Willard E. Johnson v. Ronald Hubbard, Lewis Lindner, Kahlil Matouk , 698 F.2d 286 ( 1983 )

JOHN W. PECK, Senior Circuit Judge.

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 §§ 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 for-ma 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. § 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 § 1915.

ACCESS TO THE COURTS

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) (adequacy of library or legal assistance key factor); 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 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. § 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. § 1915(a).

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.

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. § 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 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. § 1915(c). We do not think the language of § 1915(c) can support such a reading.

Section 1915(c) must be read in conjunction with its criminal law counterpart, § 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 § 1825). At the same time, however, Congress failed to change § 1915 to allow for payment of such witness fees in civil cases. We feel this failure is controlling in this ease. See Decisions of the Comptroller General, 53 Comp. Gen. 645.

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) (where a case involves sovereign immunity and whether the Congress has provided for federal liability, the statute under question must be carefully construed). 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

ABUSE OF DISCRETION

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 understandable that a district judge would want to quickly and efficiently deal with the judicial business at hand. Certainly, however, a district judge must be flexible in allowing a plaintiff an adequate opportunity to present his evidence in such a manner as to minimize the cost of so doing, while ensuring that justice be done in a particular case. An outright dismissal should be a last resort. Boazman v. Economics Laboratory, 537 F.2d 210, 212 (5th Cir.1976) (use of dismissal harsh sanction and generally used only when evidence of delay or contumacious conduct by person is shown).

Even though there is no evidence of delay here, the trial judge had no real option but to dismiss the case for lack of prosecution. The three defendants in the case had appeared, and testimony already was being taken from Dr. Lindner. If one of the defendants had not shown up at the hearing, Johnson could have gotten evidence from them via Rule 33 interrogatories, but each of the defendants had appeared in court. See Rule 33, Fed.R.Civ. Pro. (1980). Finally it is highly unlikely that Johnson, already declared indigent, would produce funds in the reasonable future to pay such witness fees. Overall the trial judge had no real option but to dismiss the case when Johnson could not produce the evidence necessary to continue.⁵

We are acutely aware of the fact that the result in this case produces an unhappy situation where a plaintiff, declared indigent, has the rather hollow right of bringing his § 1983 action in district court, then is dismissed from that court when he is unable to pay to have his witnesses appear to present evidence in support of that claim. While we can find no legal basis to support the requirement to pay such witness fees, it seems apparent that legislative consideration similar to the Congressional action taken in connection with criminal and habeas corpus cases is indicated. It is paradoxical to provide an indigent plaintiff with the right to proceed in court, then deny him a meaningful chance to exercise that right by not providing him assistance in paying routine costs in so exercising that right.

Lacking statutory authority to do otherwise, we affirm.

1 . Justice Marshall in Bounds does indicate in dicta that the “right of access” to be “meaningful” might include more than pure access to the courts but the opinion in Bounds was only a plurality decision of four. See 430 U.S. 817, 824-25, 97 S.Ct. 1491, 1496, 52 L.Ed.2d 72 (1977). Justice Powell while agreeing in the holding of the case, clearly indicates that he would not go as far as Justice Marshall. He would continue the sub silentio distinction between pure access questions and other matters. Id. at 833, 97 S.Ct. at 1500 (Powell, J., concurring) (right of access to courts does not require a civil rights action be heard in court or that trial records be freely available on review). Cf. United States v. MacCollom, 426 U.S. 317, 319, 96 S.Ct. 2086, 2088, 48 L.Ed.2d 666 (1976) (Rehnquist, J., plurality) (due process does not require free transcript on appeal for indigent plaintiff in habeas corpus action).

2 . Johnson, in the alternative, argues that he has a fundamental right to bring a civil rights action in court under 42 U.S.C. § 1983, and that the court denied or infringed this right by not paying for the attendance of his witnesses. We disagree. Even if we were willing to declare such a right existed, which we see no reason at this time to do, the courts have held that such a right is not absolute. See Roe v. Wade, 410 U.S. 113, 155-56, 93 S.Ct. 705, 727-728, 35 L.Ed.2d 147 (1973). Such fundamental rights may be infringed by legitimate state regulations. Further, the state is not required to subsidize or insure that the right be fully and perfectly exercisable. Harris v. McRae, 448 U.S. 297, 316, 100 S.Ct. 2671, 2687, 65 L.Ed.2d 784 (1980). (The financial constraints that restrict an indigent woman’s ability to enjoy the full range of constitutionally protected freedom of choice are the product not of governmental restrictions on access to abortions, but rather of her indigency). Here, Johnson was able to bring his action in federal court, and present his issues to the court. The fact that the state was unwilling or unable to assist him by subsidizing the payment of his witness fees did not totally bar his efforts to bring the case.

3 . 28 U.S.C. § 1825 reads in pertinent part:

In any case wherein the United States or an officer or agency thereof, is a party, the United States marshal for the district shall pay all fees of witnesses on the certificate of the United States Attorney or Assistant United States Attorney, and in the proceedings before a United States Commissioner [magistrate], on the certificate of such Commissioner [magistrate].

In all proceedings, in forma pauperis, for a writ of habeas corpus or in proceedings under section 2255 of this title [28 USCS § 2255], the United States marshal for the district shall pay all fees of witnesses for the party authorized to proceed in forma pauper-is, on the certificate of the district judge. Fees and mileage need not be tendered to the witness upon service of a subpena issued in behalf of the United States or an officer or agency thereof, or upon service of a subpena issued on behalf of a party, authorized to proceed in forma pauperis, where the payment thereof is to be made by the United States marshal as authorized in this section.

4 . Johnson argues that this circuit in Morrow v. Igleburger, 584 F.2d 767, 772 n. 7 (6th Cir.), cert. denied, 439 U.S. 1118, 99 S.Ct. 1027, 59 L.Ed.2d 78 (1979), indicated a willingness to allow a court discretion to pay such fees. The footnote statement, however, was only dicta, since no finding of indigence had been made. While several other courts have granted such fees, no court has presented any thorough research of the point. See White v. Sullivan, 368 F.Supp. 292 (S.D.Ala.1973) (court in outline of facts mentioned waiver of such fees with no discussion of point).

5 . Johnson suggests that the court could avoid the problem of witness fees, chargeable against the government by taxing them as costs, payable by the losing side. See Cagle v. Cox, 87 F.R.D. 467, 470 (E.D.Va.1980) (court with its equitable discretion may award fees in excess of statutory authorization only in the exceptional case where expert’s testimony materially important to case and judge was notified ahead of time about the indigent’s status). This method of avoiding the problem, however, is not available. Under 28 U.S.C. § 1920(3), the court may tax as costs the fees paid to certain witnesses, within its discretion. This section has been construed on numerous occasions to encompass only expert testimony in a very restricted number of cases. See Moss v. ITT Cont’l Baking Co., 83 F.R.D. 624 (E.D.Va.1979); 6 Moore’s Federal Practice j| 54.77 5-3, at 1735 (2d ed. 1982). In this case, the procurement of expert testimony is not in issue. Here, only standard lay testimony by witnesses is presumably sought. We see no basis for expanding § 1920(3) beyond its present very limited usage, absent a more direct specification by Congress. Such an expansion would radically alter the meaning and effect of taxing costs in civil cases.