Opinions of the United 1994 Decisions States Court of Appeals for the Third Circuit
9-30-1994
Jones v. Lilly Precedential or Non-Precedential:
Docket 93-5680
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1994
Recommended Citation "Jones v. Lilly" (1994). 1994 Decisions. Paper 147. http://digitalcommons.law.villanova.edu/thirdcircuit_1994/147
This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 1994 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu. UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
____________
NOS. 93-5680 and 93-5727 ____________
MICHAEL JONES
v.
GERALD LILLY; WILFORD SMITH; CAPTAIN HAGLER; HOWARD L. BEYER
Louis Hagler, Appellant
Appeal from the United States District Court for the District of New Jersey No. 91-cv-05582 ____________
Argued June 7, 1994 Before: MANSMANN, ALITO, and ROSENN, Circuit Judges Opinion Filed September 30, 1994 ____________
DEBORATH T. PORITZ, Attorney General for New Jersey JOSEPH L. YANNOTTI, Assistant Attorney General MAMTA PATEL, Deputy Attorney General (Argued) R. J. Hughes Justice Complex CN 112 Trenton, NJ 08625 Attorneys for Appellant
LAWRENCE S. LUSTBERG, ESQUIRE JONATHAN ROMBERG, ESQUIRE (Argued) Crummy, Del Deo, Dolan, Griffinger & Vecchione One Riverfront Plaza Newark, New Jersey 07102-5497 Attorneys for Appellee ____________
OPINION OF THE COURT
ROSENN, Circuit Judge. This appeal raises a novel question whether a writ of
habeas corpus can be expanded in its use to produce a prison
paralegal inmate to assist a fellow prisoner in his civil rights
action for damages. The issue arises out of a § 1983 lawsuit
filed by Michael Jones, a prisoner at the New Jersey State Prison
in Trenton (TSP), against Captain Louis Hagler, a corrections
officer at TSP and the sole remaining defendant, in the United
States District Court for the District of New Jersey. Jones
alleged that he was sexually assaulted by his two cellmates and
that, in placing him in a multiple-lock housing unit reputed to
contain homosexual inmates who "prey[] on other inmates for sex,"
Hagler acted with deliberate indifference to plaintiff's personal
safety.
The parties filed cross-motions for summary judgment,
which the district court denied. Additionally, Jones filed a
motion seeking the appointment of counsel to prosecute his civil
suit, which the court also denied. The court concluded that, in
light of Jones' likelihood of success and the type and complexity
of the case, appointment of counsel was not warranted. Moreover,
based upon his prior submissions, the court determined that Jones
was capable of adequately representing himself.
Subsequently, after the court's refusal to appoint
counsel, Jones requested of the court that Thomas L. Hill, an
inmate paralegal at TSP, be allowed to assist him at trial. The
district court consented and ordered that a writ of habeas corpus
be directed to the warden of TSP. Hagler moved for a stay
pending appeal, which the district court denied. Hagler then filed a motion with this court for an emergency stay pending
appeal, which we granted. This court also directed the clerk to
appoint counsel for Jones for this appeal. Thereafter, Hagler
timely appealed the district court's order issuing a writ of
habeas corpus. We vacate the order authorizing the writ.
I.
Before we address the propriety of the district court's
order issuing a writ of habeas corpus to produce a prisoner who
will act as a lay assistant at a civil trial, we must first
decide whether we have jurisdiction to hear this appeal at this
stage of the district court proceedings. Hagler asserts that we
have jurisdiction under the collateral order doctrine. See Cohen
v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
Under the doctrine, an interlocutory order is
immediately appealable if it conclusively determines the matter
in issue, resolves an important issue completely separate from
the merits of the action, and is effectively unreviewable on
appeal from a final judgment. Powers v. Southland Corp., 4 F.3d
223, 231 (3d Cir. 1993) (citations omitted). If an order fails
to satisfy either of these conditions, it is not immediately
appealable. Id. Although the collateral order doctrine is a
narrow exception, see Yakowicz v. Pennsylvania, 683 F.2d 778, 783
n.10 (3d Cir. 1982), we are convinced that the three requirements
are met here.
