Clark v. Hendrix, Civ. A. No. C74-27G.

• Citation: 397 F. Supp. 966
• Decision Date: 07 July 1975
• Docket Number: Civ. A. No. C74-27G.
• Parties: Norman L. CLARK v. H. S. HENDRIX and William Rucker.
• Court: U.S. District Court — Northern District of Georgia

397 F. Supp. 966

Norman L. CLARK v. H. S. HENDRIX and William Rucker.

Civ. A. No. C74-27G.

United States District Court, N. D. Georgia, Gainesville Division.

July 7, 1975.

Ernest V. Harris, Georgia Legal Services Programs, Gainesville, Ga., for plaintiff.

Sam S. Harben, Jr., Robinson, Harben & Armstrong, Gainesville, Ga., Jack S. Davidson, Davis & Davidson, Jefferson, Ga., for defendants.

ORDER

O'KELLEY, District Judge.

This 42 U.S.C. § 1983 action is before the court on the plaintiff's motion to compel his production at trial and also to compel the production of a witness in his behalf. The cause of action in this suit arises from a time when the plaintiff was incarcerated in the Jackson County Correctional Institution and is one for which he seeks some $750,000 in monetary damages for the alleged denial of his constitutional rights by the named defendants. The plaintiff is presently a federal prisoner incarcerated at the United States Medical Center for Federal Prisoners in Springfield, Missouri. The witness whose attendance he seeks is presently a state prisoner incarcerated in the Georgia State Prison at Reidsville, Georgia. Since the plaintiff is indigent and proceeding in forma pauperis, he seeks to have the federal government bear all the expenses connected with this motion.

At the request of this court, the plaintiff is now being represented by Mr. Ernest V. Harris of the Georgia Legal Services Program. Mr. Harris has submitted an affidavit stating that in order for the plaintiff to receive a fair trial, the plaintiff must be in court and be able to testify personally and that it is equally necessary that the requested witness be present. The plaintiff essentially argues that he has a right to be brought to court and that he also has a right to have his witness produced for trial. The plaintiff does not cite any authority which would directly support his contention that he has such a right or that this court has the authority to order such production, but he relies on the principle that prisoners do not lose their right of access to the courts but that they retain their right to seek redress for their grievances even though they are incarcerated, citing Cruz v. Beto, 405 U.S. 319, 92 S.Ct. 1079, 31 L. Ed.2d 263 (1972); Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969).

Cruz held that the district court had erred in dismissing the complaint of a prisoner who alleged "that he was not allowed to use the prison chapel, that he was prohibited from writing to his religious advisor, and that he was placed in solitary confinement for sharing his religious material with other prisoners." 405 U.S. at 319, 92 S.Ct. 1079. The Court said that while prison officials had wide latitude in the administration of prison affairs, prisoners did have the right of access to the courts to seek redress for their grievances about the administration of the prison. Johnson held that Tennessee could not absolutely bar inmates from furnishing assistance to other prisoners in preparing petitions for post-conviction relief in the absence of some alternative for prisoners who were unable to prepare their own petitions. Each of these cases involved a situation where the prisoner sought to air a complaint about his confinement. See Andrade v. Hauck, 452 F.2d 1071 (5th Cir. 1971), where the Fifth Circuit noted that the fourteenth amendment protected "the right of prisoners to seek access to the courts for consideration of claims concerning the conditions of their incarceration." Id. at 1072 (emphasis supplied). Unlike the above cases, the plaintiff in this action does not complain about the conditions of his present confinement, nor does he seek any relief with respect to such confinement. Rather, the plaintiff seeks monetary damages in the sum of $750,000 in a civil suit for deprivations which were alleged to have occurred with respect to some earlier confinement. The Fifth Circuit has held that prisoners do not have an absolute right to file any civil action they desire and upheld a prison rule prohibiting the filing of any civil action unrelated to their personal liberty. Tabor v. Hardwick, 224 F.2d 526 (5th Cir. 1955), cert. denied, 350 U.S. 971, 76 S.Ct. 445, 100 L. Ed. 843 (1956). See also Kirby v. Thomas, 336 F.2d 462 (6th Cir. 1964). While prisoners do retain their right of access to the courts, this does not necessarily mean that a prisoner has some inherent constitutional right to appear personally at a hearing or at a trial with respect to the civil suit which he has filed. McKinney v. Boyle, 447 F.2d 1091 (9th Cir. 1971); Potter v. McCall, 433 F.2d 1087 (9th Cir. 1970); Armstrong v. Rushing, 352 F.2d 836 (9th Cir. 1965); cf. Edgerly v. Kennelly, 215 F.2d 420 (7th Cir. 1954). The Supreme Court very succinctly stated this principle in the case of Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948):

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U.S.C. § 394 now 28 U.S.C. § 1654 to parties in all courts of the United States to "plead and manage their own causes personally."

