United States District Court, W.D. Kentucky
MEMORANDUM OPINION AND ORDER
B. Russell, Senior Judge United States District Court
matter comes before the Court upon Plaintiff's
“Motion for Subpoena Duces Tecum.” [DN 116.]
Plaintiff is seeking an Order directing the Clerk of Court to
issue writs of habeus corpus ad testificandum and/or subpoena
duces tecum to appear at trial and produce documents to: (1)
correctional officer John Boener, (2) correctional officer
Bruce Von Dwingelo, (3) Kentucky State Penitentiary
(“KSP”) Warden Randy White, (4) Prison Rape
Elimination Act (“PREA”) Investigator Seth
Mitchell, (5) PREA Investigator Robert Roberts, and (6)
Michael Cooper, a person currently incarcerated at KSP.
Rule of Civil Procedure 45(b)(1) provides in pertinent part
that “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.” Rule 45
requires the simultaneous tendering of the witness fee of
$40, per 28 U.S.C. § 1821(b), and the estimated mileage
expenses, with the service of a subpoena. CF& I Steel
Corp. v. Mitsui & Co., 713 F.2d 494 (9th Cir. 1983).
The failure of a party to tender the appropriate fees and
mileage will render that subpoena invalid, therefore freeing
the potential witness of any obligation to attend the
proceedings. See, e.g., Andreola v.
Wisconsin, Case No. 04-C-0282, 2006 WL 897787 (E.D. Wis.
Apr. 4, 2006) (citing Wright & Miller, Federal
Practice and Procedure: Civil 2d § 2454 at 25-26
spite of the fact that this Court has granted Plaintiff leave
to proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915, the Sixth Circuit has held that § 1915 does
not provide the necessary statutory authority for this Court
to waive witness fees:
Section 1915 is a statutory scheme by which courts may waive
certain court fees where a party is declared an indigent.
Section 1915(c) in particular allows the court to waive
certain preliminary court fees whenever a party is declared
indigent. It provides: ‘(c) The officers of the court
shall issue and serve all process, and perform all duties in
such cases. Witnesses shall attend as in other cases, and the
same remedies shall be available as are provided for by law
in other cases.' 28 U.S.C. § 1915(c). We do not
think the language of § 1915(c) can support such a
Section 1915(c) must be read in conjunction with its criminal
law counterpart, § 1825. Section 1825 was passed in 1965
in response to a judicial holding which had allowed for the
payment of witness fees in criminal cases where the defendant
was indigent. Estep v. United States, 251 F.2d 579,
582 (5th Cir. 1959)….At the same time, however,
Congress failed to change § 1915 to allow for payment of
such witness fees in civil cases. We feel this failure is
controlling in this case.
Johnson v. Hubbard, 698 F.2d 286, 289-90 (6th Cir.
1983), abrogated on other grounds by L & W Supply
Corp. v. Acquity, 475 F.3d 737 (6th Cir. 2007).
this, the Court lacks any authority to waive the witness fees
as it pertains to witnesses (1)-(5). Plaintiff failed to
tender to the Court the required fees with his Rule 45
subpoenas. This means that the tendered subpoenas are not in
proper form, and therefore, the Court cannot direct them to
be served. See Mitchell v. Voss, 863 F.2d 49 (6th
Cir. 1988). Should Plaintiff wish to have Boener, Von
Dwingelo, White, Mitchell, and/or Roberts present at trial,
he is required to tender the aforementioned fees to the Court
along with the subpoenas.
respect to the sixth witness Plaintiff seeks to have
subpoenaed to appear at trial, Michael Cooper, no witness or
mileage fees are necessary. As explained in 28 U.S.C.
1821(f), “[a]ny witness who is incarcerated at the time
that his or her testimony is given…may not receive
fees or allowances under this section, regardless of whether
such a witness is incarcerated at the time he or she makes a
claim for fees or allowances under this section.” The
policy behind this statute “is to avoid payment of
witness fees to those who, by virtue of their incarceration,
already have their expenses paid by the taxpayer.”
United States v. Raineri, 53 F.3d 327 (1st Cir.
1995) (citing H.R. Rep. No. 194, 102d Cong., 2d Sess. 2
(1991), reprinted in 1992 U.S.C.C.A.N. 1465, 1466).
The Court has already issued an order and writ of habeus
corpus ad testificandum as to Cooper. [DN 110.] As such,
Plaintiff's Motion has been rendered moot on this point.
there is the issue of Plaintiff's Motion for a subpoena
duces tecum. Specifically, Plaintiff wishes to have produced
two PREA documents he allegedly filed while incarcerated at
KSP: one against Defendant Delaney and one against Defendant
Simmons. [See 116 at 5.] He further asks the Court
to direct the production of any and all notes, memoranda,
reports and other documents related to these two filings.
[See id.] Plaintiff's request for these
documents to be subpoenaed was late, he failed to identify
the custodian or custodians of these documents, or who might
have control over them, and the trial in this matter is
slated to begin in less than one week. Due to this,
Plaintiff's motion will be denied on this count. However,
if these documents exist and are in either of the
Defendant's possession, custody, or control, Defendants
are hereby ordered to bring them to the trial on November 20,
reasons stated herein, IT IS HEREBY ORDERED
to Boener, Von Dwingelo, White, Mitchell, and Roberts,