Ball v. Woods

• Decision Date: 04 November 1975
• Docket Number: 75-P-0155-W,Civ. A. No. 74-P-1199-W,75-P-0549-W and 75-P-2078-W.
• Parties: Earnest BALL, Plaintiff, v. Larry WOODS et al., Defendants. Earnest BALL, Plaintiff, v. Dr. SHAMBLIN et al., Defendants. Earnest BALL, Plaintiff, v. John DWYER et al., Defendants. Earnest BALL, Plaintiff, v. HOLMAN PRISON OFFICIALS et al., Defendants.
• Court: U.S. District Court — Northern District of Alabama

402 F. Supp. 803

Earnest BALL, Plaintiff, v. Larry WOODS et al., Defendants.

Earnest BALL, Plaintiff, v. Dr. SHAMBLIN et al., Defendants.

Earnest BALL, Plaintiff, v. John DWYER et al., Defendants.

Earnest BALL, Plaintiff, v. HOLMAN PRISON OFFICIALS et al., Defendants.

Civ. A. Nos. 74-P-1199-W, 75-P-0155-W, 75-P-0549-W and 75-P-2078-W.

United States District Court, N. D. Alabama, W. D.

November 4, 1975.

George Woodruff Harris, Birmingham, Ala., for plaintiff in No. 74-P-1199-W.

Earnest Ball, pro se in Nos. 75-P-0155-W, 75-P-0549-W and 75-P-2078-W.

J. Wagner Finnell, Glenn N. Baxter, Tuscaloosa, Ala., for defendants in No. 74-P-1199-W.

Wayne L. Williams, Zeanah, Donald, Lee & Williams, Tuscaloosa, Ala., for defendants in No. 74-0155-W.

Martin Ray, Tuscaloosa, Ala., for defendants in No. 75-P-0549-W.

No appearance for defendants in No. 75-P-2078-W.

MEMORANDUM OF OPINION

POINTER, District Judge.

Earnest Ball, presently serving a life sentence in Alabama's Holman prison, has filed in this court three civil actions for damages under 42 U.S.C.A. § 1983. One (CA 74-1199) charges that unreasonable force was used by Tuscaloosa city policemen in effecting his arrest in connection with a domestic squabble, a struggle during which one of the arresting officers was killed by Ball with a shotgun. A second (CA 75-155) asserts that a treating physician gave Ball inadequate treatment for injuries he subsequently sustained during that arrest. His third case (CA 75-549) alleges that he was mistreated by Tuscaloosa county jail officials while awaiting trial for murder of the policeman, the offense of which he was subsequently convicted and for which he received his present sentence. None of the actions, it will be noted, challenges the validity or conditions of his present incarceration.

After allowing Ball to file these actions in forma pauperis, the court made requests of several lawyers to undertake representation of Ball. A willing attorney was finally located by the Magistrate; but he, after investigation, asked that his representation be limited to the case challenging the force used in Ball's arrest. That request was granted, with the other two cases thereafter being docketed as pro se.

In the "malpractice" case, the court granted defendant's motion for summary judgment, concluding that the action was barred by Alabama's one-year statute of limitations, which, by analogy, would apply to a federal civil rights claim of a similar nature.¹ Ball, pro se, has filed a notice of appeal from this decision, asking that he be allowed to proceed in forma pauperis and that an attorney be appointed to represent him. By separate order the court has noted that his status as a pauper continues under F.R.A.P. 24(a),² but has denied the request for appointment of counsel.

Case 74-1199, the "arrest" case in which Ball is represented by counsel, has been scheduled for trial in Tuscaloosa on a docket commencing November 10, 1975. Upon publication of the docket, Ball's attorney filed a motion to have Ball present for the trial and hence available to give testimony in person in the case. It seeks an order directing the U. S. Marshal to bring Ball to federal court in Tuscaloosa for the trial, with the expenses of this transportation and custody being taxed as court costs — meaning that these expenses would be ultimately borne by the United States should Ball be unsuccessful, or by the defendants should he be successful, in his suit.

Though not so labelled, the motion is to be treated as a petition for a writ of habeas corpus ad testificandum, to be directed to state prison officials at Holman, an institution located outside this judicial district and, indeed, more than 100 miles from any place for holding court in this district. The court is called upon to answer several questions: Does it have power to grant the petition? If so, must it grant the petition? If discretion is involved, what factors or circumstances should be taken into consideration? If Ball is not to be brought to court for the trial, what action should be taken with respect to further proceedings in the case — and, indeed, does an answer to this question affect the answer to the preceding questions?

