CARTER v. MARION et al

Filing 60

ORDER setting out issues for trial and directing clerk to issue subpoenas (4) to Plaintiff. Ordered by U.S. District Judge Hugh Lawson on 12/10/2013. (nbp)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
VALDOSTA DIVISION
RAYMOND CARTER JR.,
Plaintiff,
Civil Action No. 7:12-CV-76 (HL)
v.
JOHN MARION, BOBBY GRUNDY,
ROBERT ENGLEMANN, and TIMOTHY
GLASSNER,
Defendants.
ORDER
This case is scheduled for trial the week of January 21, 2014. As ordered by
the Court, Plaintiff has filed his trial brief. In addition, Plaintiff, who is presently
incarcerated and proceeding pro se and in forma pauperis, has requested that the
Clerk’s office issue subpoenas for the production of witnesses at trial. The purpose
of this Order is to clarify one matter prior to trial and to address Plaintiff’s subpoena
request.
As part of its pretrial procedure, the Court requires the parties to provide a
statement of issues for trial. This statement helps guide the Court in structuring the
trial and determining what the jury will hear and decide. In his trial brief, Plaintiff lists
four issues for trial: (1) the release of Defendant Glassner’s canine; (2) the continued
attack by Defendant Glassner’s canine after Plaintiff was out from underneath the

mobile home; (3) the release of Defendant Marion’s canine; and (4) Defendants’
failure to intervene to stop the canine attack.
In light of Plaintiff’s trial brief, it appears there may be some confusion about
the issues left to be tried in this case. In order to resolve any such confusion, the
Court puts the parties on notice that the only issues to be determined by the jury at
the trial of this case are the following: (1) whether Plaintiff’s rights were violated by
virtue of the continued attack by Defendant Glassner’s canine after Plaintiff was out
from underneath the mobile home; and (2) whether Defendants Marion, Englemann,
and Grundy violated Plaintiff’s rights by failing to intervene and stop the continued
attack by Defendant Glassner’s canine. Plaintiff’s claims with respect to the initial
release of Defendant Glassner’s canine and the release of Defendant Marion’s
canine have already been resolved in Defendants’ favor. (See Order at Doc. 53).
The other matter to address is Plaintiff’s request for witness subpoenas.
Plaintiff has identified four witnesses in his trial brief, and the Court assumes those
are the people Plaintiff wishes to subpoena for trial. In accordance with Federal Rule
of Civil Procedure 45, the Clerk of Court is directed to issue four signed, but
otherwise blank, subpoenas to Plaintiff. However, Plaintiff must make appropriate
arrangements if he intends to subpoena witnesses. Rule 45(b)(1) requires that when
a trial subpoena is served, the serving party must tender “the fees for 1 day’s
attendance and the mileage allowed by law.” The amount of the witness fee is set
forth at 28 U.S.C. § 1821, which provides, in part, that a “witness shall be paid an
attendance fee of $40 per day for each day’s attendance.” 28 U.S.C. § 1821(b)(1).

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The witness is also entitled to the costs of round-trip transportation at $0.565 per
mile. Fed.R.Civ.P. 45(b)(1). While Plaintiff has been allowed to proceed in forma
pauperis, he is not excused from tendering the statutory fees due a subpoenaed
witness nor is he entitled to free use of the United States Marshal to effect service of
subpoenas. Smith v. Fla. Dep’t of Corr., 369 F.App’x 36, 38 (11th Cir. 2010) (citing
Lloyd v. McKendree, 749 F.2d 705, 706-07 (11th Cir. 1985)). Thus, Plaintiff must
arrange and pay for service of any subpoenas, and each subpoena which he desires
to have served must be accompanied by the $40 fee for one day’s attendance at trial
and payment at $0.565 per mile for the witness’ mileage to and from the courthouse.
The pre-trial conference in this case will be held on January 6, 2014,
beginning at 9:30 A.M.
SO ORDERED, this the 10th day of December, 2013.

s/ Hugh Lawson______________
HUGH LAWSON, SENIOR JUDGE
mbh

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