First, the conclusiveness prong of the test is
satisfied because the district court issued its order in the
expectation that it will be the final word on the subject. See Praxis Properties Inc. v. Colonial Sav. Bank S.L.A., 947 F.2d 49,
55 (3d Cir. 1991). Next, whether a court has authority to issue
a habeas corpus writ so that a prisoner can provide lay
assistance at trial is an important issue completely divorced
from the merits of the underlying civil rights action.
Finally, without immediate review of the district
court's order, the legal and practical value of the right
asserted on appeal would be destroyed. Praxis, 947 F.2d at 58
(citation omitted). A review of the propriety of the writ after
final judgment cannot erase the burden, risk, and expense placed
upon the state of New Jersey (the State) for transporting and
maintaining secure custody over the paralegal prisoner. Although
courts have consistently rejected claims that the time and
expense of litigating a suit that may later be reversed are
sufficient to warrant an immediate appeal, Powers, 4 F.3d at 232,
the case sub judice is factually distinguishable. In addition to
the costs associated with transporting Hill to Jones' civil
trial, the State will have to bear the real risk, one that we
have unfortunately experienced in this circuit on more than one
occasion with other prisoners, that Hill will escape from its
custody during his temporary respite from prison. See Price v. Johnston, 159 F.2d 234, 237 (9th Cir. 1947) ("[T]emporary relief
from prison confinement is always an alluring prospect, and to
the hardened criminal the possibility of escape lurks in every
excursion beyond prison walls."), rev'd, 334 U.S. 266 (1948).
Moreover, the State's entitlement, in the absence of
exigent circumstances, to run its prisons efficiently and effectively without outside federal interference will have been
compromised, absent an immediate appeal. Thus, because in the
case sub judice "review postponed will, in effect, be review
denied," Zosky v. Boyer, 856 F.2d 554, 561 (3d Cir. 1988),
cert. denied, 488 U.S. 1042 (1989), we conclude that the district
court's order issuing a writ of habeas corpus is effectively
unreviewable on final appeal. Id. See also Lynk v. La Porte
Superior Court No. 2, 789 F.2d 554, 561 (7th Cir. 1986) (holding
that the grant or denial of a writ of habeas corpus ad
testificandum is appealable under the collateral order doctrine);
Garland v. Sullivan, 737 F.2d 1283, 1285 (3d Cir. 1984) (same),
aff'd sub nom. Pennsylvania Bureau of Correction v. United States
Marshals Service, 474 U.S. 34 (1985); Ballard v. Spradley, 557
F.2d 476, 479 (5th Cir. 1977) (same).
II.
Our inquiry does not end here. We must still ascertain
whether appellant has standing to make the argument that the
district court's issuance of a writ of habeas corpus is
reviewable as a collateral order, as a decision regarding
immediate appealability will have no effect on him inasmuch as he
will not have to bear personally the expense and risk inherent in
transporting Hill. A recent Supreme Court decision compels an
affirmative answer. See Hafer v. Melo, 112 S.Ct. 358 (1991). In discussing the distinction between personal and
official capacity suits, the Court explained that the real party
in interest in an official capacity suit is not the individual
but rather the entity of which the officer is an agent. Id. at 361. "A suit against a state official in her official capacity
therefore should be treated as a suit against the State." Id.
As set forth on the caption of Jones' complaint, Hagler also has
been sued in his official capacity. In actuality, then, the
State is also a defendant in this action and Hagler, as a named
defendant and as an agent of the State, may properly present its
arguments and concerns. Accordingly, we conclude that we have
jurisdiction to hear this appeal.
III.
We now turn to the merits of the appeal. Hagler
contends that a federal district court lacks the authority to
order state officials to produce a state inmate for the purpose
of providing paralegal assistance at a civil trial. Whether the
district court had authority to issue a writ of habeas corpus
directing the warden of TSP to transport Hill to assist Jones in
his civil suit is a legal question subject to plenary review.
See Tudor Dev. Group, v. United States Fidelity & Guar. Co., 968
F.2d 357, 359 (3d Cir. 1992). When review is plenary, no form of
appellate deference is acceptable. Salve Regina College v. Russell, 499 U.S. 225, 238 (1991).
