United States District Court, W.D. Washington, Tacoma
ORDER ON PLAINTIFF'S MOTION FOR SUBPOENA FORMS,
AND PETITIONS FOR WRITS OF HABEAS CORPUS
J. BRYAN United States District Judge
MATTER comes before the Court on Plaintiff's Motion to
Request Four Subpoena Forms to Call Four Pierce County
Employees to be Witnesses at Trail [sic] (Dkt. 170),
Plaintiff's Petition for Writ of Habeas Corpus Ad
Testificandum for Plaintiff Michael Denton (Dkt. 171) and
Plaintiff's Petition for Writ of Habeas Corpus Ad
Testificandum for Oscar Sanabria (Dkt. 172).
April 28, 2016, Plaintiff, a prisoner acting pro se, filed
this case pursuant to 42 U.S.C. § 1983. Dkts. 1 and 4.
In his Second Amended Complaint, Plaintiff alleges that while
he was a pre-trial detainee in the Pierce County, Washington
jail, Defendants Lieutenant Charla James-Hutchinson and
Sergeant Jackie Caruso violated his due process rights when
they revoked his good time credits and placed him in
administrative segregation. Dkt. 99. He asserted that
Defendants Sheriff Paul Pastor and Captain Marvin Spencer
violated his first amendment rights when they created a
policy which denied Plaintiff (and all prisoners in
administrative segregation) receipt of incoming publications,
including subscription magazines and books. Id. On
January 5, 2018, the undersigned adopted a Report and
Recommendation (Dkt. 155), and dismissed all Plaintiff's
claims except the claim that Defendants Lieutenant Charla
James-Hutchinson and Sergeant Jackie Caruso violated his due
process rights when they revoked his good time credits. Dkt.
166. (The caption for this order reflects, and all future
pleadings shall reflect, that the only defendants left are
Defendants James-Hutchinson and Caruso). This case is set to
begin trial on August 13, 2018 on one claim: Plaintiff's
claim that Defendants James-Hutchinson and Caruso denied him
due process when they revoked his good time credits.
January 25, 2018, Plaintiff filed the pending motion and two
petitions. Dkts. 170-172. The Defendants responded and
Plaintiff replied. Dkts. 175 and 178. The parties then agreed
to attempt to settle the case, and the matter was referred to
a U.S. Magistrate Judge for a settlement conference. The
pending motion and two petitions were renoted for
consideration on May 25, 2018. The case did not settle. The
motion and petitions are now ripe.
Motion to Request Four Subpoena Forms to Call Four Pierce
County Employees to be Witnesses at Trial.
motion, the Plaintiff moves the Court to send him four
subpoena forms in order that he may subpoena Pierce County,
Washington employees: “Sgt. Forrest Ake, Officer
Sandoval, Officer Elizabeth Earp, and Officer Kristie
Herbison.” Dkt. 170. In response, the Defendants state
that “they have no objections to the Court forwarding
forms to Plaintiff, if that is how the Court wants the
subpoenas to issue.” Dkt. 175. The Defendants argue,
however, that the Court should reserve ruling on this matter
until the pre-trial order is filed. Id.
motion for four subpoena forms (Dkt. 170) should be granted.
The Clerk should be directed to send Plaintiff four subpoena
forms with the employee names filled out.
of Habeas Corpus Ad Testificandum Generally.
28 U.S.C. §2241 (c)(5), “[t]he writ of habeas
corpus shall not extend to a prisoner unless . . . [i]t is
necessary to bring him into court to testify or for
for Writ of Habeas Corpus Ad Testificandum for Plaintiff
determining whether it should issue a writ of habeas corpus
ad testificandum to bring a state prisoner plaintiff into
federal court, the district court must exercise its
discretion based upon consideration of “whether the
prisoner's presence will substantially further the
resolution of the case, the security risks presented by the
prisoner's presence, the expense of the prisoner's
transportation and safekeeping, and whether the suit can be
stayed until the prisoner is released without prejudice to
the cause asserted.” See Wiggins v. Alameda
Cty., 717 F.2d 466, 469 n. 1 (9th Cir. 1983).
was decided in 1983, around 35 years before the present day,
with all sorts of technology advances in the courtroom. Under
Fed.R.Civ.P. 43 (a), “for good cause in compelling
circumstances and with appropriate safeguards, the court may
permit testimony in open court by contemporaneous
transmission from a different location.” There is
sufficient good cause and compelling circumstances in this
case to have the Plaintiff appear via live videoconferencing.
Plaintiff has already appeared in front of the magistrate
judge for the settlement conference using this technology.
the availability of live videoconferencing, the question,
then, is whether Plaintiff's physical presence at court
for the trial outweighs the considerations of security risks
and expenses, which are discussed below. See Howard v.
Farmers Insurance Company, Inc., 2017 WL 3891654 (C.D.
Cal. Sept. 6, 2017)(denying pro se prisoner plaintiff's
petition for writ of habeas corpus ad testificandum and
finding under the Wiggins factors that he could
prosecute his breach of contract case in California federal
court via video conference while being housed in Florida