United States District Court, D. Colorado
FRANKY L. SESSION, Plaintiff,
v.
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity, Defendants.
ORDER
Philip
A. Brimmer Judge
This
matter comes before the Court on Plaintiff's Motion for
Writs of Habeas Corpus Ad Testificandum [Docket No. 377]. In
his motion, plaintiff requests a writ of habeas corpus
pursuant to 28 U.S.C. § 2241(c)(5) directing the
Colorado Department of Corrections (“CDOC”) to
transport plaintiff and another prisoner, Kenneth Walker, to
Denver for trial. Docket No. 377 at 1-2. The trial in this
case is set to begin in January 28, 2019. Docket No. 359.
Section
2241(c)(5) of Title 28 provides that the “writ of
habeas corpus shall not extend to a prisoner unless . . .
[i]t is necessary to bring him into court to testify or for
trial.” “The decision to issue a writ of habeas
corpus ad testificandum to permit a prisoner's presence
is committed to the sound discretion of the district
court.” Hawkins v. Maynard, 89 F.3d 850, 1996
WL 335234, at *1 (10th Cir. June 18, 1996) (unpublished table
decision). In exercising that discretion, a court “must
weigh the prisoner's need to be present against concerns
of expense, security, logistics and docket control”
(the “Muhammad factors”). Id.
(citing Muhammad v. Warden, Baltimore City Jail, 849
F.2d 107, 111-12 (4th Cir. 1988)). These factors apply
regardless of whether the prisoner is a litigant or a
nonparty witness. Id.
Plaintiff
argues that his presence at trial “is necessary for
[him] to have a full and fair opportunity to prove his
claims.” Docket No. 377 at 3. Specifically, he states
that he will testify as to his repeated requests to leave
Unit 4D, his willingness to move to Unit 4A, and the fact
that he did not receive weekly reviews of his housing
placement. Id. Plaintiff avers that the expenses,
security concerns, and logistical issues associated with his
transport will be minimal: he is incarcerated only two hours
from Denver, his “criminal charges are not violent in
nature, and the CDOC is experienced in regularly transporting
prisoners for a multitude of reasons.” Id. at
4. Last, plaintiff contends that his “live testimony is
best suited to preventing any disruption to the Court's
docket.” Id. (quoting Kocsis v.
Kendall, 2016 WL 7852315, at *1 (D. Kan. June 2, 2016)).
Defendants
respond that, although they do not oppose plaintiff's
request, they are concerned about “the potential for
trial disruptions” given plaintiff's statements at
the August 9, 2018 trial preparation conference that his
medical issues would make it difficult for him to appear in
court. Docket No. 381 at 6. At that hearing, plaintiff
indicated, for example, that he is physically bent over with
his chest touching his kneecaps, requires significant
assistance in performing basic tasks, needs to take regular
breaks to use the restroom due to his medical issues, and
would be able to remain in court for no more than three
hours. Plaintiff also stated that he was “not well
enough to travel” and would prefer to testify via
videoconference from his correctional facility in the event
pro bono counsel was appointed.
Plaintiff's
motion does not acknowledge that in August plaintiff stated
that he could not travel due to health reasons and preferred
to testify via video teleconference. Plaintiff's motion
also does not explain what accommodations plaintiff would
require at trial, how long he could remain in the courtroom
on any given day, and whether plaintiff requests to be
present during all parts of the trial.
While
plaintiff is entitled to a fair opportunity to prove his
claims, plaintiff provides no explanation for why he cannot
do so through videoconferencing. In light of his previous
statements to the Court and the failure of his motion to
address such concerns, the Court will deny the motion to writ
the plaintiff for trial. Instead, plaintiff is encouraged to
explore the means for him to appear and monitor the trial via
teleconference.
Plaintiff
also requests a writ of habeas corpus directing the CDOC to
make DOC inmate Kenneth Walker available for trial. Docket
No. 377 at 4. In support of his request, plaintiff states
that Mr. Walker's “testimony will directly
contradict Defendants and Dr. Gafford's testimony,
corroborate Mr. Session's testimony, and provide direct
evidence of Defendants' punitive intent.”
