LOVE v. NEW JERSEY DEPARTMENT OF CORRECTIONS et al

Filing 129

LETTER OPINION/ORDER denying w/out prejudice Mr. Love's request for an order directing the Marshals Service to serve a subpoena. Signed by Magistrate Judge Steven C. Mannion on 7/24/17. (DD, ) N/M

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

Chambers of

STEVEN C. MANNION
United States Magistrate Judge

Martin Luther King Jr, Federal Bldg.
& U.S. Courthouse
50 Walnut Street
Newark, NJ 07102
[phone]

July 24, 2017

LETTER ORDER/OPINION
Re:

D.E. 127, 128
Love v. New Jersey Dep’t of Corrections, et al.
Civil Action No. 15cv4404 (SDW)(SCM)

Dear Litigants:
Before this Court are Plaintiff Lemont Love’s (“Mr. Love”) requests for an order directing
the United States Marshals Service (“Marshals Service”) to serve a subpoena.1 Defendants have
not opposed the request. Mr. Love’s requests nonetheless fail to include a statement demonstrating
his need for this relief and do not cite to any authority to support the expenditure of public funds
to cover his litigation expenses. Therefore, his requests are denied without prejudice.
First, Mr. Love has not shown why service of the subpoena by the Marshals Service is
justified. No special agent is required to serve a subpoena. Generally, any person who is “at least
18 years old and not a party” to the suit may serve a subpoena.2 This Court need not determine at
this juncture whether service of a subpoena by certified mail is appropriate but it is clear that Mr.

(ECF Docket Entry No. (“D.E.”) 127, 128). The subpoena was not added to the docket until
Mr. Love’s second request was entered on 7/21/2017.
1

2

FED. R. CIV. P. 45(b)(1).

Love has access to the mail and that such service has been described as a “sensible option” to
reduce “the costs of litigation.”3
Second, though this Court may order the Marshals Service to serve a subpoena,4 Mr. Love’s
request has not accounted for the fee and costs to be tendered. When attendance is required to
respond to a subpoena, the person serving the subpoena must tender “the fees for 1 day’s
attendance and the mileage allowed by law.”5 The present subpoena commands that the New
Jersey Department of Corrections Custodian of Records (the “Custodian”) produce “all documents
concerning [Mr. Love’s] transfer from” one prison to another at East Jersey State Prison.6
Alternatively, it provides that the Custodian “can mail documents to [the] address below.”7 Mr.
Love’s request has made no provision for the attendance option or costs of production.
Congress has empowered the Marshals Service to serve subpoenas at the direction of a
district court.8 The circumstances in which the Marshals Service may tender a witness fee is

3

Ott v. City of Milwaukee, 682 F.3d 552, 557 (7th Cir. 2012). See New Jersey Bldg. Laborers
Statewide Ben. Funds & Trustees Thereof v. Torchio Bros., No. 08-552, 2009 WL 368364, at *2
(D.N.J. Feb. 11, 2009) (holding that “[c]ertified mail serves the same purpose as Rule 45(b)” and
finding that petitioner’s compliance with Rule 45 and personal delivery through certified mail
with proof of receipt of the certified letter rendered a subpoena valid) (internal citations omitted);
Doe v. Hersemann, 155 F.R.D. 630, 630–31 (N.D. Ind. 1994) (holding that FED. R. CIV. P. 45
permits service of a subpoena by certified mail). See also New Jersey Bldg. Laborers’ Statewide
Ben. Funds & the Trustees Thereof v. Gen. Civil Corp., No. 08-6056, 2009 WL 2778313, at *2
(D.N.J. Sept. 1, 2009).
4

28 U.S.C. § 566(a).

5

FED. R. CIV. P. 45(b)(1).

6

(D.E. 127-1).

7

(Id.).

8

28 U.S.C. §§ 565, 566(a).
2

prescribed by statute9 and the those situations do not apply to an indigent civil litigant in a case
not involving the United States.
The Supreme Court has stated that “expenditure of public funds [on behalf of an indigent
litigant] is proper only when authorized by Congress.”10 Likewise, the United States Constitution
prohibits the expenditure of funds drawn from the Treasury, except as approved by appropriations
made by law.11 The Antideficiency Act also prohibits obligating the United States Government
“for the payment of money before an appropriation is made unless authorized by law.”12 Therefore,
requiring the Marshals Service to pay a witness fee for Mr. Love would only be appropriate if
authorized by federal law and there is an appropriation for such an expense.
Mr. Love is an indigent civil litigant proceeding in forma pauperis under 28 U.S.C. § 1915.
The Eighth Circuit Court of Appeals previously considered “the expenditure of federal funds for
fees and expenses of witnesses subpoenaed by indigent civil litigants.”13 In Means, the Marshals
Service appealed a district court order that it serve subpoenas and pay fees and costs for
subpoenaed witnesses to appear. The Eighth Circuit held that Section 1915 “neither expressly nor
implicitly authorizes the prepayment of the witness fees and expenses” by the government for an
indigent civil litigant.14 Several cases in this Circuit have reached the same conclusion.15 The

9

28 U.S.C. § 1825 (payment of witness fee in case involving the United States).

10

United States v. MacCollom, 426 U.S. 317, 321, 96 S. Ct. 2086, 2089–90, 48 L. Ed. 2d 666
(1976).
11

U.S. Const. art. I, § 9, cl. 7.

12

31 U.S.C. § 1341(a)(1)(B).

U.S. Marshals Serv. v. Means, 724 F.2d 642, 643 (8th Cir. 1983), on reh’g 741 F.2d 1053 (8th
Cir. 1984).
13

14

Id. at 646.
3

Circuit noted that authority to pay witness fees and expenses exists where the United States is a
party to a civil or criminal case,16 and for “the service of subpoenas without cost to indigent
criminal defendants[ ].”17 This Court is unaware of any parallel or “similar provision . . . on behalf
of an indigent party in civil actions.”18
Mr. Love’s request for an order directing the Marshals Service to serve a subpoena is
denied without prejudice. The Court will reconsider this issue if Mr. Love shows justification
for his request and cites authority for the Marshals Service to tender a witness fee on his behalf.19
IT IS SO ORDERED.

7/24/2017 5:53:30 PM

Original: Clerk of the Court
See also Tabron v. Grace, 6 F.3d 147, 158–59 (3d Cir. 1993) (“There is no provision in [28
U.S.C. § 1915] for the payment by the government of the costs of deposition transcripts, or any
other litigation expenses, and no other statute authorizes courts to commit federal monies for
payment of the necessary expenses in a civil suit brought by an indigent litigant”) (internal
citation omitted); Augustin v. New Century TRS Holding, Inc., No. 08-326, 2008 WL 5114268, at
*3 (W.D. Pa. Nov. 25, 2008) (same); McAleese v. Owens, No. 88-1669, 1991 WL 329930, at *4–
5 (W.D. Pa. Dec. 5, 1991) (internal citations omitted).
15

16

28 U.S.C. § 1825.

17

FED. R. CRIM. P. 17(b).

18

McAleese, 1991 WL 329930, at *5.

See Badman v. Stark, 139. F.R.D. 601, 605 (M.D. Pa. 1991) (noting that “the Clerk be ordered
to refuse . . . requests for the issuance of subpoenas” where an in forma pauperis plaintiff has not
demonstrated that he has made a provision for the costs of the discovery).
4
19

Hon. Susan D. Wigenton, U.S.D.J.
cc: All parties
File
Mr. Lemont Love
670637/331321C
East Jersey State Prison
Lockbag R
Rahway, NJ 07065

5