Carbajal v. Warner et al
ORDER. ORDERED that Mr. Carbajals Contemporaneous Objection to the Courts Order [# 902] Denying Advancement of Witness Fees Without the Proper Consideration for its Inherent Authority and Rule 614(a) and 706(b) Fed. R. Evid. 920 , construed as a motion for reconsideration, is denied. Signed by Judge Philip A. Brimmer on 06/19/17. (jhawk, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 10-cv-02862-PAB-KLM
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
This matter is before the Court on Mr. Carbajal’s Contemporaneous Objection to
the Court’s Order [# 902] Denying Advancement of Witness Fees Without the Proper
Consideration for its Inherent Authority and Rule 614(a) and 706(b) Fed. R. Evid.
[Docket No. 920]. Because plaintiff 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 a motion for
reconsideration and a motion for leave to proceed in forma pauperis. Docket Nos. 899,
900. On January 4, 2017, the Court granted plaintiff leave to proceed in forma pauperis
and ordered the U.S. Marshals Service to effectuate service of plaintiff’s subpoenas.
Docket No. 902 at 3. However, the Court noted that 28 U.S.C. § 1915 does not
authorize the Court to waive or order payment of witness fees and mileage. Id.
Accordingly, the Court ordered plaintiff to ensure that the subpoenaed witnesses
receive the appropriate witness fees and mileage. Id. at 4. On February 13, 2017,
plaintiff filed his objection to the portion of the Court’s order requiring him to pay witness
fees. Docket No. 920. Because plaintiff’s objection attacks the legal basis for the
Court’s prior ruling, the Court will construe his objection as a motion for reconsideration.
The Federal Rules of Civil Procedure do not specifically provide for motions for
reconsideration. See Hatfield v. Bd. of County Comm’rs for Converse County, 52 F.3d
858, 861 (10th Cir. 1995). Instead, motions for reconsideration fall within a court’s
plenary power to revisit and amend interlocutory orders as justice requires. See
Paramount Pictures Corp. v. Thompson Theatres, Inc., 621 F.2d 1088, 1090 (10th Cir.
1980) (citing Fed. R. Civ. P. 54(b)); see also Houston Fearless Corp., 313 F.2d at 92.
However, in order to avoid the inefficiency which would attend the repeated
re-adjudication of interlocutory orders, judges in this district have imposed limits on their
broad discretion to revisit interlocutory orders. See, e.g., Montano v. Chao, No. 07-cv00735-EWN-KMT, 2008 WL 4427087, at *5-6 (D. Colo. Sept. 28, 2008) (a pplying Rule
60(b) analysis to the reconsideration of interlocutory order); United Fire & Cas. Co. v.
McCrerey & Roberts Constr. Co., No. 06-cv-00037-WYD-CBS, 2007 WL 1306484, at
*1-2 (D. Colo. May 3, 2007) (applying Rule 59(e) standard to the reconsideration of the
duty-to-defend order). Regardless of the analysis applied, the basic assessment tends
to be the same: courts consider whether new evidence or legal authority has emerged
or whether the prior ruling was clearly in error. Motions to reconsider are generally an
inappropriate vehicle to advance “new arguments, or supporting facts which were
available at the time of the original motion.” Servants of the Paraclete v. Does, 204
F.3d 1005, 1012 (10th Cir. 2000).
In his objection, construed as a motion for reconsideration, plaintiff presents two
arguments: first, that the Court “narrowly construed the language in Title 28 U.S.C.
§ 1915 as a basis to prohibit IFP civil rights litigants from subpoenaing material
witnesses”; and, second, that the Court overlooked its “inherent authority to compel
witnesses to appear.” Docket No. 920 at 2. As to the f irst argument, plaintiff does not
offer new legal authority to show that the Court’s reading of § 1915 was incorrect.
Compare Docket No. 920 at 2 (citing Guy v. Maio, 227 F.R.D. 498, 501 (E.D. W is.
2005); Coleman v. St. Vincent De Paul Soc., 144 F.R.D. 92, 95-96 (E.D. Wis. 1992);
U.S. Marshals Serv. v. Means, 741 F.2d 1053, 1057-58 (8th Cir. 1984)) with Docket No.
899 at 2, 4 (same). Moreover, each of the authorities offered by plaintiff acknowledges
that the weight of authority does not allow a court to advance or pay witness fees on
behalf of indigent plaintiffs. See Guy, 227 F.R.D. at 501-02 (citing cases from the
Seventh, Second, Third and First Circuits); Coleman, 144 F.R.D. at 94; Means, 741
F.2d at 1056. Nothing in plaintiff’s objection undermines the Court’s interpretation of
§ 1915 or suggests that the Tenth Circuit would go against the weight of legal authority.
See also Hooper v. Tulsa County Sheriff Department, 1997 WL 295424 at *2 (10th Cir.
Jun. 4, 1997) (“Every circuit considering this issue has held that § 1915(a)’s waiver 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.”).
As to plaintiff’s second argument, that the Court has inherent authority to compel
the appearance of witnesses, plaintiff offers no legal authority to support his contention,
see Docket No. 920 at 2-3, nor does he present any new arguments in support of his
claim. See Docket No. 899 at 4 (arguing that the Court has the inherent power to
compel witnesses to appear). “The established rule is that the expenditure of public
funds is proper only when authorized by Congress.” United States v. MacCollom, 426
U.S. 317, 321 (1976). The Court does not have the authority to use public funds to pay
for plaintiff’s witnesses in the absence of statutory authorization. While plaintiff briefly
points to Fed. R. Evid. 614 and 706, Docket No. 920 at 2, neither rule discusses the
payment of witness fees on behalf of an indigent plaintiff in a civil matter. See Fed. R.
Evid. 614 (discussing the court’s authority to call witnesses); Fed. R. Evid. 706
(discussing the appointment of expert witnesses).
Plaintiff’s objection presents no valid grounds for reconsidering the Court’s prior
decision. Accordingly, it is
ORDERED that Mr. Carbajal’s Contemporaneous Objection to the Court’s Order
[# 902] Denying Advancement of Witness Fees Without the Proper Consideration for its
Inherent Authority and Rule 614(a) and 706(b) Fed. R. Evid. [Docket No. 920],
construed as a motion for reconsideration, is denied.
DATED June 19, 2017.
BY THE COURT:
s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge
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