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CANADY v. KREIDER

July 13, 1995

RICHARD R. CANADY, Plaintiff
v.
R.L. KREIDER, Defendant



The opinion of the court was delivered by: JAMES F. MCCLURE, JR.

 July 13, 1995

 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 unrelated action. He seeks damages and injunctive relief in the form of a transfer to the State Correctional Institution at Frackville, Pennsylvania. Plaintiff is proceeding pro se and in forma pauperis. Plaintiff's 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, plaintiff's 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 non-payment of the per diem and travel expenses is waived for persons proceeding in forma pauperis by another provision of law. See § 1821(a)(1) ...


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