Maurer v. Pitchess, CV 79-3814-IH(M).

• Decision Date: 21 December 1981
• Docket Number: No. CV 79-3814-IH(M).,CV 79-3814-IH(M).
• Citation: 530 F. Supp. 77
• Parties: Martin Karl MAURER, Plaintiff, v. Peter J. PITCHESS, et al., Individually and as Members of Los Angeles County Sheriffs Department, Defendants.
• Court: U.S. District Court — Central District of California

530 F. Supp. 77

Martin Karl MAURER, Plaintiff, v. Peter J. PITCHESS, et al., Individually and as Members of Los Angeles County Sheriffs Department, Defendants.

No. CV 79-3814-IH(M).

United States District Court, C. D. California.

December 21, 1981.

Martin Karl Maurer, in pro. per.

John H. Larson, County Counsel, John W. McCauley, Deputy County Counsel, Los Angeles, Cal., for defendants.

MEMORANDUM AND ORDER RE PLAINTIFF'S APPLICATION FOR WRIT OF HABEAS CORPUS AD TESTIFICANDUM

IRVING HILL, District Judge.

The plaintiff, a state prisoner, has applied to this court for a writ of habeas corpus ad testificandum to secure the plaintiff's presence at the trial of his above-entitled civil action. This court finds that it has the discretionary power to issue the writ. However, in the exercise of its discretion, the court denies the plaintiff's application for the writ.

The plaintiff is a California state prisoner who is now incarcerated in Folsom state prison in Represa, California, serving a life term for a conviction of first degree murder. The plaintiff's pro se complaint in the above-entitled action states an action under 42 U.S.C. §§ 1983 and 1985(3). The first amended complaint essentially alleges that certain named Deputy Sheriffs employed by the Los Angeles County Sheriff's Department unlawfully searched the plaintiff's home, seized and/or destroyed the plaintiff's property, and assaulted and arrested the plaintiff on September 2, 1976. The complaint requests compensatory and punitive damages, a declaratory judgment of the illegality of the arrest of September 2, 1976, and the expungement of all records relating to the arrest.

The first amended complaint in this action originally named forty defendants. This court has, by a judgment entered on October 20, 1981, now dismissed the action as against thirty of these defendants. The action as against the remaining ten defendants is set for trial on December 15, 1981.

The plaintiff has now moved the court to issue a writ of habeas corpus ad testificandum to secure the plaintiff's presence in this court for the trial of the action. The individual defendants, the California Attorney General, and the United States Attorney for the Central District of California have all filed responses opposing the issuance of the writ.

POWER TO ISSUE WRIT

Habeas corpus is a generic term, embracing a variety of writs known to the common law. Included among these are habeas corpus ad subjiciendum (the "Great Writ" used to inquire into the cause of a prisoner's restraint), habeas corpus ad prosequendum (used to bring a prisoner to a jurisdiction wherein he may be criminally prosecuted), and habeas corpus ad testificandum (used to bring a prisoner to give evidence before a court). The prisoner plaintiff here seeks a writ of habeas corpus ad testificandum to bring him to this court to prosecute his pro se civil action. The power of the district court to issue a writ of habeas corpus ad testificandum is expressly conferred by 28 U.S.C. § 2241(c)(5). Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977).

The plaintiff is a prisoner in Folsom prison located in Represa, California. The prison is located outside the geographic boundaries of the Central District of California. The State of California, through its Attorney General, contends that this court does not have the power to issue a writ of habeas corpus ad testificandum compelling the appearance of a prisoner being held outside the geographic boundaries of the Central District. This contention is based upon the language of the habeas corpus statute which states in relevant part, that "writs of habeas corpus may be granted by ... the district courts and any circuit judge within their respective jurisdictions". 28 U.S.C. § 2241(a). (Emphasis added).

The power of the district court to issue an extra-territorial writ of habeas corpus ad testificandum has apparently never been settled in this circuit. An analysis of this question must start with a consideration of Carbo v. United States, 364 U.S. 611, 81 S.Ct. 338, 5 L.Ed.2d 329 (1961). Carbo held that a federal district court in California had the power under 28 U.S.C. § 2241 to issue a writ of habeas corpus ad prosequendum ordering a New York City prison official to deliver a state prisoner incarcerated in a New York City prison to California for prosecution in a California federal district court. Based upon a detailed analysis of the statutory history of the habeas corpus statute, the Supreme Court found that Congress had specifically intended to apply the territorial limitation found in 28 U.S.C. § 2241(a) to the issuance of the writ of habeas corpus ad subjiciendum, but not upon the writ of habeas corpus ad prosequendum. In enacting the statutes which are the historical antecedents of 28 U.S.C. § 2241(a), "... the Congress had continual concern for the Great Writ — habeas corpus ad subjiciendum. Exclusively to it did it give attention, and only upon its issuance did it impose a limitation". Carbo, supra, p. 617, 81 S.Ct. at 342. The Carbo court then found that the other species of the writ, including habeas corpus ad prosequendum, continued to derive their authority from other antecedent statutes which were never territorially limited. Id. Although the habeas corpus statute has been revised a number of times since its enactment, the Carbo court held that there was never any legislative intent to change the existing law with respect to the geographic limitation upon the habeas corpus power. Id., p. 619, 81 S.Ct. at 343.

