The opinion of the court was delivered by: Joy Flowers Conti United States District Judge
On November 17, 2008, the Clerk of Court for the Western District of Pennsylvania received a motion for in forma pauperis status filed by plaintiff Pierre Richard Augustin ("plaintiff" or "Augustin") to waive the costs associated with issuing subpoenas and to have the United States Marshals Service serve the subpoenas. As required when considering any pleadings filed by a pro selitigant, the court shall liberally construe plaintiff's motion. Erickson v. Pardus,127 S.Ct. 2197, 2200 (2007). The court will grant plaintiff's motion to proceed in forma pauperis for the sole purpose of considering his request to waive the costs, but will deny the relief plaintiff seeks.
I. Motion to Proceed In Forma Pauperis
Augustin requests this court grant him in forma pauperis status and order the United States Marshal to serve a subpoena duces tecum free-of-charge to him. He argues that the cost of issuing the subpoena would be an undue burden on him.
A party is entitled to proceed in forma pauperis if the party in good faith files an affidavit stating, inter alia, that he is unable to pay the costs of the lawsuit. Neitzke v. Williams, 490 U.S. 319, 324-25 (1989); 28 U.S.C. § 1915(a). In Lockhart v. D'Urco, 408 F.2d 354 (3d Cir. 1969), the Court of Appeals for the Third Circuit stated:
[W]e think that, particularly in pro se cases, the right to proceed in forma pauperis should generally be granted where the required affidavit of poverty is filed. This approach minimizes, to some extent, disparity in treatment based on economic circumstances. An attack on the truth of such affidavit or the sufficiency of the complaint should be left for appropriate disposition after service has been made on the defendants.
Id. at 355. An affidavit is defined as a "voluntary declaration of facts written down and sworn to by the declarant before an officer authorized to administer oaths, such as a notary public." BLACK'S LAW DICTIONARY 62 (8th ed. 2004). Although Augustin submitted a notarized affidavit stating that "I have read the foregoing Motion filed herein and knowing the contents thereof are true of my own personal knowledge except as to those allegations based on information and belief which I believe to be true," he has not submitted an affidavit explicitly stating his assets or stating that he is unable to pay the costs of the lawsuit. It is unclear whether the affidavit or any other one of the papers Augustin submitted to the court should be technically deemed an affidavit of poverty. The court notes, however, that Augustin is proceeding pro se, and submitted financial information that he moves the court to file under seal. The court grants his motion to seal these papers. Based upon his financial information and other submissions, the court will grant Augustin's motion to proceed in forma pauperis, for the purpose of resolving this motion.
II. Costs of Serving Subpoenas Duces Tecum
The Supreme Court has asserted that "expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress." United States v. McCollom, 436 U.S. 317, 321 (1976). The requested financial relief Augustin seeks, therefore, must only be granted if it is authorized by federal law.
28 U.S.C. § 1915 provides that a federal court may authorize the commencement and prosecution of a civil lawsuit "without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor." 28 U.S.C. § 1915(a)(1). The statute does not define what constitutes "fees" within the meaning of its provisions.
In Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), the plaintiff argued on appeal to the Court of Appeals for the Third Circuit that in light of his in forma pauperis status, the district court erred in denying his motion to obtain free copies of transcripts of depositions. The Court of Appeals for the Third Circuit disagreed, stating that "[t]here is no provision in [28 U.S.C. § 1915] for the payment by the government of the costs of deposition transcripts, or any other litigation expenses, and no other statute authorizes courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant." Id. at 159.
In McAleese v. Owens, No. 88-1669, 1991 WL 329930 (W.D. Pa. Dec. 5, 1991), the plaintiff, who was proceeding in forma pauperis, filed with the Clerk of Court for the Western District of Pennsylvania a subpoena form bearing the seal and signature of the United States District Court for the Eastern District of Pennsylvania. The plaintiff also filed a Process Receipt and Return form used by the United States Marshals Service. The plaintiff submitted the forms with the intent that the Marshal would serve a witness with a subpoena duces tecum. The plaintiff was silent, however, with respect to how he proposed to pay for the discovery.
The court in McAleese analyzed the language of 28 U.S.C. § 1915(c) requiring that officers of the court "issue and serve all process, and perform all duties in such cases," and determined that language did not mean that an in forma pauperis plaintiff's discovery costs are to be underwritten or waived. The court noted that Rule 17(b) of the Federal Rules of Criminal Procedure specifically provided for the service of subpoenas without cost to indigent criminal defendants, but that there is no parallel provision for indigent parties in civil actions. The court held that without authorization in section 1915 or another statute, it would not direct the United States Marshal to serve the witness and advance the plaintiff's fees and costs. The court noted:
Even if Plaintiff only seeks to have the witness turn over the requested [documents], and does not command his appearance at a formal deposition, the question of fees and costs remains. The Federal Rules of Civil Procedure were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in order to comply with a subpoena duces tecum. That the court may order a discovering party to pay the ...