Carbajal v. Warner et al

Filing 902

ORDER. Plaintiff's Motion for Reconsideration and Contemporaneous Objection to the Court's Intentional Violation of his First and Fourteenth Amendment Rights 899 is granted. Plaintiff's Motion and Affidavit for Leave to Proceed Pursu ant to 28 U.S.C. § 1915 900 is granted. The Clerk of the Court shall issue trial subpoenas for the date the trial is reset. The United States Marshals Service for the District of Colorado shall serve the subpoenas issued herein. The witness fees, mileage and subsistence of said witnesses shall be paid by plaintiff Dean Carbajal. By Judge Philip A. Brimmer on 1/4/17. (pabsec)

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 Reconsideration and
Contemporaneous Objection to the Court’s Intentional Violation of his First and
Fourteenth Amendment Rights [Docket No. 899] and Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 [Docket No. 900]. Because plaintif f is
proceeding pro se, the Court construes his filings liberally. See Haines v. Kerner, 404
U.S. 519, 520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
Plaintiff previously filed subpoenas with the Court and requested that the Court
direct the Clerk of Court to stamp the subpoenas and order the U.S. Marshals Service
to effectuate service. Docket No. 869. The Court denied plaintiff’s motion without
prejudice, pointing out that plaintiff has not been granted leave to proceed in forma
pauperis and that the Court does not have the authority to waive payment of witness
fees and mileage. Docket No. 894. In response, plaintiff filed the motions referred to

above. Docket Nos. 899, 900.
In his motion for reconsideration, plaintiff argues that the Court erred in finding
that plaintiff has not been granted such leave in this case. Docket No. 899 at 2.
Plaintiff identifies an order of the Tenth Circuit Court of Appeals granting him in forma
pauperis status. See Docket No. 569. That order deferred ruling on the substance of
plaintiff’s request until a later time.1 Id. at 1. The Tenth Circuit later denied plaintiff’s
request to proceed in forma pauperis when it considered the substance of plaintiff’s
appeal. Docket No. 606 at 12. Mr. Carbajal does not point to any other order in this
case granting him the ability to proceed in forma pauperis.
Plaintiff also notes that he has been granted leave to proceed in forma pauperis
in a number of other cases. Docket No. 899 at 2. Plaintiff, however, cannot rely on his
status from other cases; he is required to request leave to proceed in forma pauperis in
this case. See 28 U.S.C. § 1915(a) (requiring an affidavit describing the “nature of the
action, defense or appeal” for which a party requests leave to proceed in forma
pauperis).
As a fallback to his motion for reconsideration, plaintiff requests leave to proceed
in forma pauperis. Docket No. 900. Under 28 U.S.C. § 1915, “any court of the United
States may authorize the [] prosecution . . . of any suit, action or proceeding . . . without
prepayment of fees or security therefor,” if the requesting prisoner submits an affidavit
stating all of the prisoner’s assets, confirms his inability to pay court fees, and states the

1

On April 8, 2013, plaintiff filed a motion in the district court for leave to proceed
in forma pauperis on appeal. Docket No. 473. The Court denied the motion because it
was not filed on the proper form. See Docket No. 476. The Court stated that a new
motion could be filed in the Tenth Circuit. Id.
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nature of the action and the affiant’s belief that he is entitled to redress. 28 U.S.C.
§ 1915. In addition, the prisoner must “submit a certified copy of the trust fund account
statement . . . for the prisoner for the 6-month period immediately preceding the filing of
the complaint.” Id. The Court finds that plaintiff’s motion complies with all of the
requirements of 28 U.S.C. § 1915. Plaintiff will therefore be granted leave to proceed in
forma pauperis in this case.2
Because plaintiff will be proceeding in forma pauperis, it is proper for the U.S.
Marshals to effectuate service on behalf of plaintiff. See Fed. R. Civ. P. 4(c)(3) (“At the
plaintiff’s request, the court may order that service be made by a United States marshal
or deputy marshal or by a person specially appointed by the court. The court must so
order if the plaintiff is authorized to proceed in forma pauperis under 28 U.S.C.
§ 1915”); 28 U.S.C. § 1915(a) (“The officers of the court shall issue and serve all
process, and perform all duties in such cases.”). Thus, because plaintiff is now
proceeding in forma pauperis, the Court will order the U.S. Marshals Service to
effectuate service of the subpoenas identified in this order on plaintiff’s behalf.
However, as the Court noted in its prior order, plaintiff’s in forma pauperis status
does not authorize the Court to waive or order payment of witness fees and mileage.
Docket No. 894 at 2 (citing Hooper v. Tulsa Cty. Sheriff Dep’t, 1997 WL 295424 at *2
(10th Cir. Jun. 4, 1997) (unpublished) (“Every circuit considering this issue has held that
§ 1915(a)’s waiver of prepayment of ‘fees or costs’ does not authorize the federal

