United States District Court, D. Colorado
ORDER
Scott
T. Varholak Magistrate Judge
This
matter comes before the Court on six Motions filed by
Plaintiff [##197-202]: (1) four Motions for Writ of Habeas
Corpus Ad Testificandum, which seek to bring Plaintiff and
three inmate witnesses before this Court for trial
[##197-200]; (2) Plaintiff’s “Motion for
Appointment of Advisory Counsel” [#201]; and (3)
Plaintiff’s “Motion for the U.S. Marshals to
Serve Correctional Officers in the Facility”
(“Motion for Subpoenas”) [#202] (collectively the
“Motions”).[1] The Motions have been referred to this
Court. [#203] For the following reasons, the Motions are
DENIED.
I.
MOTIONS FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM
In
Plaintiff’s four Motions for Writ of Habeas Corpus Ad
Testificandum, Plaintiff requests that Warden Scott
Dauffenbach be ordered to bring Plaintiff and three other
inmate witnesses to testify on Plaintiff’s behalf at
trial. [##197-200] Plaintiff argues that his case
“depends in large part on the testimony” of these
witnesses, and that the “jury should be allowed to
hear” the witnesses “testify personally”
and “observe [their] demeanor.” [Id.]
"The
authority to issue writs of habeas corpus ad testificandum is
expressly conferred by 28 U.S.C. 2241(c)(5)," and allows
a federal court in its discretion "to secure the
appearance of a state or federal prisoner as a witness in
federal court." Mitchell v. Howard, No.
14-CV-1068-WYD-NYW, 2015 WL 5728765, at *2 (D. Colo. Sept.
30, 2015). “A prisoner does not have an absolute right
to be present at his civil trial or pretrial
proceedings,” and "[i]n determining whether to
grant the writ, the court must weigh the prisoner's need
to be present against concerns of expense, security,
logistics and docket control." Id. (quoting
Hawkins v. Maynard, 89 F.3d 850, 1996 WL 335234, at
*1 (10th Cir. June 18, 1996)). The United States Supreme
Court has held that the statute does not authorize a federal
court to direct a writ of habeas corpus ad testificandum to
parties who do not have custody of the person incarcerated.
Penn. Bureau of Corr. v. U.S. Marshals Service, 474
U.S. 34, 38 (1985).
Here,
Plaintiff seeks to direct the writs to Warden Dauffenbach,
who appears to be the warden of Arrowhead Correctional
Center. See Public Prisons, Address and Phone Number
Information, Colorado.gov,
https://www.colorado.gov/pacific/cdoc/address-and-phone-number-information
(last visited Jan. 29, 2019); see also Fortner v. Cty. of
El Paso, No. 15-cv-00644-WJM-NYW, 2015 WL 10384289, at
*6 n.8 (D. Colo. Dec. 9, 2015) (noting court may take
judicial notice of the contents of a government website),
recommendation adopted, 2016 WL 806751 (D. Colo.
Mar. 2, 2016). Plaintiff is in custody at Fremont
Correctional Facility, and according to the Motions for Writ
of Habeas Corpus Ad Testificandum, the other witnesses that
Plaintiff seeks to bring to his trial are incarcerated at
Fremont Correctional Facility [#198], Colorado Territorial
Correctional Facility or Buena Vista Correctional Complex
[#199], and Sterling Correctional Facility [#200]. Therefore,
none of the witnesses are housed in Arrowhead Correctional
Center and are not under the requisite custody of Warden
Dauffenbach. Accordingly, the Motions for Writ of Habeas
Corpus Ad Testificandum [##197-200] are DENIED
WITHOUT PREJUDICE. In so holding, the Court makes no
decision with respect to whether the need for Plaintiff and
his witnesses to be present at trial outweighs concerns of
expense, security, logistics, and docket control, even if the
writs were directed to the proper party.
II.
MOTION FOR APPOINTMENT OF ADVISORY COUNSEL
In
Plaintiff’s Motion for Appointment of Advisory Counsel,
Plaintiff seeks appointment of counsel for assistance in the
pretrial conference and trial. [#201] Plaintiff further
requests that the Court postpone the pretrial conference and
trial until advisory counsel can be appointed. [Id.]
This
Court previously granted Plaintiff's Motion for
Appointment of Counsel in November 2018. [#50] But, despite
that Order, there is no guarantee that counsel will be
appointed in this case, as the Court has informed Plaintiff.
[##50, 81] Plaintiff remains responsible for complying with
all deadlines and procedures until counsel is appointed. The
Court also notes that no final pretrial conference is
currently scheduled, and no trial dates have yet been set in
this matter. [See #195] Because the Court has
already granted a prior motion for appointment of counsel by
Plaintiff, the instant Motion for Appointment of Advisory
Counsel [#201] is DENIED as moot.
III.
MOTION FOR SUBPOENAS
Finally,
Plaintiff has filed a Motion for Subpoenas, requesting that
the Court subpoena Plaintiff’s “correctional
officer witnesses at the Court’s or the
Defendants[’] expense.” [#202 at 1] In support of
that Motion, Plaintiff states that he “has nearly
exhausted his funds.” [Id.]
Federal
Rule of Civil Procedure 45(b)(1) states that a subpoena may
be served by any person not a party to the case, and that
such service is effectuated by tendering the subpoena, along
with “fees for 1 day’s attendance and the mileage
allowed by law” to the witness.[2] The “authorization to
proceed in forma pauperis
[(“IFP”)],” under 28 U.S.C. § 1915
“does not excuse a litigant from paying the required
witness fees and mileage.” Davis v. Andujar,
No. 08-cv-00245-MSK-KMT, 2009 WL 4908180, at *2 (D. Colo.
Dec. 17, 2009). “The expenditure of public funds on
behalf of an indigent litigant is only proper when authorized
by Congress,” and because “neither section 1915
nor any other statute provides such authorization, federal
courts lack the authority to waive witness [fees] or order
payment of witness fees on behalf of an [IFP] civil
litigant." Id. (collecting cases); see also
Hooper v. Tulsa Cty. Sheriff Dep’t, 113 F.3d 1246,
1997 WL 295424, at *2 (10th Cir. June 4, 1997) (“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.”).
Here,
Plaintiff has paid the filing fee and is not proceeding IFP.
[See ##5, 12] But, even if he was, Plaintiff has not
tendered the requisite witness fees and mileages for the
individuals to be subpoenaed. Moreover, Plaintiff has not
offered any description of the witnesses’ anticipated
testimony, how that testimony would be relevant to his
claims, or how the testimony from each of the witnesses would
not be redundant or cumulative. See Fed. R. Evid.
403 (“The court may exclude relevant evidence if its
probative value is substantially outweighed by a danger of .
. . needlessly presenting cumulative evidence.”);
Garner v. United States, 45 F. App’x 326, 2002
WL 1899597, at *6 (5th Cir. July 11, 2002) (finding no abuse
of discretion in court’s refusal to issue a subpoena
“where a prisoner litigant did not state why he needed
a witness’s testimony and where the prisoner did not in
fact need the testimony to prove his claim at trial”
(citing cases)). Cf. Davis, 2009 WL 4908180, at *2
n.2 (noting that pursuant to plaintiff’s proffer of the
witnesses’ anticipated testimony, each witness appeared
to have information relevant to plaintiff’s claims, and
the testimony of each witness did not appear to be redundant
or cumulative). For these reasons, Plaintiff’s Motion
for Subpoenas [#202] is DENIED WITHOUT
PREJUDICE.
IV.
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