It is thus clear that the plaintiff in this action has no right to have a lawfully incarcerated prisoner produced as a witness at his civil trial for damages, nor does plaintiff have a right to be present himself. This is not to say, however, that a prisoner-plaintiff is totally foreclosed from having such witnesses in every circumstance—in situations where the court has jurisdiction over the potential witnesses it could undoubtedly exercise its discretion in a proper case and have such witnesses produced at trial.

To have the witnesses produced in this case as the plaintiff requests, the proper avenue for obtaining such relief is not through a motion to compel their production but is through the issuance of a writ of habeas corpus ad testificandum under the provisions of 28 U.S.C. § 2241. Since a prisoner is beyond the reach of an ordinary subpoena, this writ is the common law writ which is used to bring such an incarcerated prisoner to court to testify. Gilmore v. United States, 129 F.2d 199 (10th Cir. 1942); Neufield v. United States, 73 U.S.App.D.C. 174, 118 F.2d 375, 385 (1941). The granting of such a writ lies within the trial court's considered discretion. United States v. Lupino, 480 F.2d 720 (8th Cir. 1973); United States v. Goldenstein, 456 F.2d 1006 (8th Cir. 1972); Gilmore v. United States, supra. The case sub judice does not present a situation, however, where this court must only decide whether or not it should exercise its discretion to bring the plaintiff and the witness he desires to court. This case is further complicated by the fact that the plaintiff and the witness whose attendance he desires are both incarcerated outside the territorial jurisdiction of this court, the plaintiff's being in federal custody in Missouri and the witness' being in state custody at Reidsville, Georgia, which is in the Southern District of Georgia. The power to issue the writ granted by 28 U.S.C. § 2241(a) provides that such writs "may be granted by . . . the district courts . . . within their respective jurisdictions." (emphasis supplied). The threshold question then arises as to whether this court has the power to grant the relief which the plaintiff seeks in this case in light of the limiting phrase in § 2241(a).

There are three basic issues facing this court in the context of this case where a prisoner-plaintiff, proceeding in forma pauperis, seeks to have himself and a witness, both of whom are incarcerated outside the territorial jurisdiction of this court, produced in court to participate in his civil action for monetary damages unrelated to his present confinement: (1) Does this court have the power to issue a writ of habeas corpus ad testificandum to reach a prisoner incarcerated outside of its territorial jurisdiction to bring him to court to testify in a civil suit? (2) If this court does have such power, should it exercise its discretion in this instance to bring the plaintiff and his witness to court under the circumstances of this case? (3) If this court has the power and if this court feels that it should exercise its discretion to bring the prisoners to court, can federal funds be expended to cover the expenses of transporting, housing, feeding, and guarding the plaintiff and his witness during the time of the trial?

DOES THIS COURT HAVE THE POWER TO ISSUE THE WRIT EXTRATERRITORIALLY TO BRING A PRISONER TO COURT TO TESTIFY IN A CIVIL SUIT?

The question of whether or not this court has jurisdiction to issue a writ of habeas corpus ad testificandum outside of its jurisdiction is not an altogether settled issue. In one of the first cases where this issue was squarely presented to a court, the Seventh Circuit held that such a writ could not be issued extraterritorially. Edgerly v. Kennelly, 215 F. 2d 420 (7th Cir. 1954). Edgerly dealt with a case where the petitioner was seeking to be brought to Chicago from the federal penitentiary on Alcatraz Island, California, to have his deposition taken in conjunction with a civil rights action for money damages which he had instituted. In holding that the court could not issue a writ of habeas corpus ad testificandum extraterritorially, Edgerly held that 28 U.S.C. § 1651 (the all writs statute)¹ could not expand or extend the court's territorial jurisdiction. The court noted that the Supreme Court in United States v. Hayman, 342 U.S. 205, 72 S.Ct. 263, 96 L.Ed. 232 (1952), had held that 28 U.S.C. § 2255 created an exception to the general territorial jurisdiction of federal courts so that a federal court had extraterritorial jurisdiction to require the production of a prisoner at a hearing on the question of his ...