The motion is filed only in the "arrest" case. However, it is obvious that similar problems will arise with respect to further proceedings in Ball's "jail" case, in which he is not represented by counsel. Moreover, since very few decisions have been published in recent years despite the recurring nature of this type of issue, an opinion of greater than normal length and detail seems appropriate.

DISCUSSION

Federal courts "may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." 28 U.S.C. § 1651 (1964 ed.) (All Writs Statute). This section empowers, for example, an appellate court to require production of a prisoner to argue personally the appeal of a case involving his life or liberty, even though such a writ was not known at common law. Price v. Johnston, 334 U.S. 266, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948).³

In the present case the court is not dealing with the All Writs Statute,⁴ but rather with a petition for habeas corpus of a form (ad testificandum) which was recognized at common law,⁵ and which, at least by implication, is covered by federal statute.⁶ But if such writ is provided for by statute, it is also presumably subject to the limitations contained by that statute; namely, that it may be granted by "the district courts * * * within their respective jurisdictions." At the outset, then, it is necessary to determine whether the state prison officials at Atmore, Alabama, are within the jurisdiction of this court, Atmore being outside this district and more than 100 miles from any place for holding court in this district.

Under a 1948 decision of the Supreme Court, issuance of writs under this statute was held limited to situations where the prisoner was within the territorial boundaries of the court. Ahrens v. Clark, 335 U.S. 188, 68 S.Ct. 1443, 92 L.Ed. 1898 (1948). Years later, but apparently in response to Ahrens, the habeas corpus statutes were amended to permit the petition to be filed in a multi-district state not only in the district of confinement, but also in the district in which the sentencing court was located. See 28 U.S.C. § 2241(d), adopted 1966. Facially, this subsection appears to give this court jurisdiction to grant Ball's petition. However, the legislative history seems clear that the amendment was intended to deal with the typical habeas action,⁷ that is, where the prisoner is challenging the legality of his confinement, and not with the ad testificandum variety, where the district of the sentencing court may have no connection either with the custody of the prisoner or with the action where the prisoner's testimony is desired.

In any event, the Supreme Court has subsequently determined that writs may be issued under 28 U.S.C. § 2241(a) "so long as the custodian can be reached by service of process". Braden v. Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1130, 35 L.Ed.2d 443 (1973).⁸ Here, the Holman prison officials are within the range of the process powers of this court, F.R.Civ.P. 4(f); and, accordingly, the court concludes that it does have jurisdiction to grant the writ requested by Ball.

Must that power, however, be exercised by the court on the prisoner's application?

In cases challenging the validity of confinement in which there are material factual disputes as to events in which the prisoner participated, the Supreme Court has all but mandated the presence of the prisoner. See Walker v. Johnston, 312 U.S. 275, 285, 61 S.Ct. 574, 85 L. Ed. 830 (1941) (habeas corpus); United States v. Hayman, 342 U.S. 205, 222, 72 S.Ct. 263, 96 L.Ed. 232 (1952) (28 U.S.C. § 2255). These decisions were in essence grounded upon principles of statutory construction and policy, rather than constitutional requirements; and, as noted, they dealt with situations involving the very legality of incarceration. Nor was the court called upon to determine the efficacy of other forms of testimony, such as depositions, as contrasted to presentation by affidavits.

In civil actions not involving the validity or conditions of confinement, however, those courts with which the question has been raised have, without exception, concluded that a prisoner-party has no absolute right to be present and give testimony in person. Thus, in Edgerly v. Kennelly, 215 F.2d 420 (CA 7 1954), the Court of Appeals ruled that the prisoner-plaintiff, in a case quite similar to Ball's, had no constitutional right to production at a trial of his case and that, indeed, it was proper for the trial court to dismiss the case, apparently with prejudice, for want of prosecution when the case was called for trial.⁹ In so holding, the appellate court stated:

"It must be remembered that a person in his unfortunate situation is stripped of many of the rights possessed by a free person and guaranteed by the Constitution. As stated in Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356: `Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.'" 215 F.2d at 423.

A similar decision has been reached by the Ninth Circuit in McKinney v. Boyle, 447 F.2d 1091 (CA 9 1971). See also Armstrong v. Rushing, 352 F.2d 836 (CA 9 1965), where a distinction is made between appearing in court, on the one hand, and a right to file, to receive notice, and to submit written briefs, on the other hand.

No Fifth Circuit decision directly in point has been located.¹⁰ However, in a brief opinion denying a prisoner's assertion of denial of access to state courts for a damage action, one ground of which related to his inability to appear in person before the state trial court, the Fifth Circuit...