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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CHRISTOPHER SMITH, Case No. 3:21-cv-05636-TMC-BAT 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 MOTION FOR ISSUANCE OF A WRIT OF v. HABEAS CORPUS AD TESTIFICANDUM 10 STATE OF WASHINGTON; 11 WASHINGTON STATE DEPARTMENT 12 OF CORRECTIONS; ROBIN SMITH; 13 JULIA BARNETT; JACK WARNER, 14 Defendant. 15
16 Before the Court is Plaintiff Christopher Smith’s motion for issuance of a Writ of Habeas 17 Corpus Ad Testificandum (“writ ad testificandum”) under 28 U.S.C. § 1651 and § 2241. Dkt. 64. 18 Smith’s motion asks the Court to order the Washington State Department of Corrections 19 (“DOC”) to bring Smith before the Court for his civil trial scheduled for April 29, 2024. Upon 20 reviewing the parties’ briefing and relevant law, the Court GRANTS Plaintiff’s motion. 21 I. BACKGROUND 22 Smith is in the custody of Washington State and currently incarcerated at the Stafford 23 Creek Corrections Center in Aberdeen, Washington (“Stafford Creek”). Dkt. 64 at 3. Smith filed 24 1 this case in Thurston County Superior Court in April 2021, alleging federal and state law claims 2 for pain and suffering caused by, among other things, Defendants’ withholding of necessary 3 medical care and retaliation for Smith’s reporting of grievances. See Dkt. 1-2. Defendants
4 removed the lawsuit to this Court. Dkt. 1. After approximately two years of pretrial proceedings 5 in front of the Honorable Brian A. Tsuchida, United States Magistrate Judge, this Court adopted 6 Judge Tsuchida’s Report and Recommendation granting the parties’ cross-motions for summary 7 judgment in part and denying them in part. See Dkt. 53, 57. The Court set the case for a five-day 8 jury trial beginning April 29, 2024. Dkt. 63. 9 On January 30, 2024, Smith moved for issuance of a Writ of Habeas Corpus Ad 10 Testificandum ordering DOC to transport him to attend trial and testify in person. See Dkt. 64. 11 Defendants responded that DOC does not “substantively” object to Smith’s motion but objects to 12 bearing the cost of facilitating his transportation and attendance at trial. See Dkt. 65. In reply,
13 Smith maintained that his attendance at trial is in the interest of justice so that the jury can assess 14 his credibility and observe the physical harm he has endured. Dkt. 66 at 1–2. 15 II. LEGAL STANDARD Federal courts may issue a writ of habeas corpus when necessary to bring a state prisoner 16 “into court to testify or for trial.” See 28 U.S.C. §1651(a); 28 U.S.C. §2241(c)(5). While 17 imprisonment suspends a “plaintiff’s usual right to be personally present at judicial proceedings 18 brought by himself or on his behalf,” Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), a 19 district court has discretion to issue a writ of habeas corpus ad testificandum so that the prisoner 20 can testify in-person at trial. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 21 1983) (“The district court’s power to issue a writ of habeas corpus ad testificandum to secure the 22 testimony of a state prisoner witness is beyond dispute.”) (citing Ballard v. Spradley, 557 F.2d 23 476, 480 (5th Cir. 1977)). 24 1 District courts in the Ninth Circuit weigh the following factors when determining whether 2 to issue a writ ad testificandum (the “Ballard factors”): 3 (1) Whether the prisoner’s presence will substantially further resolution of the case;
4 (2) the security risks presented by the prisoner’s presence; 5 (3) the expense of the prisoner’s transportation and safekeeping; and 6 (4) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. 7 See Wiggins, 717 F.2d at 468 n.1 (restating Ballard, 557 F.2d at 480). 8 The cost of compliance can be allocated in several ways, including sharing of costs 9 between the United States and the state where the prisoner is in custody, imposing the full cost 10 on the United States, or imposing the full cost on the state. See id. at 469. Moreover, other 11 district courts in the Ninth Circuit have found that once a court determines “the prisoner’s 12 presence is essential and not outweighed by security concerns, the possibility that a lack of 13 transportation funds or personnel will develop is not a justification for refusing to issue the writ.” 14 Greene v. Prunty, 938 F. Supp. 637, 640 (S.D. Cal. 1996) (applying Ballard). 15 III. DISCUSSION 16 Smith’s motion requests that DOC facilitate his secure transportation from Stafford Creek 17 for attendance at trial beginning on April 29, 2024, and for DOC agents to ensure his return to 18 Stafford Creek at the end of each trial day. Dkt. 64 at 3. Defendants state they do not 19 “substantively” object to Smith’s motion but oppose only because “the Department should not 20 bear the costs associated with Plaintiffs [sic] personal appearance in this trial,” arguing “there is 21 no authorization which provides for the expenditure of funds related to an indigent party’s 22 transportation.” See Dkt. 65 at 2. 23 This argument is unpersuasive. Under binding Ninth Circuit precedent, it is within the 24 1 Court’s power to issue a writ securing Smith’s attendance at his trial, Wiggins, 717 F.2d at 468 2 n.1, and within the Court’s discretion to allocate the cost “to transport, guard, and pay all 3 expenses associated with securing [his] presence” to Washington State and DOC, see id. at 467,
