LINDSAY v. LEWIS et al

Filing 29

MEMORANDUM OPINION AND ORDER signed by MAG/JUDGE L. PATRICK AULD on 05/29/2012. IT IS THEREFORE ORDERED that Plaintiff's filing entitled "Subpoena in a Civil Case" requesting issuance of subpoenas for service on Defendants (Docket Ent ry 27 ) is GRANTED IN PART AND DENIED IN PART in that the Clerk's Office shall send to Plaintiff signed subpoenas requiring the presence of each Defendant at the scheduled trial of this matter, along with an estimate of the daily travel allow ance for each Defendant under 28 U.S.C. § 1821(c)(2) calculated based on travel between 324 W. Market St., Greensboro, North Carolina, and 214 W. Jones St., Raleigh, North Carolina (for Defendants Lewis and Keller) and 22385 McGirt's Brid ge Rd., Laurinburg, North Carolina (for Defendants Patterson, Martin, Harron, and Jones), but the Court will not order the United States Marshals Service to serve any such subpoena(s) unless Plaintiff returns them to the Clerk's Office along w ith a payment covering the $40 single-day attendance fee and the single-day travel expenses estimated by the Clerk's Office for each returned subpoena. In the event Plaintiff returns a subpoena with the appropriate payment to the Clerk� 39;s Office, the Clerk's Office shall refer the matter to the assigned United States Magistrate Judge for further action to attempt to minimize the accrual of service fees of the United States Marshals Service that, although not due in advance from Plaintiff, will become subject to taxation as costs.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

DERRICK JAVON LINDSAY,

)
)
)
)
)
)
)
)
)

Plaintiff,
v.
ROBERT C. LEWIS, et al.,
Defendants.

1:11CV67

MEMORANDUM OPINION AND ORDER
This matter comes before the Court on Plaintiff’s filing
entitled “Subpoena in a Civil Case,” which states in its entirety:
“[Plaintiff] moves this court pursuant to rule 45 of the Federal
Rules of Civil procedure for an issuance of a SUBPOENA.
request

[sic]

defendants.”

a

SUBPOENA

(Docket

so

Entry

that
27

at

it
1

may

be

Plaintiff

served

(capitalization

on
as

the
in

original).) For the reasons that follow, the Court will direct the
Clerk to send Plaintiff signed subpoenas requiring the presence of
each Defendant at the scheduled trial of this matter; however, the
Court will not order the United States Marshals Service to serve
any such subpoena(s) unless Plaintiff returns them to the Clerk’s
Office along with a $40 attendance fee and travel expenses for one
day for each returned subpoena.

BACKGROUND
This case began when Plaintiff, a state prisoner, filed a pro
se form Complaint under 42 U.S.C. § 1983 (Docket Entry 2), along
with a request to proceed as a pauper (Docket Entry 1).
Complaint named as Defendants:

The

1) Robert C. Lewis, the “Director

of Prisons” for North Carolina’s then-Department of Correction
(Docket Entry 2 at 2); 2) “S. Patterson, Sargeant [sic], Scotland
Correctional Institution” (id.); 3) “M. Martin, Transport Officer,
Scotland

Correctional

Institution”

(id.);

4)

“Joel

Harron,

Superintendent, Scotland Correctional Institution” (id.); 5) “Eric
Jones, Sargeant [sic] of Transportation, Scotland Correctional
Institution” (id. at 3); and 6) Alvin Keller, Jr., “Secretary” of
North Carolina’s then-Department of Correction (id.).
The Court, per United States Magistrate Judge Wallace W.
Dixon, allowed Plaintiff to proceed as a pauper.

(Docket Entries

3, 8.) Upon Defendants answering (Docket Entry 15), the Court, per
United

States

Magistrate

Judge

P.

Trevor

Sharp,

entered

a

Scheduling Order (Docket Entry 16), which permitted discovery until
March 15, 2012 (id. at 1).

After the close of the discovery period

and the passing of the dispositive motions deadline set by M.D.N.C.
LR 56.1(b) without the filing of same, Plaintiff submitted his
instant subpoena request (see Docket Entry 27 at 1) and the Court

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set the case for trial during the April 2013 Master Calendar Term
that commences April 1, 2013 (see Docket Entry 28 at 1).
DISCUSSION
Plaintiff has indicated that he seeks subpoenas for service on
Defendants. (Docket Entry 27 at 1.) In general, “[t]he clerk must
issue a subpoena, signed but otherwise in blank, to a party who
requests it.”