We begin with the district court's statutory authority
to issue a writ of habeas corpus. District courts are authorized
to issue writs only in a number of limited circumstances. See 28
U.S.C. § 2241(c) (1994). Under this statute, a writ may extend
to a prisoner when "[i]t is necessary to bring him into court to
testify or for trial." Id. § 2241(c)(5). Under its terms, this
provision does not provide authority for a court to remove a prisoner so that he could provide assistance to another prisoner
at trial. Rather, the statute represents the codification of the
common law writs of habeas corpus ad testificandum and ad
prosequendum issued when necessary to produce a prisoner to
prosecute him or obtain his appearance as a witness. See United
States v. Hooker, 607 F.2d 286, 288 (9th Cir. 1979), cert.
denied, 445 U.S. 905 (1980). See also United States v. Larkin,
978 F.2d 964 (7th Cir. 1992), cert. denied, 113 S. Ct. 1323
(1993). Jones did not request the court to grant the writ for
the foregoing purposes. Thus, § 2241(c)(5) cannot confer upon
the district court the power to grant the instant writ.
Jones does not take issue with this conclusion.
Rather, he argues that the All Writs Act (the Act), 28 U.S.C. §
1651 (1994), "is a flexible and expansive grant of authority for
federal courts to issue modified versions of habeas writs not
specifically enumerated in § 2241." He asserts that his case
turns not on the district court's power to issue the writ of
habeas corpus, but on whether the courts may issue the writ "to
allow lay assistance."
The Act, not specifically relating to habeas corpus,
provides that "[t]he Supreme Court and all courts established by
Act of Congress may issue all writs necessary or appropriate in
aid of their respective jurisdictions and agreeable to the usages
and principles of law." The language of the Act contains a
number of fundamental limitations on its scope. First, the writ
issued must aid the court in the exercise of its jurisdiction.
See In Re Grand Jury Proceedings, 654 F.2d 268, 276 (3d Cir.), cert. denied, 454 U.S. 1098 (1981). Additionally, the means
selected must be analogous to a common law writ. Id.
Jones contends that the first requirement is met
inasmuch as the district court possessed jurisdiction over Jones'
underlying civil rights claims and the court's order granting the
habeas writ will aid the court by allowing it to manage the case
to a just conclusion. As mentioned, the Act authorizes writs to
be issued only when necessary (or appropriate) to the
preservation or exercise of a court's jurisdiction. Rosen v.
Cascade Intern., Inc., 21 F.3d 1520, 1527 n.13 (11th Cir. 1994)
(citation omitted). The cases appear to be elusive in
establishing a rule of law as to when the writ is "necessary or
appropriate in aid" of a court's jurisdiction. Issuance of the
writ in the present case would appear to have absolutely no
effect on the district court's jurisdiction to hear and decide
the underlying civil rights claims. The court's jurisdiction
over those claims is independent of the existence of a writ.
Moreover, the absence of a writ will not destroy the court's
jurisdiction. Thus, as the writ is not indispensable to the
court's disposition of Jones' claims, it facially cannot be
deemed to be necessary, or even appropriate, and therefore the
writ is not authorized under the Act. Id. Contrary to Jones' assertion, In Re Grand Jury does not
compel a different conclusion. In In Re Grand Jury we explained
that the term "necessary" does not have to be interpreted in a
narrow or rigorous manner. In Re Grand Jury, 654 F.2d at 276. Rather, a court may avail itself of the Act and issue a writ where helpful "to achieve the ends of justice entrusted to it."
Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269,
273 (1942)).
Although interpreting the term "necessary" in a less
rigorous fashion, In Re Grand Jury nonetheless required that the
writ issued must actually aid the court in the performance of its
duties. In the present case, however, the presence of Hill at
trial does not seem to bestow any benefit on the district court.
The principal beneficiary will, of course, be Jones.
It appears, however, that this distinction is illusory
in light of United States v. New York Telephone Co., 434 U.S. 159
(1977). Although that case did not involve a writ of habeas
corpus, the court directed a third party, the New York Telephone
Company (the Company), to permit the FBI to install and use pen
registers with respect to two telephones and furnish the FBI with
information and technical assistance necessary to employ the
devices. In response to the Company's challenge to the power of
a court to authorize the foregoing orders, the Supreme Court held
that the order compelling the Company to provide assistance was
clearly authorized by the All Writs Act. Justice Byron White,
author of the majority opinion, dismissed, as specious, the
dissent's distinction under the Act "between orders in aid of a
court's own duties and jurisdiction and orders designed to better
enable a party to effectuate his rights and duties." Id. at 175 n.23. He explained that "[c]ourts normally exercise their
jurisdiction only in order to protect the legal rights of
parties." Id. Thus, Justice White's construction of the phrase "in aid of" a court's jurisdiction does not appear to preclude
issuance of the instant habeas corpus writ.
