Opinion
Case No. 1:11-cv-00809-AWI-SKO (PC)
08-21-2015
ANTHONY NGUYEN, Plaintiff, v. M. D. BITER, Defendant.
ORDER DENYING MOTION FOR ENTRY OF DEFAULT AND FOR ISSUANCE OF SUBPOENAS AD TESTIFICANDUM (Doc. 145)
Plaintiff Anthony Nguyen ("Plaintiff"), a state prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983 on May 18, 2011. This action is proceeding against Defendant M. D. Biter ("Defendant") for violation of the Eighth Amendment of the United States Constitution, a claim which arises from Plaintiff's allegations that he was exposed to arsenic-contaminated water while at Kern Valley State Prison in Delano, California.
Plaintiff is presently incarcerated at California State Prison-Centinela in Imperial.
On July 23, 2015, Plaintiff filed a motion seeking entry of default against Defendant for failing to file his opposition and cross-motion for summary judgment on July 20, 2015. Fed. R. Civ. P. 55(a). Plaintiff also seeks the issuance of ten trial subpoenas. Fed. R. Civ. P. 45. Defendant filed an opposition on August 17, 2015. Given that Plaintiff did not meet his burden as the party moving for relief, a reply brief would be futile and the Court elects to address the motion. Local Rule 230(l).
Defendant timely filed his opposition and cross-motion for summary judgment on July 20, 2015; and Plaintiff's motion for entry of default is patently frivolous given that it was prepared by Plaintiff at 5:45 p.m. on the filing deadline, without awaiting receipt of the motion through the mail. Fed. R. Civ. P. 5(b)((2)(C), (d)(3). Plaintiff's motion for entry of default is denied.
Plaintiff's request for subpoenas ad testificandum is denied as premature. Fed. R. Civ. P. 45. This case is not yet scheduled for trial, and it will not be scheduled for trial until and unless the parties' pending cross-motions for summary judgment are resolved and that resolution results in a determination that there are triable issues of fact. Moreover, if this case is set for trial, Plaintiff will be entitled to the issuance of subpoenas only if he is able to pay the $40.00 daily witness fee and travel expenses. 28 U.S.C. § 1821. Plaintiff's in forma pauperis status entitles him to service of subpoenas ad testificandum by the United States Marshal, 28 U.S.C. § 1915(d), but not to the payment of witness fees and travel expenses from public funds, Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993) (citing Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989)).
If this case is scheduled for trial, witness procedures will be set forth in the Second Scheduling Order.
Accordingly, Plaintiff's motion for entry of default and for the issuance of subpoenas ad testificandum is HEREBY DENIED. IT IS SO ORDERED.
Dated: August 21 , 2015
/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE