Carbajal v. Warner et al

Filing 894

ORDER. ORDERED that the Motion for an Order Directing the Clerk of Court to Stamp the Attached Subpoenas and the Marshals to Effectuate Service 869 is denied without prejudice. The Court will reconsider the issue upon Mr. Carbajal's tender of witness fees and mileage. Signed by Judge Philip A. Brimmer on 12/19/16. (jhawk, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
DEAN CARBAJAL,
Plaintiff,
v.
GILBERTO LUCIO, in his individual capacity,
JAMES DIXON, in his individual capacity,
MICHAEL O’NEILL, in his individual capacity, and
JEFFREY WATTS, Investigator for the Second Judicial District, in his individual
capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
This matter is before the Court on plaintiff’s Motion for an Order Directing the
Clerk of Court to Stamp the Attached Subpoenas and the Marshals to Ef fectuate
Service [Docket No. 869] and the supplement to the motion [Docket No. 891].
In plaintiff’s motion, he states that he is requesting relief under 28 U.S.C. § 1915.
Docket No. 869 at 1-2. However, contrary to the Court’s assumption at the trial
preparation conference, plaintiff is not proceeding in forma pauperis in this case. See
Docket No. 1. While plaintiff at one time requested leave to proceed on appeal under
28 U.S.C. § 1915, Docket No. 473, that request was denied. Docket No. 476. At no
other time did plaintiff move to proceed in forma pauperis.
Because plaintiff is not proceeding in forma pauperis, the Court does not have
the authority to waive payment for fees and mileage upon service of a subpoena. See
28 U.S.C. § 1825(c) (authorizing service of a subpoena without prepayment of fees and

mileage if the subpoena is issued on behalf of a party authorized to proceed in forma
pauperis and the payment of such fees and mileage is to be made by the United States
Marshal). Even if plaintiff were proceeding in forma pauperis, the Court would not be
authorized to waive payment of witness fees. See Hooper v. Tulsa Cty. Sheriff Dep’t,
1997 WL 295424 at *2 (10th Cir. Jun. 4, 1997) (unpublished) (“§ 1915(a)’s w aiver of
prepayment of ‘fees or costs’ does not authorize the federal courts to waive or order
payment of witness fees for a civil litigant proceeding in forma pauperis.”). Because Mr.
Carbajal “has not tendered the required witness fees and mileage for the persons to be
subpoenaed, service of the subpoenas he has tendered would be futile.” Davis v.
Andujar, No. 08-cv-00245-MSK-KMT, 2009 WL 4908180, at *2 (D. Colo. Dec. 17,
2009).
For the foregoing reasons, it is
ORDERED that the Motion for an Order Directing the Clerk of Court to Stamp the
Attached Subpoenas and the Marshals to Ef fectuate Service [Docket No. 869] is denied
without prejudice. The Court will reconsider the issue upon Mr. Carbajal’s tender of
witness fees and mileage.

DATED December 19, 2016.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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