Opinion
1:19-cv-00001-DAD-SAB (PC)
09-28-2021
ANGEL RODRIGUEZ, Plaintiff, v. UNITED STATES OF AMERICA, Defendant.
ORDER REGARDING PLAINTIFF'S MOTION FOR UNINCARCERATED WITNESSES
(ECF No. 54)
Plaintiff Angel Rodriguez is appearing pro se and in forma pauperis in this civil rights action pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2674.
This matter is set for a telephonic trial confirmation hearing on February 7, 2022, at 1:30 p.m. before the assigned District Judge.
On March 26, 2021, the Court issued a Trial Scheduling Order setting forth, among other things, the procedures for obtaining the attendance of unincarcerated witnesses who refuse to voluntarily testify. (ECF No. 46.) By November 29, 2021, Plaintiff was required to notify the Court in writing of the name and location of each unincarcerated witnesses, and the Court would calculate the travel expense for each witness and notify Plaintiff of the amount. (Id. at 4.)
Currently before the Court is Plaintiff's timely written notice of the names and locations of the unincarcerated witnesses who refuse to voluntarily testify at trial. (ECF No. 54.) These witnesses are: (1) J. Ramos, Senior Officer Specialist at United States Penitentiary, Atwater; (2) M. Fontes, Senior Officer Specialist at United States Penitentiary, Atwater; (3) J. Zaragoza, Operations Lieutenant at United States Penitentiary, Atwater; and (4) G. Cobb, Special Investigation Services Lieutenant at United States Penitentiary, Atwater.
As pointed out in this Court's scheduling order, a party seeking to compel the attendance of a witness for trial must deposit fees for the witness in advance of the court subpoenaing them. (Doc. No. 46 at 3-4). That fee encompasses the $40.00 daily witness fee plus the costs of the witness's travel to and from the courthouse. 28 U.S.C. § 1821. The current mileage reimbursement rate is set at $0.56 per mile. The round-trip distance for witnesses J. Ramos, M. Fontes, J. Zaragoza, and G. Cobb to travel from the United States Penitentiary, Atwater to the Fresno federal courthouse is 66.8 miles. At the 56 cents per mile reimbursement rate, the cost to subpoena witnesses would be $37.41 plus the $40.00 daily witness fee for a total of $77.41.
https://www.gsa.gov/travel/plan-book/transportation-airfare-pov-etc/privately-owned-vehicle-pov-mileagereimbursement-rates
No statute authorizes the use of public funds to cover these payments and plaintiffs in forma pauperis status does not obviate his need to pay them. For each witness, plaintiff must submit a money order made payable to the witness for the amounts listed above. The subpoenas will not issue subpoenas absent payment in full.
Accordingly, it is HEREBY ORDERED that Plaintiffs motion to subpoena witnesses (ECF No. 54) is denied, without prejudice.
IT IS SO ORDERED.