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No Witnesses for IFP Litigant
Apro se civil litigant was prosecuting a § 1983 civil rights complaint in forma pauperis . The plaintiff was a prisoner and suit was filed against two guards for use of excessive force. After a bench trial, the U.S. district court entered a judgment against the prisoner. He appealed to the U.S. court of appeals for the second circuit.
On appeal the prisoner's principal argument was that the lower court judge should have secured the attendance at trial of two witnesses because he was unable to do so himself. The court refused to pay the necessary witness fees, even though the prisoner was proceeding in forma pauperis .
The court of appeals affirmed the judgment of the district court and held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. In reaching this conclusion the second circuit court said: "We agree with our sister circuits [3rd, 6th, 7th, 8th, and 9th, but not the 1st, 4th, 5th, 10th, and 11th] that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay [for the plaintiff's] witness fees." See: Malik v. Lavalley , 994 F.2nd 90 (2 Cir. 1993).
On appeal the prisoner's principal argument was that the lower court judge should have secured the attendance at trial of two witnesses because he was unable to do so himself. The court refused to pay the necessary witness fees, even though the prisoner was proceeding in forma pauperis .
The court of appeals affirmed the judgment of the district court and held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. In reaching this conclusion the second circuit court said: "We agree with our sister circuits [3rd, 6th, 7th, 8th, and 9th, but not the 1st, 4th, 5th, 10th, and 11th] that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay [for the plaintiff's] witness fees." See: Malik v. Lavalley , 994 F.2nd 90 (2 Cir. 1993).
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Related legal case
Malik v. Lavalley
| Year | 1993 |
|---|---|
| Cite | 994 F.2d 90 (2nd Cir. 1993) |
| Level | Court of Appeals |
Malik v. Lavalley, 994 F.2d 90 (2nd Cir. 05/21/1993)
[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] Docket No. 92-2796
[4] decided: May 21, 1993.
[5] ABDEL-JABOR MALIK, PLAINTIFF-APPELLANT,
v.
THOMAS L. LAVALLEY, CORRECTIONS OFFICER, OFFICER BUCKLY, DEFENDANTS-APPELLEES.
[6] Pro se appeal from a final order and judgment entered in the United States District Court for the Northern District of New York, DiBianco, M.J., dismissing appellant's complaint in full. Judge McCurn referred the matter to the magistrate Judge pursuant to 28 U.S.C. § 636(c), and the parties consented to the referral for all purposes including entry of judgment.
[7] ABDEL-JABOR MALIK, Wallkill, NY, on the brief, Appellant Pro Se.
[8] ROBERT ABRAMS, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Andrea Oser, Assistant Attorneys General, Albany, NY, on the brief, for Appellees.
[9] Before: Meskill, Chief Judge, Pierce and Walker, Circuit Judges.
[10] Per Curiam:
[11] Abdel-Jabor Malik is a pro se civil litigant who has been granted in forma pauperis status in this litigation. His complaint under 42 U.S.C. § 1983 against two corrections officers for excessive use of force was dismissed after a bench trial and judgment was entered on December 15, 1992. On appeal, Malik's principal argument is that the magistrate Judge should have secured the attendance at trial of two witnesses because Malik was unable to do so himself. The court refused to pay the necessary witness fees even though Malik was proceeding in forma pauperis.
[12] We affirm the judgment of the district court and write in order to bring this Circuit in line with the various other circuits that have held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. See, e.g., Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S. 965, 99 L. Ed. 2d 435, 108 S. Ct. 1236 (1988); Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986) (per curiam); United States Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir. 1984); Johnson v. Hubbard, 698 F.2d 286, 289-90 (6th Cir.), cert. denied, 464 U.S. 917, 78 L. Ed. 2d 260, 104 S. Ct. 282 (1983). We agree with our sister circuits that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay for Malik's witness fees.
[13] The Supreme Court has written in the context of indigent litigants that "the expenditure of public funds is proper only when authorized by Congress." United States v. MacCollom, 426 U.S. 317, 321, 48 L. Ed. 2d 666, 96 S. Ct. 2086 (1976). Because Congress has not authorized courts to pay an indigent litigant's witness fees, the district court did not err by refusing to pay Malik's.
[14] We have considered Malik's other contentions and find them to be without merit.
[15] Disposition
[16] We affirm the judgment of the district court.
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[1] UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
[2] Docket No. 92-2796
[4] decided: May 21, 1993.
[5] ABDEL-JABOR MALIK, PLAINTIFF-APPELLANT,
v.
THOMAS L. LAVALLEY, CORRECTIONS OFFICER, OFFICER BUCKLY, DEFENDANTS-APPELLEES.
[6] Pro se appeal from a final order and judgment entered in the United States District Court for the Northern District of New York, DiBianco, M.J., dismissing appellant's complaint in full. Judge McCurn referred the matter to the magistrate Judge pursuant to 28 U.S.C. § 636(c), and the parties consented to the referral for all purposes including entry of judgment.
[7] ABDEL-JABOR MALIK, Wallkill, NY, on the brief, Appellant Pro Se.
[8] ROBERT ABRAMS, Attorney General of the State of New York, Peter H. Schiff, Deputy Solicitor General, Nancy A. Spiegel, Andrea Oser, Assistant Attorneys General, Albany, NY, on the brief, for Appellees.
[9] Before: Meskill, Chief Judge, Pierce and Walker, Circuit Judges.
[10] Per Curiam:
[11] Abdel-Jabor Malik is a pro se civil litigant who has been granted in forma pauperis status in this litigation. His complaint under 42 U.S.C. § 1983 against two corrections officers for excessive use of force was dismissed after a bench trial and judgment was entered on December 15, 1992. On appeal, Malik's principal argument is that the magistrate Judge should have secured the attendance at trial of two witnesses because Malik was unable to do so himself. The court refused to pay the necessary witness fees even though Malik was proceeding in forma pauperis.
[12] We affirm the judgment of the district court and write in order to bring this Circuit in line with the various other circuits that have held that federal courts are not authorized to waive or pay witness fees on behalf of an in forma pauperis litigant. See, e.g., Tedder v. Odel, 890 F.2d 210, 211-12 (9th Cir. 1989) (per curiam); Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987), cert. denied, 485 U.S. 991, 99 L. Ed. 2d 508, 108 S. Ct. 1298 (1988); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir. 1987), cert. denied, 485 U.S. 965, 99 L. Ed. 2d 435, 108 S. Ct. 1236 (1988); Cookish v. Cunningham, 787 F.2d 1, 5 (1st Cir. 1986) (per curiam); United States Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir. 1984); Johnson v. Hubbard, 698 F.2d 286, 289-90 (6th Cir.), cert. denied, 464 U.S. 917, 78 L. Ed. 2d 260, 104 S. Ct. 282 (1983). We agree with our sister circuits that no reading of 28 U.S.C. § 1915 supports the contention that Congress authorized the federal courts to waive or pay for Malik's witness fees.
[13] The Supreme Court has written in the context of indigent litigants that "the expenditure of public funds is proper only when authorized by Congress." United States v. MacCollom, 426 U.S. 317, 321, 48 L. Ed. 2d 666, 96 S. Ct. 2086 (1976). Because Congress has not authorized courts to pay an indigent litigant's witness fees, the district court did not err by refusing to pay Malik's.
[14] We have considered Malik's other contentions and find them to be without merit.
[15] Disposition
[16] We affirm the judgment of the district court.
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