Johnson v. Hubbard
| Decision Date | 20 April 1983 |
| Docket Number | No. 81-3249,81-3249 |
| Citation | 698 F.2d 286 |
| Parties | Willard E. JOHNSON, Plaintiff-Appellant, v. Ronald HUBBARD, Lewis Lindner, Kahlil Matouk, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Willard E. Johnson, pro se on the brief.
Robert E. Fleming, Louisville, Ky. (Court-appointed) (argued), for plaintiff-appellant.
Michael L. Cioffi, Mike Noonan, Asst. Attys. Gen., Columbus, Ohio, for defendants-appellees.
Before KENNEDY, Circuit Judge, and SWYGERT * and PECK, Senior Circuit Judges.
On July 7, 1975 Willard Johnson was committed to Lima State Hospital (LSH) after being convicted as a psychopathic offender. Three years later, the Ohio legislature enacted a new law requiring all individuals so committed to mental institutions to be reexamined. Ohio Rev.Code Secs. 5122.11; 5122.15. The purpose of such reexamination is to determine whether continued mental care is needed.
In August, 1980, despite preliminary indications that his psychiatrists thought he needed additional medical treatment, Johnson was found no longer to require treatment and the Ohio probate court ordered Johnson transferred to the Ohio Department of Rehabilitation and Corrections (DRAC). Both of Johnson's psychiatrists affirmatively testified in support of the transfer.
Johnson filed a civil rights action in forma pauperis against his two psychiatrists, Dr. Lewis Lindner and Dr. Kahlil Matouk. He claimed that they had changed their testimony as a means of retaliating against him for exercising his constitutional rights. He also filed a civil rights suit against Ronald Hubbard, the director of LSH, alleging that Hubbard had knowledge of the acts of Lindner and Matouk and was directly and indirectly involved in their actions.
Before the hearing on the preliminary injunction was scheduled to begin, Johnson submitted a letter to the court indicating that he wished to subpoena some twelve witnesses, but that he was unable to pay their transportation costs and other fees specified by law. Johnson requested that the court pay such fees for him. In response the court informed Johnson that it had no source of money from which to pay such fees and knew of no way to satisfy his request.
On the day of the hearing only one of Johnson's witnesses appeared. After Johnson had again informed the court that he was unable to pay the fees to his witnesses, the district judge dismissed the case for lack of prosecution. Johnson appeals that decision, arguing that by dismissing his claim the district court denied him access to the court to prosecute his case and that under 28 U.S.C. Sec. 1915 the court had an obligation to pay the witness fees. Johnson also argues the district court abused its discretion by not allowing him an opportunity to present his evidence in an alternative manner. We agree with the district court that no constitutional violation occurred in this case and that no basis exists for providing funds under Sec. 1915.
Initially, appellant Johnson argues his constitutional right of "access to the courts" was violated when the district court refused to pay his witness fees. If the court refuses to assist him by paying his witness fees, he contends this right of access is abridged. We disagree.
In Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) the Supreme Court developed the concept of "access to the courts." In that case, the Court was faced with the question of whether denying an indigent plaintiff access to the court for dissolution of her marriage because she could not pay a filing fee was a violation of her fourteenth amendment rights. The Court held that where inability to pay fees totally denied an individual a right of access to the only avenue available for the exercise of her rights, such a fee had to be waived by the court. Id. at 380, 91 S.Ct. at 787.
In Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977) the Court further clarified the meaning of "right of access" to the courts. In Bounds, where a prisoner was denied adequate legal assistance or the use of a law library, the right was violated. Id. at 822-23, 97 S.Ct. at 1495. Justice Marshall stated that "meaningful access" included the right to adequately prepare one's case for adjudication. Id. at 823-24, 97 S.Ct. at 1495-1496. Lower federal courts have further developed this right by requiring prisons and other institutions to allow inmates access to nearby law libraries and requiring that potential prisoner litigants be given legal assistance and reasonable access to legal information. See Rhodes v. Robinson, 612 F.2d 766, 771 (3d Cir.1979) (); Battle v. Anderson, 614 F.2d 251, 255 (10th Cir.1980).
In clarifying the "right of access" the courts have developed a distinction between actual access to the court and procedures essential to the trial process. While In this case, Johnson requested that the court pay his witness fees, arguing that if they did not, his right of access to the courts would be denied. Unlike Boddie, supra, Johnson was declared indigent and the filing fees and other preliminary court charges were waived. Further, unlike Bounds, supra, Johnson was able to develop and prepare his case. Johnson insists that the right of access should go one step further and also encompass witness fees to ensure that he can present his case completely to the court. We hold that the right of access does not extend that far.
allowing potential plaintiffs and defendants access to law libraries and other legal assistance, or the waiver of certain pretrial fees, there is no constitutional requirement to waive costs of transcripts, expert witness fees, and fees to secure depositions. See Moss v. Thomas, 299 F.2d 729 (6th Cir.1962); Doe v. Schneider, 443 F.Supp. 780 (D.Kan.1978) (right of access to courts does not encompass right of access to information to substantiate claim). See generally, 20 A.L.R.Fed. 274 (1974) (basis for waiver of certain fees or costs statutory under 28 U.S.C. Sec. 1915 rather than constitutionally required). 1 Only where such fees may be waived by statute can a party seek such a waiver. See 28 U.S.C. Sec. 1915(a)
Initially, while a party under certain circumstances is granted the right of access to the courts, we do not feel that such a right requires a court to grant every party a perfect trial in all aspects. Witness fees clearly fall in the category of items such as trial transcripts, depositions, and other documents, which the constitution does not require a court, or in practical terms, the federal government, to pay for at the request of the indigent party. Johnson is not barred from access to the courts simply because the court will not or cannot pay for all his witnesses to appear. Johnson has numerous alternative methods to proceed with his case.
