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Bryant v. Sacramento County Jail

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


January 25, 2010

DARRYL KEITH BRYANT, PLAINTIFF,
v.
SACRAMENTO COUNTY JAIL, ET AL., DEFENDANTS.

ORDER

Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 U.S.C. § 1983. Plaintiff requests five blank subpoena forms for his unincarcerated witnesses who refuse to testify voluntarily. Dckt. No. 54 (requesting five forms), 57 (requesting three forms). Since only two unincarcerated witnesses are identified in the court's pretrial order, the court will direct the Clerk to mail to plaintiff only two blank subpoena forms. See Dckt. No. 51 at 5. Notwithstanding the court's multiple warnings, plaintiff appears to be under the impression that any witness fees will be waived due to his in forma pauperis status. See Dckt. No. 57. Plaintiff is reminded that:

If a prospective witness is not incarcerated, and he or she refuses to testify voluntarily, not earlier than four weeks and not later than two weeks before trial, the party must prepare and submit to the United States Marshal a subpoena for service by the Marshal upon the witness. (Blank subpoena forms may be obtained from the Clerk of the Court.) Also, the party seeking the witness's presence 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's 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's 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.

Dckt. No. 44 at 4-5; Dckt. No. 51 at 5, n.2. Thus, a subpoena will not be served upon an unincarcerated witness by the United States Marshal unless a money order is tendered to the court. If plaintiff wishes to have the Marshal serve any unincarcerated witnesses who refuse to testify voluntarily, plaintiff must promptly submit the money orders with the completed subpoena forms to the court.

Accordingly, IT IS HEREBY ORDERED that the Clerk shall forward to plaintiff two blank subpoena forms.

20100125

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