Opinion
CIVIL 1:19-cv-00260-MR
02-04-2022
S. SHANE SMITH, Plaintiff, v. JUSTIN LYTLE, Defendant.
ORDER
Martin Reidinger, Chief United States District Judge
THIS MATTER is before the Court on Plaintiff's letter requesting subpoena forms, which was docketed as a motion [Doc. 62], and Plaintiff's “Request for Subpoenas for Denies [sic] Bridges” [Doc. 65]. Plaintiff is proceeding in forma pauperis. [Docs. 2, 9].
The instant civil rights case is presently scheduled for a jury trial commencing on Tuesday, March 15, 2022 at 9:00 a.m. [See Doc. 67]. Plaintiff recently sent a letter to the Clerk of Court requesting two blank subpoena forms to subpoena witness to testify at trial. [Doc. 62]. Plaintiff is reminded, as provided in the Order of Instructions in this matter, that, “[l]etters sent to the Clerk of Court or Judge will not be answered.” [Doc. 5 at ¶ 5]. “Only Motions will be ruled on by the Court.” [Id.].
In any event, Plaintiff has since filed a request for the Court to issue a subpoena in this matter for the testimony and production of documents by Denise Bridges, identified as a Correctional Officer at Rutherford Correctional Center in Spindale, North Carolina, at the trial in this matter. [Doc. 65 at 1]. Officer Bridges was the officer who investigated the allegedly retaliatory disciplinary charge that was brought against Plaintiff after Plaintiff complained about Defendant Lytle's conduct. [See id. at 2]. Plaintiff, however, has failed to show that he can afford to pay the costs related to obtaining this witness at trial. See Fed.R.Civ.P. 45(b)(1) (“Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person's attendance, tendering the fees for 1 day's attendance and the mileage allowed by law.”).
“A district court generally has no duty to subpoena witnesses for an indigent litigation who cannot pay the witness fees in civil, non-habeas cases. Nance v. King, 888 F.2d 1386, at *1 (4th Cir. 1989) (table decision). See United States v. MacCollum, 426 U.S. 317, 321 (1976) (“expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress”); Pickens v. Lewis, 2017 WL 2198342, at *2 (W.D. N.C. May 18, 2017) (noting that 28 U.S.C.§ 1915 does not authorize the payment of litigation expenses and “[o]rdinarily, the plaintiff must bear the costs of his litigation … even in pro se cases”). To be sure, 28 U.S.C. § 1915(d) provides that, despite a plaintiffs forma pauperis status, “[witnesses shall attend as in other cases….”
The Court, therefore, will deny Plaintiffs request for the Court to issue a subpoena of Denise Bridges without prejudice. The Plaintiff may renew his request with a tender of the witness and mileage fees, if he so chooses.
At minimum, the witness attendance fee is $40.00, and mileage is paid at a rate of 58.5 cents per mile. 28 U.S.C. §§ 1821(b), (c)(1).
ORDER
IT IS, THEREFORE, ORDERED that Plaintiffs motion [Doc. 65] is DENIED without prejudice in accordance with the terms of this Order.
The Clerk is respectfully instructed to terminate Docket No. 62 as a motion and update the docket to reflect this filing as a Letter only.
IT IS SO ORDERED.