2

Because plaintiff has already paid the filing fee in this case, Docket No. 1, the
Court does not address the requirements of 28 U.S.C. § 1915(b), which discuss how
filing fees are to be paid.
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courts to waive or order payment of witness fees for a civil litigant proceeding in forma
pauperis.”) (citations omitted)). Plaintiff argues that 28 U.S.C. §§ 1825(c) and 1920(3)
allow the Court to compel material witnesses to attend trial. Docket No. 899 at 4.
Section § 1825(c) authorizes service of subpoenas without prepayment on behalf of an
in forma pauperis party in proceedings where “the United States or an officer or agency
of the United States is a party,” in 28 U.S.C. § 2255 proceedings, or habeas corpus
proceedings. 28 U.S.C. § 1825(c). None of those circumstances is present in this
case. Section 1920(3) addresses the taxation of costs and confers no authority on the
Court to waive plaintiff’s witness fees and mileage. As a result, plaintiff will need to
tender witness fees and mileage to his witnesses independently of the Marshals’
service of the subpoenas. 3 See Wright & Miller, Federal Practice and Procedure (Civil
2d) § 2454 (“Failure to tender the appropriate sums at the time the subpoena is served
invalidates the subpoena.”). Plaintiff is obligated to ensure that each subpoenaed
witness receives the appropriate sum.
Plaintiff’s trial is set to commence on January 9, 2017. A criminal trial set that
date, however, has priority over this matter. As such, this trial will be reset and plaintiff
will have additional time to serve his witnesses.

3

Fed. R. Civ. P. 45(b)(1) states that “if the subpoena requires [a] person's
attendance, [serving the subpoena requires] tendering the fees for 1 day's attendance
and the mileage allowed by law.” Each witness must be paid an attendance fee of $40
per day for each day's attendance. 28 U.S.C. § 1821(b). Each witness must also be
paid a mileage allowance based on the rate the Administrator of General Services
prescribes for employees of the Federal Government, with distance to be computed by
reference to the uniform table of distances adopted by the Administrator. See 18
U.S.C. § 1821(c)(2). The General Services Administration website currently indicates
that the mileage allowance is $0.535 per mile. See www.gsa.gov.
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For the foregoing reasons, it is
ORDERED that plaintiff’s Motion for Reconsideration and Contemporaneous
Objection to the Court’s Intentional Violation of his First and Fourteenth Amendment
Rights [Docket No. 899] is granted. It is further
ORDERED that plaintiff’s Motion and Affidavit for Leave to Proceed Pursuant to
28 U.S.C. § 1915 [Docket No. 900] is granted. It is further
ORDERED that the Clerk of the Court shall issue trial subpoenas for the
following witnesses for the date the trial is reset:
Adam Barrett, Former Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
Jay Lopez, Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
Larry Black, Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
Steve Carter, Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
James Mullins, Former Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
Ron Thomas
1331 Cherokee St.
Denver, CO 80204
Benjamin Kaufman, Denver Health Medical Center
660 Bannock St.
Denver, CO 80204

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Perry Speelman, Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
Stephan Swan
13102 Elizabeth Pl.
Thornton, CO 80233
Anthony Schluck, Former Denver Police Officer
1331 Cherokee St.
Denver, CO 80204
It is further ORDERED that the United States Marshals Service for the District of
Colorado shall serve the subpoenas issued herein. It is further
ORDERED that the witness fees, mileage and subsistence of said witnesses
shall be paid by plaintiff Dean Carbajal.

DATED January 4, 2017.
BY THE COURT:

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

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