Therefore, we turn to the All Writs Act again to
determine whether the present writ also is "agreeable to the
usages and principles of law," as that phrase is used in the Act.
Although the Supreme Court recognized that courts are not
"confined to the precise forms of that writ in vogue at the
common law," Price v. Johnston, 334 U.S. 266, 282 (1948), this in
no way implies that courts have the power to fashion any writ
they deem desirable. Rather, courts must "look to the usages and
principles which have attached themselves to the writ of habeas
corpus down through the years to the present time." Id.
Historically, under the common law and prior thereto
under the English judicial system, the purpose of the writ has
been to "produce the body of a person before a court for whatever
purpose might be essential to the proper disposition of a cause."
Id. at 283. For example, over time, the writ has provided a
"swift and imperative remedy" in cases where a person has claimed
that his or her personal liberty is being illegally restrained.
Id. Thus, to the extent that courts have to deal with claims for
various types of illegal restraint not specifically provided for
in a statute, a variation or modification of an established writ
is in order. For this reason, the Court in Price held that the
Act confers authority upon courts of appeal to order a prisoner
to be brought before it to argue his own appeal in a case
involving the prisoner's life or liberty. Id. at 278. Through
the centuries of its use, during colonial times and since the founding of our Republic, the writ has been "the fundamental
instrument for safeguarding individual freedom against arbitrary
and lawless state action." Harris v. Nelson, 394 U.S. 286, 290-
91 (1969). The usages and principles which have attached to the
writ down through the ages have their focus on illegal detention
and confinement of persons and the correction of miscarriages of
justice within their reach. Id. at 291.
The writ in issue in this case, however, is not
directly or indirectly related to the usages or principles of law
of any of the writs of habeas corpus.1 It is neither reasonable
nor practical to use a writ historically associated with the
fight for human freedom to provide a plaintiff, especially in a
civil proceeding, with a lawfully confined prisoner for
assistance. In short, Jones points to no authority, principle,
or interest of justice, nor have we found any, that would
convince us to expand the usage of a habeas writ to produce a
prisoner so that he can aid a fellow prisoner in prosecuting a
civil suit. Thus, the writ in issue cannot be said to be
consistent with typical habeas writs and is therefore not
"agreeable to the usages and principles of law." Permitting such
an expanded usage of the writ would inevitably encourage the
1 . The Court in Price noted that Blackstone described the common law versions of the habeas corpus writ as habeas corpus ad respondendum, ad satisfaciendum, ad proseqeundum, testificandum, deliberandum, ad faciendum et recipiendum , and ad subjiciendum. Price, 334 U.S. at 281 n.9. Each of these writs has as its purpose the production of a prisoner in court with respect to proceedings dealing with the prisoner's personal detention and restraint. usage of "jailhouse" lawyers in the courts, elevate prison costs
in the transportation and guarding of prisoners to, from, and in
the courthouse, and seriously increase the risks associated with
having prisoners outside prison walls.
Furthermore, the legal issues raised in the underlying
litigation are not extraordinary and ordinarily prisoners have
other reasonable options available. First, they could proceed
pro se. Second, they might, upon a showing of special
circumstances, even in a civil case, request the trial court to
appoint counsel for themselves. See 28 U.S.C. § 1915(d) (1966);
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984). The
plaintiff in this case did move for the appointment of counsel,
but after analyzing the complexity of the case and the likelihood
of success, the district court found that appointment of counsel
was not warranted. Finally, there is the possibility of
obtaining private counsel on a pro bono or contingent fee basis.
IV.
Accordingly, as the writ issued by the district court
is not consistent with the usages and purposes behind the
variants of the habeas writ, we hold that a federal court is not
empowered, pursuant to the All Writs Act, to order state
officials to produce a state inmate for the purpose of providing
assistance at a civil trial.
Therefore, the order of the district court of November
3, 1993, awarding the writ of habeas corpus and the subsidiary
order of November 15, 1993, granting plaintiff's motion that
inmate Thomas Hall assist him at the trial will be vacated and the case remanded to the district court for further proceedings
consistent with this opinion.
Each side to bear their own costs.