Mackey v. Woodson et al

Filing 204

ORDER denying without prejudice 197 Motion for Writ of Habeas Corpus ad Testificandum; denying without prejudice 198 Motion for Writ of Habeas Corpus ad Testificandum; denying without prejudice 199 Motion for Writ of Habeas Corpus ad Test ificandum; denying without prejudice 200 Motion for Writ of Habeas Corpus ad Testificandum; denying as moot 201 Motion for Appointment of Advisory Counsel ; denying without prejudice 202 Motion for Motion for Subpoenas, by Magistrate Judge Scott T. Varholak on 1/29/2019. (jgonz, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Civil Action No. 17-cv-01341-CMA-STV
WALDO MACKEY,
Plaintiff,
v.
BRIDGETTE WATSON and
SUSAN PRIETO,
Defendants.
______________________________________________________________________
ORDER
______________________________________________________________________
Magistrate Judge Scott T. Varholak
This matter comes before the Court on six Motions filed by Plaintiff [##197-202]:
(1) four Motions for Writ of Habeas Corpus Ad Testificandum, which seek to bring Plaintiff
and three inmate witnesses before this Court for trial [##197-200]; (2) Plaintiff’s “Motion
for Appointment of Advisory Counsel” [#201]; and (3) Plaintiff’s “Motion for the U.S.
Marshals to Serve Correctional Officers in the Facility” (“Motion for Subpoenas”) [#202]
(collectively the “Motions”). 1 The Motions have been referred to this Court. [#203] For
the following reasons, the Motions are DENIED.

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Because Plaintiff is proceeding pro se, the Court must liberally construe his pleadings
and hold them to “a less stringent standard than formal pleadings drafted by lawyers.”
Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court, however, cannot
“assume the role of advocate for the pro se litigant.” Id.

I.

MOTIONS FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM
In Plaintiff’s four Motions for Writ of Habeas Corpus Ad Testificandum, Plaintiff

requests that Warden Scott Dauffenbach be ordered to bring Plaintiff and three other
inmate witnesses to testify on Plaintiff’s behalf at trial. [##197-200] Plaintiff argues that
his case “depends in large part on the testimony” of these witnesses, and that the “jury
should be allowed to hear” the witnesses “testify personally” and “observe [their]
demeanor.” [Id.]
"The authority to issue writs of habeas corpus ad testificandum is expressly
conferred by 28 U.S.C. 2241(c)(5)," and allows a federal court in its discretion "to secure
the appearance of a state or federal prisoner as a witness in federal court." Mitchell v.
Howard, No. 14-CV-1068-WYD-NYW, 2015 WL 5728765, at *2 (D. Colo. Sept. 30, 2015).
“A prisoner does not have an absolute right to be present at his civil trial or pretrial
proceedings,” and "[i]n determining whether to grant the writ, the court must weigh the
prisoner's need to be present against concerns of expense, security, logistics and docket
control." Id. (quoting Hawkins v. Maynard, 89 F.3d 850, 1996 WL 335234, at *1 (10th Cir.
June 18, 1996)). The United States Supreme Court has held that the statute does not
authorize a federal court to direct a writ of habeas corpus ad testificandum to parties who
do not have custody of the person incarcerated. Penn. Bureau of Corr. v. U.S. Marshals
Service, 474 U.S. 34, 38 (1985).
Here, Plaintiff seeks to direct the writs to Warden Dauffenbach, who appears to be
the warden of Arrowhead Correctional Center. See Public Prisons, Address and Phone
Number Information, Colorado.gov, https://www.colorado.gov/pacific/cdoc/address-andphone-number-information (last visited Jan. 29, 2019); see also Fortner v. Cty. of El Paso,

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No. 15-cv-00644-WJM-NYW, 2015 WL 10384289, at *6 n.8 (D. Colo. Dec. 9, 2015)
(noting court may take judicial notice of the contents of a government website),
recommendation adopted, 2016 WL 806751 (D. Colo. Mar. 2, 2016). Plaintiff is in custody
at Fremont Correctional Facility, and according to the Motions for Writ of Habeas Corpus
Ad Testificandum, the other witnesses that Plaintiff seeks to bring to his trial are
incarcerated at Fremont Correctional Facility [#198], Colorado Territorial Correctional
Facility or Buena Vista Correctional Complex [#199], and Sterling Correctional Facility
[#200]. Therefore, none of the witnesses are housed in Arrowhead Correctional Center
and are not under the requisite custody of Warden Dauffenbach.

Accordingly, the

Motions for Writ of Habeas Corpus Ad Testificandum [##197-200] are DENIED WITHOUT
PREJUDICE. In so holding, the Court makes no decision with respect to whether the
need for Plaintiff and his witnesses to be present at trial outweighs concerns of expense,
security, logistics, and docket control, even if the writs were directed to the proper party.
II.