4 469. Additionally, the Court agrees with other districts in this circuit that a claimed “lack” of 5 transportation funds does not justify refusal to issue the writ. See Greene, 938 F. Supp. at 640. 6 The Court’s analysis is guided instead by weighing the Ballard factors. 7 First, the Court finds that Smith’s presence at trial will substantially further resolution of 8 the case. Wiggins, 717 F.2d at 468 n.1. This case stems from Smith’s allegations of inadequate 9 medical care while at Stafford Creek, see Dkt. 1-2, and he has already prevailed on his 10 negligence claims on summary judgment, see Dkt. 53, 57. At trial, the jury will determine 11 Defendants’ liability on Smith’s remaining claims and the amount of damages necessary to 12 compensate him for harm caused by Defendants’ negligence (or other claims on which Smith
13 might succeed). Smith contends that this harm includes “noticeable loss of muscle mass in his 14 left leg due to the wasting away and atrophy of those tissues,” resulting “in Smith’s reliance on a 15 wheelchair for mobility,” and that “there is visible discoloration and ecchymosis [bruising] 16 observable on both of his legs.” Dkt. 66 at 2. Smith’s presence at trial will allow him to testify 17 live and for the jury to observe his physical condition, which is relevant to his claims of pain, 18 suffering, and physical degradation. Defendants do not dispute the substantive benefit of Smith’s 19 presence, see Dkt. 65 at 2, and the Court finds his attendance at trial will substantially assist the 20 jury’s assessment of his claims. 21 Second, the Court finds that there is no heightened security risk for transporting Smith 22 beyond what is typical for a state prisoner. Defendants do not raise any objection based on a
23 security risk he would pose to the Court or community. See id. 24 Third, the Court finds that the cost of transporting and safekeeping Smith is acceptable.
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4 5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON AT TACOMA 7 CHRISTOPHER SMITH, Case No. 3:21-cv-05636-TMC-BAT 8 Plaintiff, ORDER GRANTING PLAINTIFF’S 9 MOTION FOR ISSUANCE OF A WRIT OF v. HABEAS CORPUS AD TESTIFICANDUM 10 STATE OF WASHINGTON; 11 WASHINGTON STATE DEPARTMENT 12 OF CORRECTIONS; ROBIN SMITH; 13 JULIA BARNETT; JACK WARNER, 14 Defendant. 15
16 Before the Court is Plaintiff Christopher Smith’s motion for issuance of a Writ of Habeas 17 Corpus Ad Testificandum (“writ ad testificandum”) under 28 U.S.C. § 1651 and § 2241. Dkt. 64. 18 Smith’s motion asks the Court to order the Washington State Department of Corrections 19 (“DOC”) to bring Smith before the Court for his civil trial scheduled for April 29, 2024. Upon 20 reviewing the parties’ briefing and relevant law, the Court GRANTS Plaintiff’s motion. 21 I. BACKGROUND 22 Smith is in the custody of Washington State and currently incarcerated at the Stafford 23 Creek Corrections Center in Aberdeen, Washington (“Stafford Creek”). Dkt. 64 at 3. Smith filed 24 1 this case in Thurston County Superior Court in April 2021, alleging federal and state law claims 2 for pain and suffering caused by, among other things, Defendants’ withholding of necessary 3 medical care and retaliation for Smith’s reporting of grievances. See Dkt. 1-2. Defendants
4 removed the lawsuit to this Court. Dkt. 1. After approximately two years of pretrial proceedings 5 in front of the Honorable Brian A. Tsuchida, United States Magistrate Judge, this Court adopted 6 Judge Tsuchida’s Report and Recommendation granting the parties’ cross-motions for summary 7 judgment in part and denying them in part. See Dkt. 53, 57. The Court set the case for a five-day 8 jury trial beginning April 29, 2024. Dkt. 63. 9 On January 30, 2024, Smith moved for issuance of a Writ of Habeas Corpus Ad 10 Testificandum ordering DOC to transport him to attend trial and testify in person. See Dkt. 64. 11 Defendants responded that DOC does not “substantively” object to Smith’s motion but objects to 12 bearing the cost of facilitating his transportation and attendance at trial. See Dkt. 65. In reply,
13 Smith maintained that his attendance at trial is in the interest of justice so that the jury can assess 14 his credibility and observe the physical harm he has endured. Dkt. 66 at 1–2. 15 II. LEGAL STANDARD Federal courts may issue a writ of habeas corpus when necessary to bring a state prisoner 16 “into court to testify or for trial.” See 28 U.S.C. §1651(a); 28 U.S.C. §2241(c)(5). While 17 imprisonment suspends a “plaintiff’s usual right to be personally present at judicial proceedings 18 brought by himself or on his behalf,” Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir. 1989), a 19 district court has discretion to issue a writ of habeas corpus ad testificandum so that the prisoner 20 can testify in-person at trial. Wiggins v. County of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 21 1983) (“The district court’s power to issue a writ of habeas corpus ad testificandum to secure the 22 testimony of a state prisoner witness is beyond dispute.”) (citing Ballard v. Spradley, 557 F.2d 23 476, 480 (5th Cir. 1977)). 24 1 District courts in the Ninth Circuit weigh the following factors when determining whether 2 to issue a writ ad testificandum (the “Ballard factors”): 3 (1) Whether the prisoner’s presence will substantially further resolution of the case;
