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Lloyd v. McKendree

United States Court of Appeals, Eleventh Circuit
Jan 3, 1985
749 F.2d 705 (11th Cir. 1985)

Summary

holding that, because the power to subpoena witnesses for an indigent civil litigant is discretionary, "the district court did not abuse its discretion when it denied [a civil rights litigant's] . . . subpoena request" where the litigant had not tendered the fee for the witness

Summary of this case from Wright v. Langford

Opinion

No. 84-3073. Non-Argument Calendar.

January 3, 1985.

Gayle S. Swedmark, Tallahassee, Fla., for defendant-appellee.

Appeal from the United States District Court for the Middle District of Florida.

Before GODBOLD, Chief Judge, KRAVITCH and HATCHETT, Circuit Judges.


This is an appeal in two consolidated Sec. 1983 cases.

The district court did not err in finding that petitioner was arrested with probable cause. The testimony was in conflict, and the court did not believe petitioner's witnesses.

Nor did the court err in finding that petitioner was not placed in administrative confinement for punitive reasons but for a legitimate purpose of preventing him from intimidating a witness who was to testify in a matter involving petitioner.

The evidence supports findings that petitioner was not denied medical care, that conditions of confinement were not unconstitutional, and that petitioner had reasonable access to the courts.

The court did not abuse its discretion in denying petitioner's untimely request for a jury trial.

The district court refused to subpoena petitioner's former attorney to testify without tender of fees. The court ruled that a witness in a civil case must be tendered fees before service of the subpoena is complete and that 28 U.S.C. § 1915(c), which provides for proceedings in forma pauperis, does not abrogate this requirement. Under Fed.R.Civ.Pr. 45(c) service of a subpoena in a civil case must include the tendering of fees unless the subpoena is issued on behalf of the United States. 28 U.S.C. § 1915(a) specifies that a court "may authorize the commencement . . . of any suit . . . without prepayment of fees and costs . . ." (emphasis added). Likewise, while the Fifth Circuit has suggested that district courts have either the implied or inherent power to subpoena witnesses for an indigent civil litigant, this power is discretionary. Estep v. U.S., 251 F.2d 579 (5th Cir. 1958)

The district court is required to issue subpoenas for indigent parties only in criminal proceedings, see Fed.R.Crim.Pr. 17(b), and in civil proceedings for a writ of habeas corpus or pursuant to 28 U.S.C. § 2255. See 28 U.S.C. § 1825. See also S.REP. NO. 615, 89th Cong., 1st Sess (1965), reprinted in 1965 U.S. Code Cong. Ad. News 2901; Hudson v. Ingalls Ship-building Division, 516 F. Supp. 708 (S.D.Ala. 1981); Dortly v. Bailey, 431 F. Supp. 247 (M.D.Fla. 1977). Since this is not such a case, it was within the district court's discretion to deny the subpoena request. Lloyd has shown no abuse of this discretion. Estep, 251 F.2d at 582.

AFFIRMED.


Summaries of

Lloyd v. McKendree

United States Court of Appeals, Eleventh Circuit
Jan 3, 1985
749 F.2d 705 (11th Cir. 1985)

holding that, because the power to subpoena witnesses for an indigent civil litigant is discretionary, "the district court did not abuse its discretion when it denied [a civil rights litigant's] . . . subpoena request" where the litigant had not tendered the fee for the witness

Summary of this case from Wright v. Langford

holding that 28 U.S.C. § 1915(c), which in 1996 was redesignated as § 1915(d), does not abrogate the requirement that fees must be tendered before service of the subpoena

Summary of this case from Smith v. Florida Dept. of Corrections

holding that district courts have inherent power to deny subpoena requests to indigent litigants

Summary of this case from DOYE v. COLVIN
Case details for

Lloyd v. McKendree

Case Details

Full title:WINSTON O. LLOYD, PLAINTIFF-APPELLANT, v. H.S. McKENDREE, ETC.…

Court:United States Court of Appeals, Eleventh Circuit

Date published: Jan 3, 1985

Citations

749 F.2d 705 (11th Cir. 1985)

Citing Cases

Hodge v. Prince

The only portion of the Rule that concerns nonpayment of fees and mileage pertains to subpoenas issued on…

Wright v. Langford

As such, the district court did not abuse its discretion in denying Mr. Wright's subpoena requests. Cf. Lloyd…