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Governments, Not Prisoners, Must Pay Cost of Transporting Prisoner Witnesses

A federal court in Georgia held that costs taxed against an incarcerated litigant who lost his lawsuit could not include the cost of transporting prisoner witnesses to testify at trial.

Dexter Palmer, a Georgia state prisoner, filed a civil rights suit in federal district court under 42 U.S.C. § 1983 that alleged excessive use of force by prison guards. As part of the jury trial, other state prisoners were transported to the court as witnesses. The jury verdict was against Palmer.

The defendant prison officials filed a post-trial motion for costs in the amount of $1,560.56, which included $1,257.17 for transporting the prisoners who were witnesses. The court granted the motion and Palmer filed a motion to reconsider.

The district court noted that costs were authorized under Federal Rule of Civil Procedure 54(d)(1). However, the only costs that could be taxed were those authorized by statute.
Taxable costs are set by 28 U.S.C. § 1821(f), which does not include the cost of transporting prisoners to appear as witnesses at trial. Furthermore, Congress authorized the issuance of a writ of habeas corpus ad testificandum to secure the testimony of prisoner witnesses in federal court. That writ is issued to the custodian of a prisoner, not the prisoner. Therefore, the custodian bears the cost of transporting the prisoner to the court.

To hold costs to a minimum, courts should cull an incarcerated litigant’s list of prisoner witnesses based upon relevancy, cumulativeness and the need for their testimony, the district court observed. However, governments, not prisoners, must bear the cost of transporting prisoner witnesses. Therefore, the court granted Palmer’s motion and deleted $1,257.17 from the costs award, leaving a balance of $303.39 in costs. See: Palmer v. Simmons, U.S.D.C. (SD Ga.), Case No. 6:04-cv-00075-BAE (April 9, 2007); 2007 WL 1052683.

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Related legal case

Palmer v. Simmons