United States District Court, D. Colorado
A. BRIMMER United States District Judge
matter is before the Court on plaintiff's Motion for
Reconsideration and Contemporaneous Objection to the
Court's Intentional Violation of his First and Fourteenth
Amendment Rights [Docket No. 899] and Motion and Affidavit
for Leave to Proceed Pursuant to 28 U.S.C. § 1915
[Docket No. 900]. Because plaintiff is proceeding pro
se, the Court construes his filings liberally. See
Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall
v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).
previously filed subpoenas with the Court and requested that
the Court direct the Clerk of Court to stamp the subpoenas
and order the U.S. Marshals Service to effectuate service.
Docket No. 869. The Court denied plaintiff's motion
without prejudice, pointing out that plaintiff has not been
granted leave to proceed in forma pauperis and that
the Court does not have the authority to waive payment of
witness fees and mileage. Docket No. 894. In response,
plaintiff filed the motions referred to above. Docket Nos.
motion for reconsideration, plaintiff argues that the Court
erred in finding that plaintiff has not been granted such
leave in this case. Docket No. 899 at 2. Plaintiff identifies
an order of the Tenth Circuit Court of Appeals granting him
in forma pauperis status. See Docket No.
569. That order deferred ruling on the substance of
plaintiff's request until a later time. Id. at
1. The Tenth Circuit later denied plaintiff's request to
proceed in forma pauperis when it considered the
substance of plaintiff's appeal. Docket No. 606 at 12.
Mr. Carbajal does not point to any other order in this case
granting him the ability to proceed in forma
also notes that he has been granted leave to proceed in
forma pauperis in a number of other cases. Docket No.
899 at 2. Plaintiff, however, cannot rely on his status from
other cases; he is required to request leave to proceed
in forma pauperis in this case. See 28
U.S.C. § 1915(a) (requiring an affidavit describing the
“nature of the action, defense or appeal” for
which a party requests leave to proceed in forma
fallback to his motion for reconsideration, plaintiff
requests leave to proceed in forma pauperis. Docket
No. 900. Under 28 U.S.C. § 1915, “any court of the
United States may authorize the  prosecution . . . of any
suit, action or proceeding . . . without prepayment of fees
or security therefor, ” if the requesting prisoner
submits an affidavit stating all of the prisoner's
assets, confirms his inability to pay court fees, and states
the nature of the action and the affiant's belief that he
is entitled to redress. 28 U.S.C. § 1915. In addition,
the prisoner must “submit a certified copy of the trust
fund account statement . . . for the prisoner for the 6-month
period immediately preceding the filing of the
complaint.” Id. The Court finds that
plaintiff's motion complies with all of the requirements
of 28 U.S.C. § 1915. Plaintiff will therefore be granted
leave to proceed in forma pauperis in this
plaintiff will be proceeding in forma pauperis, it
is proper for the U.S. Marshals to effectuate service on
behalf of plaintiff. See Fed. R. Civ. P. 4(c)(3)
(“At the plaintiff's request, the court may order
that service be made by a United States marshal or deputy
marshal or by a person specially appointed by the court. The
court must so order if the plaintiff is authorized to proceed
in forma pauperis under 28 U.S.C. §
1915”); 28 U.S.C. § 1915(a) (“The officers
of the court shall issue and serve all process, and perform
all duties in such cases.”). Thus, because plaintiff is
now proceeding in forma pauperis, the Court will
order the U.S. Marshals Service to effectuate service of the
subpoenas identified in this order on plaintiff's behalf.
as the Court noted in its prior order, plaintiff's in
forma pauperis status does not authorize the Court to
waive or order payment of witness fees and mileage. Docket
No. 894 at 2 (citing Hooper v. Tulsa Cty. Sheriff
Dep't, 1997 WL 295424 at *2 (10th Cir. Jun. 4, 1997)
(unpublished) (“Every circuit considering this issue
has held that § 1915(a)'s waiver of prepayment of
‘fees or costs' does not authorize the federal
courts to waive or order payment of witness fees for a civil
litigant proceeding in forma pauperis.”)
(citations omitted)). Plaintiff argues that 28 U.S.C.
§§ 1825(c) and 1920(3) allow the Court to compel
material witnesses to attend trial. Docket No. 899 at 4.
Section § 1825(c) authorizes service of subpoenas
without prepayment on behalf of an in forma pauperis
party in proceedings where “the United States or an
officer or agency of the United States is a party, ” in
28 U.S.C. § 2255 proceedings, or habeas corpus
proceedings. 28 U.S.C. § 1825(c). None of those
circumstances is present in this case. Section 1920(3)
addresses the taxation of costs and confers no authority on
the Court to waive plaintiff's witness fees and mileage.
As a result, plaintiff will need to tender witness fees and
mileage to his witnesses independently of the Marshals'
service of the subpoenas. See Wright & Miller,
Federal Practice and Procedure (Civil 2d) § 2454
(“Failure to tender the appropriate sums at
the time the subpoena is served invalidates the
subpoena.”). Plaintiff is obligated to ensure that each
subpoenaed witness receives the appropriate sum.
trial is set to commence on January 9, 2017. A criminal trial
set that date, however, has priority over this matter. As
such, this trial will be reset and plaintiff will have
additional time to serve his witnesses.
foregoing reasons, it is
that plaintiff's Motion for Reconsideration and
Contemporaneous Objection to the Court's Intentional
Violation of his First and Fourteenth Amendment Rights
[Docket No. 899] is granted. It is further
that plaintiff's Motion and Affidavit for Leave to
Proceed Pursuant to 28 U.S.C. § 1915 [Docket No. 900] is
granted. It is further
that the Clerk of the Court shall issue trial subpoenas for
the following ...