The Supreme Court in Carbo expressly declined to decide the question whether the writ of habeas corpus ad testificandum was subject to the territorial restriction of 28 U.S.C. § 2241(a). Id., p. 618, n. 13, 81 S.Ct. at 342. The Carbo analysis of the statutory history of the habeas power is, however, equally applicable to the writ of habeas corpus ad testificandum. The geographic limitation of the habeas power was specifically intended to apply only to the "Great Writ" and not to habeas corpus ad prosequendum. The power of the district court to issue the writ of habeas corpus ad prosequendum is not geographically restricted. The statutory antecedents for habeas corpus ad prosequendum and habeas corpus ad testificandum are exactly the same. Id., p. 617, 81 S.Ct. at 342. Habeas corpus ad testificandum is therefore not territorially limited by 28 U.S.C. Sec. 2241(a).

Circuit courts in three other circuits have held that the power of the district court to issue a writ of habeas corpus ad testificandum is not territorially limited by 28 U.S.C. Sec. 2241(a). Itel Capital Corp. v. Dennis Mining Supply and Equipment, Inc., 651 F.2d 405, 406-07 (5th Cir. Unit B 1981); Stone v. Morris, 546 F.2d 730, 737 (7th Cir. 1976); Word v. State of North Carolina, 406 F.2d 352, 356 n.5 (4th Cir. 1969) (dictum).¹

Even if the geographical restrictions of 28 U.S.C. Sec. 2241(a) were found to apply to habeas corpus ad testificandum, that statute would confer the power to compel the attendance of the plaintiff in this court on the facts of this case:

"Read literally, the language of Sec. 2241(a) requires nothing more than that the court issuing the writ have jurisdiction over the custodian. So long as the custodian can be reached by service of process, the court can issue a writ `within its jurisdiction' requiring that the prisoner be brought before the court ...." Braden v. 30th Judicial Circuit Court of Kentucky, 410 U.S. 484, 495, 93 S.Ct. 1123, 1129, 35 L.Ed.2d 443 (1973).

"All process other than a subpoena may be served anywhere within the territorial limits of the state in which the district court is held ...." Rule 4(f), F.R.Civ.P. The plaintiff's custodian, the Folsom prison warden, is clearly subject to the process of this court pursuant to Rule 4(f), F.R.Civ.P.²

This court concludes that 28 U.S.C. Sec. 2241(a) does not prevent this court from issuing a writ of habeas corpus ad testificandum ordering the warden of Folsom prison to produce the plaintiff for trial.

WHETHER WRIT SHOULD BE ISSUED

Having determined that the court has the power to issue the writ, the court must determine whether it should exercise that power in this case. It is the established law of this circuit that a plaintiff in a Civil Rights action who is confined in a state prison is not entitled, as a matter of right, to appear personally at a hearing in the action. Armstrong v. Rushing, 352 F.2d 836, 837 (9th Cir. 1965); Potter v. McCall, 433 F.2d 1087, 1088 (9th Cir. 1970); McKinney v. Boyle, 447 F.2d 1091, 1094 (9th Cir. 1971).

"Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, including the right given by 28 U.S.C. Sec. 1654 to all parties in the courts of the United States to plead and conduct their own cases personally." McKinney, supra, p. 1094 citing Price v. Johnston, 334 U.S. 266, 285-286, 68 S.Ct. 1049, 1059-1060, 92 L.Ed. 1356 (1948).

The determination whether to issue a writ of habeas corpus ad testificandum to allow a prisoner plaintiff to participate in a court hearing rests within the sound discretion of the district court. Price v. Johnston, supra, p. 284, 68 S.Ct. at 1059; McKinney v. Boyle, supra, p. 1094; Ballard v. Spradley, supra, p. 480; Holt v. Pitts, 619 F.2d 558, 561 (6th Cir. 1980). In Price v. Johnston, the Supreme Court discussed the factors which an appellate court should consider when deciding whether to issue a writ to allow a prisoner to argue a case personally:

"This discretion is to be exercised with the best interests of both the prisoner and the government in mind. If it is apparent that the request of the prisoner to argue personally reflects something more than a mere desire to be freed temporarily from the confines of the prison, that he is capable of conducting an intelligent and responsible argument and that his presence in the courtroom may be secured without undue inconvenience or danger, the court

...