MOTION FOR APPOINTMENT OF ADVISORY COUNSEL
In Plaintiff’s Motion for Appointment of Advisory Counsel, Plaintiff seeks

appointment of counsel for assistance in the pretrial conference and trial. [#201] Plaintiff
further requests that the Court postpone the pretrial conference and trial until advisory
counsel can be appointed. [Id.]
This Court previously granted Plaintiff's Motion for Appointment of Counsel in
November 2018. [#50] But, despite that Order, there is no guarantee that counsel will
be appointed in this case, as the Court has informed Plaintiff. [##50, 81] Plaintiff remains
responsible for complying with all deadlines and procedures until counsel is appointed.
The Court also notes that no final pretrial conference is currently scheduled, and no trial

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dates have yet been set in this matter. [See #195] Because the Court has already
granted a prior motion for appointment of counsel by Plaintiff, the instant Motion for
Appointment of Advisory Counsel [#201] is DENIED as moot.
III.

MOTION FOR SUBPOENAS
Finally, Plaintiff has filed a Motion for Subpoenas, requesting that the Court

subpoena Plaintiff’s “correctional officer witnesses at the Court’s or the Defendants[’]
expense.” [#202 at 1] In support of that Motion, Plaintiff states that he “has nearly
exhausted his funds.” [Id.]
Federal Rule of Civil Procedure 45(b)(1) states that a subpoena may be served by
any person not a party to the case, and that such service is effectuated by tendering the
subpoena, along with “fees for 1 day’s attendance and the mileage allowed by law” to the
witness. 2 The “authorization to proceed in forma pauperis [(“IFP”)],” under 28 U.S.C. §
1915 “does not excuse a litigant from paying the required witness fees and mileage.”
Davis v. Andujar, No. 08-cv-00245-MSK-KMT, 2009 WL 4908180, at *2 (D. Colo. Dec.
17, 2009). “The expenditure of public funds on behalf of an indigent litigant is only proper
when authorized by Congress,” and because “neither section 1915 nor any other statute
provides such authorization, federal courts lack the authority to waive witness [fees] or
order payment of witness fees on behalf of an [IFP] civil litigant." Id. (collecting cases);
see also Hooper v. Tulsa Cty. Sheriff Dep’t, 113 F.3d 1246, 1997 WL 295424, at *2 (10th

2

One day’s attendance fee for a witness is currently set by statute at $40. 28 U.S.C. §
1821(b). Mileage is payable based on distances and rates established by the General
Services Administration (“GSA”). See id. § 1821(c)(2). The current mileage rate is $0.58
cents per mile for privately owned vehicles, according to the GSA’s website. See Privately
Owned
Vehicle
(POV)
Mileage
Reimbursement
Rates,
GSA,
https://www.gsa.gov/travel/plan-book/transportation-airfare-rates-pov-rates/privatelyowned-vehicle-pov-mileage-reimbursement-rates (last visited Jan. 29, 2019).
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Cir. June 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.”).
Here, Plaintiff has paid the filing fee and is not proceeding IFP. [See ##5, 12] But,
even if he was, Plaintiff has not tendered the requisite witness fees and mileages for the
individuals to be subpoenaed. Moreover, Plaintiff has not offered any description of the
witnesses’ anticipated testimony, how that testimony would be relevant to his claims, or
how the testimony from each of the witnesses would not be redundant or cumulative. See
Fed. R. Evid. 403 (“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of . . . needlessly presenting cumulative evidence.”);
Garner v. United States, 45 F. App’x 326, 2002 WL 1899597, at *6 (5th Cir. July 11, 2002)
(finding no abuse of discretion in court’s refusal to issue a subpoena “where a prisoner
litigant did not state why he needed a witness’s testimony and where the prisoner did not
in fact need the testimony to prove his claim at trial” (citing cases)). Cf. Davis, 2009 WL
4908180, at *2 n.2 (noting that pursuant to plaintiff’s proffer of the witnesses’ anticipated
testimony, each witness appeared to have information relevant to plaintiff’s claims, and
the testimony of each witness did not appear to be redundant or cumulative). For these
reasons, Plaintiff’s Motion for Subpoenas [#202] is DENIED WITHOUT PREJUDICE.
IV.

CONCLUSION
For the foregoing reasons, Plaintiff’s four Motions for Writ of Habeas Corpus Ad

Testificandum [##197-200] are DENIED WITHOUT PREJUDICE, Plaintiff’s Motion for

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Appointment of Advisory Counsel [#201] is DENIED as moot, and Plaintiff’s Motion for
Subpoenas [#202] is DENIED WITHOUT PREJUDICE.

DATED: January 29, 2019

BY THE COURT:
s/Scott T. Varholak
United States Magistrate Judge

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