Dixon v. Wilks et al

Filing 39

ORDER denying 37 Motion for Subpoenas. Signed by Magistrate Judge Shiva V Hodges on 3/14/2012.(abuc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION
Robert James Dixon,
Plaintiff,
vs.
Diane Wilks,
Defendant.

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C/A No.: 1:11-2378-CMC-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 incarcerated at
Darlington County Detention Center.

This matter is before the court on Plaintiff’s

Motion for Subpoenas [Entry #37] filed on March 13, 2012. Defendant filed a response
on March 14, 2012. [Entry #38]. 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 seven 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); see also 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); Johnson v. Hubbard, 698 F.2d 286, 288–91 & nn. 2–5
(6th Cir. 1983) (lower courts have no duty to pay fees to secure depositions in civil, nonhabeas corpus cases), cert. denied, 464 U.S. 917 (1983). 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 #37] 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.

March 14, 2012
Columbia, South Carolina

Shiva V. Hodges
United States Magistrate Judge

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