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Larry D. Thomas, Case v. Hector Robles

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


November 14, 2011

LARRY D. THOMAS, CASE
PLAINTIFF,
v.
HECTOR ROBLES, ET AL.,
DEFENDANTS.

The opinion of the court was delivered by: Barbara A. McAuliffe United States Magistrate Judge

ORDER ADDRESSING PLAINTIFF'S RESPONSE TO COURT'S ORDER NOTIFYING PLAINTIFF OF WITNESS FEES AND COSTS DUE TO SUBPOENA OF UNINCARCERATED WITNESSES WHO REFUSE TO TESTIFY VOLUNTARILY (ECF No. 84)

Plaintiff Larry D. Thomas ("Plaintiff") is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. This action is confirmed for trial on December 13, 2011, at 8:30 a.m. before the Honorable Lawrence J. O'Neill. On November 3, 2011, an order issued notifying Plaintiff of the witness fees and costs due to subpoena unincarcerated witnesses who refuse to testify voluntarily. (ECF No. 78.) On November 10, 2011, Plaintiff filed a response stating that he was unaware that fees and costs were not covered because he was proceeding informa pauperis. (ECF No. 84.)

Plaintiff is referred to the second scheduling order issued January 11, 2011, in which he was informed that to obtain the attendance of unincarcerated witnesses who refused to testify voluntarily he would be required to pay witness fees and expenses. (Second Scheduling Order 4:1-20, ECF No. 45.) In the order, Plaintiff was also informed that witness fees and expenses were required even if the party is granted leave to proceed in forma pauperis.

To the extent that Plaintiff's response is requesting a waiver of witness fees and expenses, the expenditure of public funds on behalf of an indigent litigant is proper only when authorized by Congress. Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (citations omitted). The in forma pauperis statute does not authorize the Court to waive witness fees or expenses paid to those witnesses. Tedder v. Odel, 890 F.2d at 211; Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir. 1993); Bussiere v. Cano, 2010 WL 5507047, 1:10-cv-00945-GBC PC, *1 (E.D. Cal. Dec. 28, 2010); see 28 U.S.C. § 1915.

Accordingly, to the extent that Plaintiff is requesting a waiver of witness fees and expenses his request is DENIED.

IT IS SO ORDERED.

10c20k

20111114

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