Id. at 5. Specifically, Mr. Walker is expected to
testify testify “about his observations of how
frequently Defendants and Dr. Gafford met with Mr. Session,
statements made by Defendants to Mr. Session that suggest
Defendants were keeping Mr. Session in Unit 4D because of his
charges, and interactions between Plaintiff and Mr. Walker in
which Plaintiff stated he wanted to be moved out of Unit
4D.” Id. at 4-5. Defendants oppose
plaintiff's request for a writ of habeas corpus as to Mr.
Walker. Docket No. 381 at 2. They argue that plaintiff did
not list Mr. Walker as a witness in the final pretrial order
and has not moved to amend the order pursuant to Fed.R.Civ.P.
16(e). Id. at 3.
Given
the proximity to trial, the Court will construe
plaintiff's motion for a writ of habeas corpus concerning
Mr. Walker as a motion to amend the final pretrial order
under Rule 16(e).[1] The “pretrial order measures the
dimensions of the lawsuit, both in the trial court and on
appeal, ” Youren v. Tintic Sch. Dist., 343
F.3d 1296, 1304 (10th Cir. 2003) (internal quotation marks
omitted), and may be modified “only to prevent manifest
injustice.” Fed.R.Civ.P. 16(e). The party moving to
amend the pretrial order bears the burden of showing that
manifest injustice would result if amendment is not
permitted. Davey v. Lockheed Martin Corp., 301 F.3d
1204, 1208 (10th Cir. 2002). In evaluating whether the party
has made this showing, the Court considers the following
factors: “(1) prejudice or surprise to the party
opposing trial of the issue; (2) the ability of that party to
cure any prejudice; (3) disruption to the orderly and
efficient trial of the case by inclusion of the new issue;
and (4) bad faith by the party seeking to modify the
order.” Koch v. Koch Indus., Inc., 203 F.3d
1202, 1222 (10th Cir. 2000).
Defendants
contend that these factors weigh against amendment because
(1) plaintiff has not provided any explanation for failing to
list Mr. Walker as a witness earlier in the case, and (2)
defendants will have difficulty obtaining discovery of Mr.
Walker before trial. Docket No. 381 at 5. However, on June 4,
2018, the date of the final pretrial order, Docket No. 300,
plaintiff was still proceeding pro se in this
matter. He was not appointed pro bono counsel until August
21, 2018. Docket No. 352. Since that time, counsel has worked
diligently to supplement the evidence and prepare this case
for trial. See, e.g., Docket No. 364. On November
13, 2018, plaintiff's counsel informed counsel for
defendants that plaintiff intended to compel Mr. Walker's
attendance at trial. Docket No. 377 at 6. Given these facts,
the Court finds no evidence that plaintiff has acted in bad
faith by seeking to modify the final pretrial order at this
juncture.
Regarding
the issue of prejudice, the Court agrees that defendants
should have an opportunity to seek discovery from Mr. Walker
before trial. However, there is sufficient opportunity for
them to do so. Even with the procedural requirements
applicable to prisoners, defendants indicate that they would
be able to depose Mr. Walker before the presently scheduled
trial date. See Docket 381 at 5. This time frame is
not unreasonable, given the nature of Mr. Walker's
testimony, and defendants provide no specific argument as to
why conducting the deposition one month before trial would
unduly hamper their ability to defend against plaintiff's
claims.
In
summary, the four factors listed above weigh in favor of
allowing plaintiff to amend the final pretrial order to add
Mr. Walker as a witness. To the extent that plaintiff intends
to present Mr. Walker's testimony at trial, defendants
are granted leave to depose Mr. Walker, consistent with
Fed.R.Civ.P. 26(b)(1) and (2). See Fed. R. Civ. P.
30(a)(2)(B) (providing that the court “must grant leave
[to depose a person confined in prison] to the extent
consistent with Rule 26(b)(1) and (2)).
The
Muhammad factors further support the issuance of a
writ of habeas corpus so that Mr. Walker can testify in
person at trial. Mr. Walker is presently incarcerated only
two hours from Denver, the CDOC regularly transports
prisoners from that distance, and defendants have not
identified any security, logistical, or other ...