Opinion
1:16-cv-01741 -JLT-HBK (PC)
10-24-2022
TONY ASBERRY, Plaintiff, v. C. RELEVANTE, et al., Defendants.
ORDER GRANTING PLAINTIFF'S CONSTRUED MOTION FOR AN EXTENSION TO PAY WITNESS FEES (DOC. NO. 253)
HELENA M. BARCH-KUCHTA UNITED STATES MAGISTRATE JUDGE.
Pending before the Court is Plaintiff's motion to obtain the attendance of two nonincarcerated witnesses who refuse to voluntarily testify filed on October 13, 2022. (Doc. No. 253). Plaintiff Tony Asberry, a current state prisoner, is proceeding pro se in this civil rights action which is scheduled for trial for April 3, 2023. (Doc. No. 264). In his motion, Plaintiff informs the Court that his daughter tried to pay the witness fees for two unincarcerated. (Doc. No. 253 at 2). Plaintiff reports that he “did not see a court ordered deadline to provide the court with the money orders for the obtainment of Plaintiff's” witnesses. (Id.). As a result, when Plaintiff's daughter went to the Robert E. Coyle United States Courthouse on two separate occasions in September 2022 to pay the witness fees the clerk's office refused to accept the money orders due to the fees being past the court-ordered deadline. (Id. at 2-4). Liberally construing Plaintiff's motion, Plaintiff is asking for an extension of time to pay his witness fees. Defendants did not file an opposition to the motion and the time to do so has expired. See docket; see also L.R. 233.
Despite Plaintiff's assertion that he was unaware of a court ordered deadline to pay witness fees, the Court previously extended the deadline by which he was required to make payment of the fees in its March 10, 2022 Order. (Doc. No. 239). Plaintiff did not pay the witness fees by the deadline; however, the trial in this instant action recently was continued to April 3, 2023. Finding no objection by Defendants and no prejudice to grant a further extension of time to pay the fees, the Court will extend the time period to pay the witness fees one last time. However, Plaintiff is advised that the witness fees for Plaintiff's two unincarcerated witnesses has changed since this court's March 10, 2022 Order. After Plaintiff pays the witness fees the Court will issue a subpoena for the attendance at trial of Plaintiff's two unincarcerated witnesses.
Plaintiff requests to subpoena Steve Fama of the Prison Law Office. As ascertained by the court, the Prison Law Office is located at 1917 5th Street Berkeley, CA 94710. The roundtrip distance for Mr. Fama to travel from this address to the Fresno federal courthouse is 362 miles. The current mileage reimbursement rate is set at 62.5 cents per mile. Thus, the cost to subpoena Mr. Steve Fama would be $226.25 for travel plus the $40.00 daily witness fee for a total of $266.25. Due to the increase in the mileage rate, the total reimbursement cost to subpoena Dr. Lopez to travel from Kern Valley State Prison to the Fresno federal courthouse would be $141.25 (162 miles at 62.5 cents per mile which totals $101.25 plus the $40.00 daily witness fee). Because no statute authorizes the use of public funds to cover these payments and Plaintiff's in forma pauperis status does not obviate his need to pay them, Plaintiff must submit money orders made payable to each witness for the amounts listed above. The Court will afford Plaintiff an extension of time until November 30, 2022 to submit the money orders to the Clerk of Court at the Robert E. Coyle Courthouse in Fresno.
The previous rate of 58.5 cents was increased to 62.5 cents effective 7/1/2022. https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-pov-mileage-reimbursement-rates.
Accordingly, it is ORDERED:
Plaintiff's construed motion for an extension of time to pay witness fees (Doc. No. 253) is GRANTED to the extent that Plaintiff shall deliver money orders for the amounts set forth in this Order to the Clerk's Office no later than November 30, 2022.