Brown v. Warden Ross Correctional Institution, et al.

Filing 54

ORDER granting 42 & 51 Motions for USMS to serve Subpoenas. Signed by Magistrate Judge Elizabeth Preston Deavers on 4/18/2011. (kjm1)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION

YUSUF BROWN,
Plaintiff,
Civil Action 2:10-cv-822
Judge GREGORY L. FROST
Magistrate Judge E.A. Preston Deavers

v.

WARDEN ROSS CORRECTIONAL
INSTITUTION, et al.,
Defendants.

ORDER
Plaintiff asks the Court to order the United States Marshals Service to serve subpoenas on
Gary C. Mohr (ECF No. 42-1) and Charlie Heiss (ECF No. 51-1). For the reasons that follow,
the Court GRANTS Plaintiff’s unopposed Motions of Issuance of Subpoenas. (ECF Nos. 42
and 51.)
Plaintiff is proceeding in forma pauperis. Consequently, pursuant to 28 U.S.C. §1915(d),
“[t]he officers of the court shall issue and serve all process, and perform all duties in such cases.
Witnesses shall attend as in other cases, and the same remedies shall be available as are provided
for by law in other cases.” 28 U.S.C. §1915(d). This provision requires the Marshals Service to
serve an indigent party’s subpoena duces tecum. A court, however, may exercise its discretion
to screen such a subpoena request, relieving the Marshals Service of its duty when appropriate.
See 9A C. Wright & A. Miller, Federal Practice and Procedure § 2454, p. 244–46 n. 21 (3d ed.
2010) (citations omitted).
Here, upon review of Plaintiff’s unopposed Motions and the attached subpoenas, the

Court finds no circumstances warranting an exception to the Marshals Service’s statutory duty
under §1915(d). The Court therefore GRANTS Plaintiff’s Motions. (ECF Nos. 42 and 51.)
The Court DIRECTS the United States Marshal to serve ECF No. 42-1 on Gary C. Mohr and
ECF No. 51-1 on Charlie Heiss. Because the subpoenas do not require witness attendance,
Plaintiff is not required to tender fees and mileage for one day’s attendance. See Fed. R. Civ. P.
45(b)(1). The Court cautions Plaintiff, however, that his in forma pauperis status does not
exempt him from payment of such fees and mileage, where applicable. See Smith v. Yarrow, 78
F. App’x 529, 544 (6th Cir. 2003) (citation omitted) (“A prisoner plaintiff proceeding in forma
pauperis may seek a waiver of certain pretrial filing fees, but there is no constitutional or
statutory requirement that the government or [d]efendant pay for an indigent prisoner’s
discovery efforts.”).
IT IS SO ORDERED.

Date: April 18, 2011

/s/ Elizabeth A. Preston Deavers
Elizabeth A. Preston Deavers
United States Magistrate Judge

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