendants.

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Case No.: 1:13-cv-00312-SAB (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR WAIVER OF WITNESSES FEES
[ECF No. 92]

Plaintiff Hussein Ali Kietty is appearing pro se and in forma pauperis in this civil rights action

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pursuant to 42 U.S.C. § 1983. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the

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jurisdiction of the United States Magistrate Judge. Local Rule 302.

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Currently before the Court is Plaintiff’s motion entitled “Motion in Limine Requesting

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Plaintiff’s fee waiver application and approval seeking witness testimony under Evidence

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Insufficiently Excused.” Plaintiff “seeks fee waiver application under indigent status unable to pay

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Marshall service subpoena orders[.]” Plaintiff’s motion must be denied.

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As explained in the Court’s November 20, 2016, trial scheduling order, no statute authorizes

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the use of public funds for service of unincarcerated witnesses who refuse to testify voluntarily in civil

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cases, and the tendering of witness fees and travel expenses is required even if the party was granted

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leave to proceed in forma pauperis. (Order at 2-3; ECF No. 88.) Thus, in forma pauperis parties, such

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as Plaintiff, must pay the applicable fees before any subpoena can be served under 28 U.S.C. §
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1915(d). See Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (“Although the plain language of

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section 1915 provides for service of process for an indigent’s witnesses, it does not waive payment of

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fees or expenses for those witnesses.”). Accordingly, there is no authority to grant Plaintiff’s motion

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for waiver of fees to subpoena witnesses for trial, and Plaintiff’s motion must be denied. As noted,

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Plaintiff was apprised of the procedures for obtaining the attendance of unincarcerated witnesses who

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refuse to testify voluntarily and Plaintiff must comply with such procedures.

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IT IS SO ORDERED.

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Dated:

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January 9, 2017
UNITED STATES MAGISTRATE JUDGE

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