In sum, therefore, we hold that right of access does not encompass a requirement that a court pay a party's witness fees absent a statutory authorization. 2
STATUTORY BASIS
Appellant Johnson's second contention is that 28 U.S.C. Sec. 1915 requires that the court pay a plaintiff in a civil rights action a plaintiff's reasonable witness fees when that plaintiff is declared indigent and unable to pay such costs. Again, we disagree.
Section 1915 is a statutory scheme by which courts may waive certain court fees where a party is declared an indigent. Section Section 1915(c) must be read in conjunction with its criminal law counterpart, Sec. 1825. 3 Section 1825 was passed in 1965 in response to a judicial holding which had allowed for the payment of witness fees in criminal cases where the defendant was indigent. Estep v. United States, 251 F.2d 579, 582 (5th Cir.1958). See also, Dortly v. Bailey, 431 F.Supp. 247, 248-50 (M.D.Fla.1977) (outlines history of Sec. 1825). At the same time, however, Congress failed to change Sec. 1915 to allow for payment of such witness fees in civil cases. We feel this failure is controlling in this case. See Decisions of the Comptroller General, 53 Comp.Gen. 645.
1915(c) in particular allows the court to waive certain preliminary court fees whenever a party is declared indigent. It provides: "(c) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law in other cases." 28 U.S.C. Sec. 1915(c). We do not think the language of Sec. 1915(c) can support such a reading
At all times, a court must carefully scrutinize legislation to follow the spirit and meaning of each congressional enactment. Nonetheless, it must remember the proper province of the judiciary is to interpret the laws, not to create them. This concept is especially important where the construction involves the doctrine of sovereign immunity. See United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct. 2086, 2089, 48 L.Ed.2d 666 (1976) (). See United States v. Sherwood, 312 U.S. 584, 590, 61 S.Ct. 767, 771, 85 L.Ed. 1058 (1941). In this case, absent a clearly expressed grant of congressional waiver of sovereign immunity, we are constrained to hold no such waiver was given. 4
Johnson's final contention is that the district judge's dismissal of the suit immediately after Johnson's failure to produce a number of his witnesses was an abuse of discretion. Since other avenues for procuring funds were available, the judge should have given Johnson, he contends, more time to solve the problem of lack of funds.
This court recognizes the tremendous difficulties facing a district judge. Facing crowded dockets, it is quite...
To continue reading
Request your trial
-
U.S. Marshals Service v. Means
...that section 1915 covers witness fees, but that the Sixth Circuit later abandoned the Morrow footnote as dicta, Johnson v. Hubbard, 698 F.2d 286, 290 n. 4 (6th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983). Johnson specifically held that section 1915(c) does not r......
-
Murphy v. International Union of Operating Engineers, Local 18
...(1980); Kivi v. Nationwide Mut. Ins. Co., 695 F.2d 1285, 1289 (11th Cir.1983). The law in the Sixth Circuit is unclear. In Johnson v. Hubbard, 698 F.2d 286 (6th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983), and Northcross v. Board of Ed. of Memphis City Schools, ......
-
Thomas v. Stevens
...requirement to waive costs of transcripts, expert witness fees, and fees to secure depositions); see also Johnson v. Hubbard, 698 F.2d 286, 289 (6th Cir. 1983) (“Witness fees clearly fall in the category of items such as trial transcripts, depositions and other documents, which the constitu......
-
Monson v. Madison Family Institute
...Under Rule 41(b) of Federal Rules of Civil Procedure, 20 ALR Fed. 488 (1974) [hereafter 20 ALR Fed. 488].7 See also Johnson v. Hubbard, 698 F.2d 286 (6th Cir.) cert. denied, 464 U.S. 917 (1983); Reizakis v. Loy, 490 F.2d 1132, 1135 (4th Cir.1974); Schilling, 805 F.2d at 273; Citizens Utilit......
-
Impossible to Forget: Maness v. Gordon and Alaska's Response to the Repressed Memory Controversy
...filing fee"). [173]Maness, 325 P.3d at 528. [174]Id. [175]Id. [176] 831 F.2d 1368 (7th Cir. 1987). [177]Id. at 1373. [178]Id. [179] 698 F.2d 286 (6th Cir. [180]Id. at 289. [181] Maness v. Gordon, 325 P.3d 522, 528 (Alaska 2014). [182] Cal. Civ. Proc. Code § 340.1 (West 1992); La. Rev. Stat.......