Fed. R. Civ. P. 45(a)(3).

complete [the subpoena] before service.”

“That party [then] must
Id.

However, a litigant

may not use a subpoena for discovery purposes after the close of
discovery.

See Fleetwood Transp. Corp. v. Packaging Corp. of Am.,

No. 1:11MC45, 2011 WL 6151479, at *1-2 (M.D.N.C. Dec. 12, 2011)
(unpublished).

Accordingly, because the discovery deadline passed

before Plaintiff filed his instant request, the Court will not send
Plaintiff signed subpoenas in blank, which he then could complete
in a manner designed to obtain discovery from Defendants.1
Instead, the Court will direct the Clerk to send Plaintiff
signed subpoenas that require the presence of each Defendant at the
scheduled trial.

See id. at *1 n.4 (noting propriety of Rule 45

subpoenas for trial); see also Anthony v. Owen, No. 08-10351, 2012

1

Whether a party ever may use a Rule 45 subpoena to obtain
discovery from another party remains an open question in this
Circuit; “[t]he majority of courts, however, allow Rule 45
subpoenas to be served on parties as well as non-parties.” Neel v.
Mid-Atlantic of Fairfield, LLC, No. SAG-10-CV-405, 2012 WL 98558,
at *1 (D. Md. Jan. 11, 2012) (unpublished). Given the untimeliness
of this request, no need exists to consider that broader issue.
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WL 691756, at *3 (E.D. Mich. Mar. 1, 2012) (unpublished) (“When a
trial date has been set, if Plaintiff wishes to call any witness,
he may seek court-issued subpoenas . . . as provided in Rule 45.”);
Edwards v. Logan, 38 F. Supp. 2d 463, 466 n.2 (W.D. Va. 1999) (“The
Federal Rules of Civil Procedure do not require a party’s presence
at trial.”).

The Court, however, will not yet order the United

States Marshals Service to serve such subpoenas.
“Serving a subpoena requires delivering a copy to the named
person and, if the subpoena requires that person’s attendance,
tendering the fees for 1 day’s attendance and the mileage allowed
by law.”

Fed. R. Civ. P. 45(b)(1); see also 28 U.S.C. § 1821(b)

and (c)(2) (providing that “witness shall be paid an attendance fee
of $40 per day” and mileage allowance prescribed by Administrator
of General Services pursuant 5 U.S.C. § 5704).

As a function of

the above-referenced Orders granting Plaintiff pauper status, the
Court “authorize[d] the commencement [and] prosecution . . . of
[this] suit . . . without prepayment of fees or security therefor
[by

Plaintiff],”

28

U.S.C.

§

1915(a)(1).

Moreover,

given

Plaintiff’s pauper status, “officers of the court shall issue and
serve all process,” 28 U.S.C. § 1915(d).
“Several courts of appeals have held that this language [in
Section 1915] does not permit a waiver of the witness fees to be
tendered with the subpoena.”

Tedder v. Odel, 890 F.2d 210, 211

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(9th Cir. 1989) (following decisions of the Third, Sixth, Seventh,
and Eighth Circuits in ruling that, “[a]lthough the plain language
of section 1915 provides for service of process for an indigent’s
witnesses, it does not waive payment of fees or expenses for those
witnesses”); accord Malik v. Lavalley, 994 F.2d 90, 90 (2d Cir.
1993) (“We agree with our sister circuits that no reading of 28
U.S.C. § 1915 supports the contention that Congress authorized the
federal courts to waive or pay for [an indigent litigant’s] witness
fees.”). The United States Court of Appeals for the Fourth Circuit
has endorsed that view in an unpublished opinion.

Douglas v.

McCarty, 87 Fed. Appx. 299, 302 (4th Cir. 2003) (“We agree with the
several circuits that have addressed the issue that federal courts
are not authorized to waive or pay witness fees on behalf of an in
forma pauperis civil litigant.”) (citing, inter alia, Malik and
Tedder).

