Claiborne v. Blauser et al

Filing 156

ORDER signed by Magistrate Judge Edmund F. Brennan on 5/21/15 DENYING 154 Motion for an order for the U.S. Marshal to serve subpoenas.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DENNIS GERALD CLAIBORNE,

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No. 2:10-cv-2427 JAM EFB P

Plaintiff,
v.

ORDER

J. BLAUSER, et al.,
Defendants.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. The pretrial order in this action issued on March 21, 2014. ECF No. 114. That

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order informed plaintiff that to obtain the presence at trial of any unincarcerated witness, plaintiff

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must tender the daily witness fee and the witness’ travel expenses. Id. at 10. The order instructed

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that “even a plaintiff proceeding in forma pauperis must tender the fees” because “[n]o statute

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authorizes the use of public funds” to cover these costs. Id.

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Despite this admonition, plaintiff now requests an order for the U.S. Marshal to serve

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subpoenas on his unincarcerated witnesses and to “advance the witness fees.” ECF No. 154. The

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Ninth Circuit has held that the in forma pauperis statute, 28 U.S.C. § 1915, does not authorize the

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expenditure of public funds to pay for witness fees and expenses. Tedder v. Odel, 890 F.2d 210,

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211-12 (9th Cir. 1989); see also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993). Accordingly,

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plaintiff’s motion is denied. If plaintiff wishes to obtain the presence at trial of an unincarcerated
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witness, he must follow the instructions provided in the pretrial order, including tendering

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through the U.S. Marshal a money order payable to the witness in the amount of the daily witness

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fee ($40.00) plus the witness’ travel expenses.

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So ordered.
DATED: May 21, 2015.

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