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Gomez v. Scribner

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


March 12, 2009

DAVID MAURICE GOMEZ, PLAINTIFF,
v.
A.K. SCRIBNER, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Dennis L. Beck United States Magistrate Judge

ORDER RE SUBMISSION OF MONEY

ORDERS

Plaintiff David Maurice Gomez ("plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. This action is proceeding on Plaintiff's amended complaint, filed October 21, 2003, against defendants Saddi, Bailey and German on Plaintiff's Eighth Amendment failure-to-protect claim. This matter is set for jury trial commencing May 5, 2009.

On October 29, 2008, the Court filed a Second Scheduling Order. (Doc. 158). The order provided in relevant part:

Procedures for Obtaining Attendance of Unincarcerated Witnesses Who Refuse to Testify Voluntarily - If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, the witness must be served with a subpoena. Fed. R. Civ. P. 45. In addition, the party seeking the witness's presence must tender an appropriate sum of money for the witness. Id. In the case of an unincarcerated witness, the appropriate sum of money is the daily witness fee of $40.00 plus the witness's travel expenses. 28 U.S.C. § 1821.

If plaintiff wishes to obtain the attendance of one or more unincarcerated witnesse ws ho refuse to testify voluntarily, plaintiff must first notify the court in writing of the names and location of each unincarcerated witness. The court will calculate the travel expense for each unincarcerated witness and notify plaintiff of the amount(s). Plaintiff must then, for each witness, submit a money order made payable to the witness for the full amount of the witness's travel expenses plus the daily witness fee of $40.00. The subpoena will not be served upon the unincarcerated witness by the United States Marshal unless the money order is tendered to the court. 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. (emphasis in original)

Plaintiff has submitted three money orders for $40.00, as well as money orders covering the travel expenses for witness Jane Kahn ($358.45), and witness Dr. Kim ($61.89). However, the three money orders for $40.00, which the Court assumes are to cover the witness fees for three of Plaintiff's witnesses, are made payable to the United States District Court and not to the witnesses as directed.

The Court will not order the subpoenas served upon Plaintiff's intended witnesses unless they are accompanied by money orders made payable to the witness, and for the appropriate sum of money (witness fee plus travel expense).

Accordingly, the Clerk of the Court is HEREBY DIRECTED to return to Plaintiff the five money orders submitted, bearing numbers: 08969354817 ($40.00), 08969354818 ($40.00), 08969354819 ($40.00), 08-969355025 ($358.45), and 08-969355024 ($61.89).

IT IS SO ORDERED.

20090312

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