In light of this authority, this Court (like others)

holds that, “[i]f Plaintiff seeks to have the subpoenas served by
the United States [Marshals Service], he must submit an appropriate
sum of money for [that agency] to tender to the witnesses with his
subpoenas,” Zaken v. Kelley, No. 8:07-CV-867-T-30EAJ, 2008 WL
5122201, at *1 (M.D. Fla. Dec. 5, 2008) (unpublished).
Moreover, although (unlike with witness fees) Plaintiff’s
pauper status and the terms of Section 1915(a) and (d) allow him to
avoid prepaying “[t]he costs of service of the subpoenas by the

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[United States Marshals Service]

. . ., Plaintiff is warned that

the costs of service are items of cost which may be taxed against
the losing party after trial.”

Id. at *1 n.1; accord Tessen v.

Lepak, No. 08CV556BBC, 2009 WL 564382, at *1 (W.D. Wis. Mar. 4,
2009) (unpublished); see also 28 U.S.C. § 1920 (stating that “judge
or clerk of any court of the United States may tax as costs . . .
[f]ees of the clerk and marshal”); 28 U.S.C. § 1921(a)(1) and (b)
(declaring that United States Marshals Service “shall routinely
collect, and a court may tax as costs, fees for . . . [s]erving a
subpoena or summons for a witness” and authorizing Attorney General
to

“prescribe

by

regulation

the

fees

to

be

[so]

taxed

and

collected”); 28 C.F.R. § 0.114(a) and (e) (setting fees “United
States

Marshals

“process”
Indeed,

and

the

in

Service
defining
forma

shall

routinely

“process”
pauperis

to

statute

collect”

include

for

serving

“subpoena[s]”).

expressly

states

that

“[j]udgment may be rendered for costs at the conclusion of the suit
or action as in other proceedings,” 28 U.S.C. § 1915(f)(1), and
that, “[i]f the judgment against a prisoner includes the payment of
costs . . ., the prisoner shall be required to pay the full amount
. . . in the same manner as is provided for filing fees under
[Section 1915(a)(2)],” 28 U.S.C. § 1915(f)(2).

In other words,

although “[Section] 1915 contemplates the postponement of [certain]
fees and costs for litigants who are granted in forma pauperis

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status[,] . . . a district court is empowered to award costs even
when it has previously granted a litigant the benefit of [Section]
1915(a).”

Flint v. Haynes, 651 F.2d 970, 972 & n.3 (4th Cir. 1981)

(affirming taxation of costs against indigent prisoner, including
“marshal’s service of process fees”).
CONCLUSION
Federal Rule of Civil Procedure 45(a)(3) generally requires
the issuance of a subpoena upon request.

Plaintiff, however, has

no right to use a subpoena to conduct discovery after the close of
the discovery period.

Further, the Court’s grant of pauper status

to Plaintiff in this case does not entitle Plaintiff to service of
subpoenas without pre-paying attendance fees and travel expenses.
IT IS THEREFORE ORDERED that Plaintiff’s filing entitled
“Subpoena in a Civil Case” requesting issuance of subpoenas for
service on Defendants (Docket Entry 27) is GRANTED IN PART AND
DENIED IN PART in that the Clerk’s Office shall send to Plaintiff
signed subpoenas requiring the presence of each Defendant at the
scheduled trial of this matter, along with an estimate of the daily
travel allowance for each Defendant under 28 U.S.C. § 1821(c)(2)
calculated based on travel between 324 W. Market St., Greensboro,
North Carolina, and 214 W. Jones St., Raleigh, North Carolina (for
Defendants

Lewis

and

Keller)

and

22385

McGirt’s

Bridge

Rd.,

Laurinburg, North Carolina (for Defendants Patterson, Martin,

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Harron, and Jones), but the Court will not order the United States
Marshals Service to serve any such subpoena(s) unless Plaintiff
returns them to the Clerk’s Office along with a payment covering
the

$40

expenses
subpoena.

single-day

attendance

estimated

by

the

fee

Clerk’s

and

the

Office

single-day
for

each

travel

returned

In the event Plaintiff returns a subpoena with the

appropriate payment to the Clerk’s Office, the Clerk’s Office shall
refer the matter to the assigned United States Magistrate Judge for
further action to attempt to minimize the accrual of service fees
of the United States Marshals Service that, although not due in
advance from Plaintiff, will become subject to taxation as costs.
This the 29th day of May, 2012.
/s/ L. Patrick Auld
L. Patrick Auld
United States Magistrate Judge

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