Lydia v. Cherokee County Detention Center et al

Filing 76

ORDER denying 61 Motion for Subpoenas. Signed by Magistrate Judge Shiva V Hodges on 10/24/2011.(mcot, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
Claude E. Lydia,
Plaintiff,
vs.
Ms. Henderson, Officer; Ms. Luna,
Officer; Ms. Blackwell, Officer; Mr.
Lemmons, Officer,
Defendants.

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C/A No.: 1:11-23-MBS-SVH

ORDER

Plaintiff, proceeding pro se and in forma pauperis, brought this action pursuant to 42
U.S.C. § 1983, alleging violations of his constitutional rights while he was a pretrial detainee
incarcerated at Cherokee County Detention Center (“CCDC”). This matter is before the
court on Plaintiff’s Motion for Subpoenas [Entry #61]. All pretrial proceedings in this case
were referred to the undersigned pursuant to the provisions of 28 U.S.C. § 636(b) and Local
Civil Rule 73.02(B)(2)(d) (D.S.C.).
Plaintiff’s motion for subpoenas requests twelve subpoenas in order to secure the
presence of witnesses for Plaintiff. Although a subpoena is the proper method for
compelling attendance of a witness at trial, Plaintiff has failed to provide the proper form or
the necessary witness fees. There is no requirement under 28 U.S.C. § 1915 that the court
pay costs incurred with regard to a subpoena such as witness fees. See Badman v. Stark, 139
F.R.D. 601, 604 (M.D.Pa. 1991) (inmates proceeding under 28 U.S.C. § 1915 are not
entitled to have their discovery costs underwritten or waived); Johnson v. Hubbard, 698
F.2d 286, 288–291 & nn. 2–5 (6th Cir.) (lower courts have no duty to pay fees to secure

depositions in civil, non-habeas corpus cases), cert. denied, 464 U.S. 917 (1983); United
States Marshals Serv. v. Means, 741 F.2d 1053, 1057 (8th Cir.1984) (holding that 28 U.S.C.
§ 1915(c) does not require government payment of witness fees and costs for indigent
plaintiffs in § 1983 suits). If Plaintiff wishes to obtain subpoenas, he may do so by
contacting the Clerk of Court and providing the Clerk’s office with a completed Form AO
88 (Subpoena in a Civil Case), together with the necessary witness fees. Plaintiff will have
ample time to submit the same after a trial date is set. Therefore, Plaintiff’s motion for
subpoenas [Entry #61] is denied at this time with leave to re-file after he has tendered a
properly completed AO 88 form and the necessary witness fees.
IT IS SO ORDERED.

October 24, 2011
Florence, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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