Opinion
No. CIV S-00-0302 JKS JFM P.
August 23, 2007
ORDER
Plaintiff is a state prisoner proceeding in propria persona and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. Jury trial is presently set for September 24, 2007. In the final pretrial order, plaintiff was granted leave to call two unincarcerated witnesses, Correctional Officer Sgt. Rubio and Dr. McRae. Dr. McRae's address for service has been provided in camera for the court's use. (Docket No. 259.) Officer Rubio's address for service was provided to plaintiff on February 20, 2007. (Docket No. 253.)
On May 27, 2003, plaintiff was advised of the requirements for calling witnesses to testify at trial. Unless these witnesses have agreed to testify voluntarily, plaintiff was advised that he
must tender an appropriate sum of money to the witness through the United States Marshal. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 plus the witness' travel expenses.
A subpoena will not be served by the United States Marshal upon an unincarcerated witness unless the subpoena is accompanied by a money order made payable to the witness for the full amount of the witness' travel expenses plus the daily witness fee of $40.00, and a copy of the court's order granting plaintiff in forma pauperis status. Because no statute authorizes the use of public funds for these expenses in civil cases, the tendering of witness fees and travel expenses is required even if the party was granted leave to proceed in forma pauperis.
(May 27, 2003 Revised Scheduling Order at 4.) In order to obtain unincarcerated witnesses' testimony, plaintiff must submit a subpoena and the daily witness fee of $40.00 plus the witness' travel expenses for each unincarcerated witness, along with a copy of the court's order granting plaintiff in forma pauperis status. Usually these are forwarded directly to the U.S. Marshal; however, since one of the witnesses' address is confidential, plaintiff may forward these documents to the court. The court will insert the address for Dr. McRae and then forward the documents to the U.S. Marshal. Plaintiff is cautioned that failure to timely submit these documents will result in the witnesses not appearing at trial.
Accordingly, IT IS HEREBY ORDERED that:
1. The Clerk of the Court shall forward to plaintiff two subpoena forms; and
2. Within ten days, plaintiff shall complete the subpoena forms for Dr. McRae and Officer Rubio and return the forms, the witness fees and travel expenses (by money order payable to each witness), and a copy of the order granting plaintiff in forma pauperis status within ten days.