McNeal v. Evert, et al

Filing 252

ORDER signed by District Judge Garland E. Burrell, Jr. on 2/5/2016 ORDERING Plaintiff's objection, seeking reconsideration of the Magistrate Judge's 1/12/2016 order is DENIED. (Reader, L)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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No.

2:05-cv-00441-GEB-EFB

Plaintiff,
v.

ORDER DENYING PLAINTIFF’S
RECONSIDERATION REQUEST

LOCKIE, ERVIN, CHATHAM, and
VAN LEER,
Defendants.

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On January 26, 2016, Plaintiff filed an objection, in

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which he seeks reconsideration of the Magistrate Judge’s January

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12, 2016 order denying his request for a waiver of witness fees.

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(Pl.’s

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Magistrate

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stating, inter alia:

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Mot.

&

Decl.

Judge

Objecting

denied

to

Order,

Plaintiff’s

ECF

request

No.
in

248.)
that

[P]laintiff’s in forma pauperis status does
not provide the court with authority to waive
witness fees and travel expenses. Tedder v.
Odel, 890 F.2d 210, 211 (9th Cir. 1989). In
extraordinary
circumstances,
it
may
be
possible for the court to order payment of
witness fees out of its non-appropriated
fund. See Giraldes v. Prebula, No. S-01-2110
LKK/EFB, 2012 U.S. Dist. LEXIS 54620, at *3-5
(E.D. Cal. Apr. 18, 2012) (citing United
States
Administrative
Office
Guide
to
Judiciary Policy, Vol. 13, § 1220); Whitfield
v. Hernandez, No. 1:13-cv-0724-JLT, 2015 U.S.
Dist. LEXIS 154013, at *3-4 (Nov. 12, 2015).
Plaintiff has not presented extraordinary
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The

order

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circumstances here. He has provided no
explanation
of
why
each
unincarcerated
witness is necessary. Many of plaintiff’s
proposed witnesses also appear on defendants’
witness list and plaintiff will be permitted
to question any witness defendants present.
ECF No. 180 at 12-15. The court’s nonappropriated fund is simply too meager to
cover the witness expenses for every indigent
litigant
in
the
district.
Accordingly,
plaintiff’s request for a waiver of witness
fees is denied.

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(Order 1:23-2:7, ECF No. 242.)
Plaintiff

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avers

in

support

of

his

objection,

in

relevant part:

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[The Magistrate Judge’s January 12, 2016
Order] on page 2 lines 3-4 state[s] that
“Many of plaintiff’s proposed witnesses also
appear
on
defendants[’]
witness
list.
Plaintiff object[s] to this. Plaintiff’s list
ha[s] doctors that have treated plaintiff.
Defendants[’] list does not. Defendants[’]
witness Chief Medical Executive Dr. Swingle[]
is what her title . . . stat[es,] an
executive[,
who]
has
never
examine[d]
plaintiff about injuries attach[ed] to this
excessive force. This presents extraordinary
circumstances. Plaintiff[’s] witnesses are
doctors.

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Plaintiff
is
requesting
that
[the
C]ourt[]
make
non-appropriated
fund[s]
available for Dr. Miller (H.D.S.P.) for
testimony about plaintiff’s testicle injury.
Dr. Jackson (Corcoran) for testimony about
plaintiff’s neck injury and Dr. Rouch NP-C
(Corcoran) for testimony about plaintiff’s
left shoulder injury. These three doctors
do[] not appear on defendants[’] witness
list.

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(Pl.’s Decl. ISO Obj. && 4-5, ECF No. 248 (paragraph numbers

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omitted).)

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Local

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Rule

303(f)

Judge

shall

use

in

states:

“[t]he

standard

[reconsideration

a

the

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assigned

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Judge’s ruling] is the ‘clearly erroneous or contrary to law’
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of

that

Magistrate

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standard set forth in 28 U.S.C. § 636(b)(1)(A).” “A [M]agistrate

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[J]udge’s

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district court is left with the definite and firm conviction that

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a mistake has been committed.” Mackey v. Frazier Park Pub. Util.

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Dist., No. 1:12-CV-00116-LJO-JLT, 2012 WL 5304758, at *2 (E.D.

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Cal.

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Teamsters, 124 F.3d 999, 1014 (9th Cir. 1997)). “An order ‘is

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contrary to law when it fails to apply or misapplies relevant

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statutes, case law, or rules of procedure.’” Id. (quoting Knutson

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v. Blue Cross & Blue Shield of Minn., 254 F.R.D. 553, 556 (D.

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Minn. 2008)).

factual

Oct.

25,

findings

2012)

are

(quoting

‘clearly

Sec.

erroneous’

Farms

v.

when

Int’l

Bhd.

the

of

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Plaintiff has not shown that the Magistrate Judge’s

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decision denying his request to waive witness fees was clearly

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erroneous or contrary to law. “The magistrate judge correctly

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ruled that 28 U.S.C. § 1915, the in forma pauperis statute, does

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not waive payment of fees or expenses for witnesses.” Dixon v.

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Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (citing Teddler v. Odel,

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890 F.2d 210, 211-12 (9th Cir. 1989)). Further, although this

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Court

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prescribes a procedure whereby “pro bono counsel appointed in

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indigent pro se civil cases” may “request reimbursement from the

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Court’s Non Appropriated Fund . . . [for] certain expenses[,]”

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Plaintiff

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request since he is unrepresented. See Antonetti v. Dist. Court,

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No. 3:10-cv-00158-LRH-WGC, 2013 U.S. Dist. LEXIS 20124, at *14

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(Feb. 13, 2013) (“While it is true that the District of Nevada,

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like the [Eastern District of California] has a ‘non-appropriated

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fund,’ distributions from that fund may be made to reimburse out-

has

a

has

non-appropriated

not

shown

that

fund,

this

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and

General

General

Order

Order

governs

510

his

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of-pocket expenses incurred by court-appointed attorneys. Since

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no attorney has been appointed for Plaintiff, this provision is

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seemingly unavailable for the provision of . . . witness fees in

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this case.”). “The availability of limited non-appropriated funds

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does not translate into a generalized right for a pro se litigant

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to

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Whitfiled v. Hernandez, No. 1:13-cv-0724-JLT, 2015 U.S. Dist.

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LEXIS 154013, at *3 (E.D. Cal. Nov. 12, 2015).

have

his

costs

of

litigation

paid

out

of

these

funds.”

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For the stated reasons, Plaintiff’s objection, seeking

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reconsideration of the Magistrate Judge’s January 12, 2016 order

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is DENIED.

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Dated:

February 5, 2016

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