577 F.2d 404 (7th Cir. 1978), 77-1723, Ford v. Carballo

Docket Nº:77-1723.
Citation:577 F.2d 404
Party Name:Jesse James FORD, III and Marvin Louis Madden, Plaintiffs-Appellees, v. Manuel CARBALLO and Thomas Israel, Defendants-Appellants.
Case Date:May 22, 1978
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit
 
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577 F.2d 404 (7th Cir. 1978)

Jesse James FORD, III and Marvin Louis Madden, Plaintiffs-Appellees,

v.

Manuel CARBALLO and Thomas Israel, Defendants-Appellants.

No. 77-1723.

United States Court of Appeals, Seventh Circuit

May 22, 1978

Argued Dec. 1, 1977.

Rehearing and Rehearing En Banc Denied July 17, 1978.

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James H. Petersen, Asst. Atty. Gen., Madison, Wis., for defendants-appellants Carballo and Israel.

John A. Nelson, Asst. U.S. Atty., Milwaukee, Wis., for appellees United States of America and United States Marshals Service.

Darryl S. Bell, Milwaukee, Wis., for plaintiffs-appellees.

Before CUMMINGS and WOOD, Circuit Judges, and GRANT, Senior District Judge. [*]

GRANT, Senior District Judge.

This appeal arises from an order of the United States District Court for the Western District of Wisconsin. The court's jurisdiction is invoked pursuant to 28 U.S.C. § 1291. The order under review, entered 4 May 1977, denied the claim of Thomas R. Israel, as Warden of the Wisconsin State Prison, and then Defendant Manuel Carballo against the United States of America and the United States Marshal's Service for the cost of transporting and guarding Jesse James Ford from the Wisconsin State Prison at Waupun, Wisconsin, to the Federal Building in Milwaukee, Wisconsin. Because the order was ancillary to a judgment previously entered in favor of Israel, Carballo, and others, no judgment based on the 4 May 1977 order was entered. Thus, the 4 May 1977 order was a final decision for appeal purposes. See Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

Jesse James Ford III and Marvin Louis Madden commenced a civil rights action in the United States District Court for the Western District of Wisconsin challenging certain past acts by prison administrators and additionally seeking injunctive relief. Wilbur J. Schmidt and Ramon L. Gray were defendants only in the claim for monetary damages because they had subsequently left state employment. Manuel Carballo and Thomas R. Israel were defendants in the claim for injunctive relief because they were then holding the positions previously held by Schmidt and Gray.

The suit was tried on 7 January 1977. Prior thereto, on 3 January 1977, the District Court had issued a writ of habeas corpus ad prosequendum directing both the United States Marshal for the Eastern District of Wisconsin and Thomas R. Israel, as Warden of the Wisconsin State Prison, to:

(H)ave the body of Jesse James Ford III, now detained at the Wisconsin State Prison at Waupun, Wisconsin, in their custody under safe and secure conduct at Room 225, Federal Building, 517 East Wisconsin Avenue, Milwaukee, Wisconsin, commencing on Friday, January 7, 1977, at 10:00 AM for the purposes of trial.

It is further ordered that at the completion of said proceeding, the above named warden and marshal return the prisoner to said institution under safe and secure conduct and have then and there this writ.

When the Marshal served the writ on Warden Israel, the Warden's designee was

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told that the United States Marshal would not transport Jesse James Ford...

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