Canady v. Kreider

892 F. Supp. 668, 1995 U.S. Dist. LEXIS 10162, 1995 WL 429072
CourtDistrict Court, M.D. Pennsylvania
DecidedJuly 13, 1995
DocketNo. 4:CV-94-0195
StatusPublished
Cited by8 cases

This text of 892 F. Supp. 668 (Canady v. Kreider) is published on Counsel Stack Legal Research, covering District Court, M.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Canady v. Kreider, 892 F. Supp. 668, 1995 U.S. Dist. LEXIS 10162, 1995 WL 429072 (M.D. Pa. 1995).

Opinion

ORDER

McCLURE, District Judge.

BACKGROUND:

On February 11, 1994, plaintiff Richard R. Canady, an inmate at the State Correctional Institution at Huntingdon, Pennsylvania, initiated this action with the filing of a complaint pursuant to 42 U.S.C. § 1983. Plaintiff alleges that he is the subject of harassment and abuse as a result of testifying before the United States District Court for the Eastern District of Pennsylvania in an [669]*669unrelated action. He seeks damages and injunctive relief in the form of a transfer to the State Correctional Institution at Frack-ville, Pennsylvania. Plaintiff is proceeding pro se and in forma pauperis. Plaintiffs claims against defendant Love have been dismissed by the court.

On Monday, July 10, 1995, the court conducted a final pre-trial conference with plaintiff and counsel for defendant. At that time, plaintiffs requests for writs of habeas corpus ad testificandum and subpoenas were discussed. Specifically, defense counsel raised the issue of plaintiff tendering witness fees and travel expenses to any witness for whom plaintiff shall serve a subpoena, pursuant to 28 U.S.C. § 1821(a)(1). Also, plaintiff represented to the court that he understood that service of the subpoenas would be effected by the United States Marshals Service. Plaintiff has requested subpoenas for a large number of witnesses, and the court has dealt ■with the request by separate order.

DISCUSSION:

The relevant statutory provision reads:
Except as otherwise provided by law, a witness in attendance at any court of the United States, or before a United States Magistrate, or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances provided by this section.

28 U.S.C. § 1821(a)(1). The section then provides for the payment of a per diem of $40.00, § 1821(b), travel expenses, § 1821(c), and a subsistence allowance for witnesses requiring overnight stays, § 1821(d). The only exceptions to this requirement set forth in the section are aliens subject to deportation and incarcerated witnesses. Sec. 1821(e), (f).

Consistent with § 1821 is Federal Rule of Civil Procedure 45, which provides that:

... Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law....

Fed.R. 45(b)(1).

The question, then, is whether the nonpayment of the per diem and travel expenses is waived for persons proceeding in forma pauperis by another provision of law. See § 1821(a)(1) (“Except as otherwise provided by law, ...”).

The statutory provision governing in for-ma pauperis status reads in part:

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).

Those courts of appeals which have addressed the issue are unanimous in holding that § 1915(c) does not provide a waiver of the witness fee requirement of § 1821. See Malik v. Lavalley, 994 F.2d 90 (2d Cir.1993); Tedder v. Odel, 890 F.2d 210 (9th Cir.1989) (per curiam); McNeil v. Lowney, 831 F.2d 1368 (7th Cir.1987), cert. denied, 485 U.S. 965, 108 S.Ct. 1236, 99 L.Ed.2d 435 (1988); Cookish v. Cunningham, 787 F.2d 1 (1st Cir.1986) (per curiam); United States Marshals Service v. Means, 741 F.2d 1053 (8th Cir.1984), cert. denied sub nom. Means v. United States, 492 U.S. 910, 109 S.Ct. 3227, 106 L.Ed.2d 575 (1989); and Johnson v. Hubbard, 698 F.2d 286 (6th Cir.), cert. denied, 464 U.S. 917, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983). See also Dixon v. Ylst, 990 F.2d 478, 480 (9th Cir.1993) (reaffirming Tedder); Fernandez v. Kash N’ Karry Food Stores, Inc., 136 F.R.D. 495 (M.D.Fla.1991), aff'd, 966 F.2d 1461 (11th Cir.1992) (table). But see Coleman v. St. Vincent De Paul Society, 144 F.R.D. 92 (E.D.Wis.1992) (§ 1915(c) does not provide waiver of fees, but fees should be paid at government expense as part of operational expenses of the courts; relying upon Hubbard, 698 F.2d at 291-294 (Swygert, J., dissenting)).

Although it has not addressed this specific issue, the Court of Appeals for the Third Circuit has held that § 1915 does not authorize district courts to provide expert witness [670]*670fees for indigent claimants in civil suits. Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir.1987), cert. denied, 485 U.S. 991, 108 S.Ct. 1298, 99 L.Ed.2d 508 (1988). See also Tabron v. Grace, 6 F.3d 147, 158-159 (3d Cir.1993) (§ 1915 does not authorize district court to commit federal monies for payment of necessary expenses of civil suit brought by indigent litigant), cert. denied, — U.S.-, 114 S.Ct. 1306, 127 L.Ed.2d 657 (1994); Badman v. Stark, 139 F.R.D. 601 (M.D.Pa.1991) (discovery-related subpoenas).

In contrast to § 1915(c), 28 U.S.C. § 1825 specifically provides that the required fee is paid by the United States Marshal when the United States or its agency is a party, § 1825(a), when the witness is a defense witness in a criminal case, § 1825(a)(1), (2), and in habeas corpus proceedings or proceedings under 28 U.S.C. § 2255 in which the petitioner has been granted in forma ‘pau-peris status, § 1825(b). Witness fees need not be tendered at the time of service of a subpoena in these instances. Sec.

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Bluebook (online)
892 F. Supp. 668, 1995 U.S. Dist. LEXIS 10162, 1995 WL 429072, Counsel Stack Legal Research, https://law.counselstack.com/opinion/canady-v-kreider-pamd-1995.