4 (2) the security risks presented by the prisoner’s presence; 5 (3) the expense of the prisoner’s transportation and safekeeping; and 6 (4) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. 7 See Wiggins, 717 F.2d at 468 n.1 (restating Ballard, 557 F.2d at 480). 8 The cost of compliance can be allocated in several ways, including sharing of costs 9 between the United States and the state where the prisoner is in custody, imposing the full cost 10 on the United States, or imposing the full cost on the state. See id. at 469. Moreover, other 11 district courts in the Ninth Circuit have found that once a court determines “the prisoner’s 12 presence is essential and not outweighed by security concerns, the possibility that a lack of 13 transportation funds or personnel will develop is not a justification for refusing to issue the writ.” 14 Greene v. Prunty, 938 F. Supp. 637, 640 (S.D. Cal. 1996) (applying Ballard). 15 III. DISCUSSION 16 Smith’s motion requests that DOC facilitate his secure transportation from Stafford Creek 17 for attendance at trial beginning on April 29, 2024, and for DOC agents to ensure his return to 18 Stafford Creek at the end of each trial day. Dkt. 64 at 3. Defendants state they do not 19 “substantively” object to Smith’s motion but oppose only because “the Department should not 20 bear the costs associated with Plaintiffs [sic] personal appearance in this trial,” arguing “there is 21 no authorization which provides for the expenditure of funds related to an indigent party’s 22 transportation.” See Dkt. 65 at 2. 23 This argument is unpersuasive. Under binding Ninth Circuit precedent, it is within the 24 1 Court’s power to issue a writ securing Smith’s attendance at his trial, Wiggins, 717 F.2d at 468 2 n.1, and within the Court’s discretion to allocate the cost “to transport, guard, and pay all 3 expenses associated with securing [his] presence” to Washington State and DOC, see id. at 467,
4 469. Additionally, the Court agrees with other districts in this circuit that a claimed “lack” of 5 transportation funds does not justify refusal to issue the writ. See Greene, 938 F. Supp. at 640. 6 The Court’s analysis is guided instead by weighing the Ballard factors. 7 First, the Court finds that Smith’s presence at trial will substantially further resolution of 8 the case. Wiggins, 717 F.2d at 468 n.1. This case stems from Smith’s allegations of inadequate 9 medical care while at Stafford Creek, see Dkt. 1-2, and he has already prevailed on his 10 negligence claims on summary judgment, see Dkt. 53, 57. At trial, the jury will determine 11 Defendants’ liability on Smith’s remaining claims and the amount of damages necessary to 12 compensate him for harm caused by Defendants’ negligence (or other claims on which Smith
13 might succeed). Smith contends that this harm includes “noticeable loss of muscle mass in his 14 left leg due to the wasting away and atrophy of those tissues,” resulting “in Smith’s reliance on a 15 wheelchair for mobility,” and that “there is visible discoloration and ecchymosis [bruising] 16 observable on both of his legs.” Dkt. 66 at 2. Smith’s presence at trial will allow him to testify 17 live and for the jury to observe his physical condition, which is relevant to his claims of pain, 18 suffering, and physical degradation. Defendants do not dispute the substantive benefit of Smith’s 19 presence, see Dkt. 65 at 2, and the Court finds his attendance at trial will substantially assist the 20 jury’s assessment of his claims. 21 Second, the Court finds that there is no heightened security risk for transporting Smith 22 beyond what is typical for a state prisoner. Defendants do not raise any objection based on a
23 security risk he would pose to the Court or community. See id. 24 Third, the Court finds that the cost of transporting and safekeeping Smith is acceptable. 1 Defendants object solely based on cost, stating it “would cost the Department significantly,” id., 2 but they do not provide any evidence of the costs they would incur or propose how to reallocate 3 those costs. Defendants argue they cannot be required to bear the cost of transporting a prisoner
4 in compliance with a writ ad testificandum but cite no authority to support their position, which 5 is contrary to applicable Ninth Circuit precedent. In Wiggins, the Ninth Circuit held that a state 6 department of corrections may be required to bear the cost “to transport, guard, and pay all 7 expenses associated with securing the presence” of a state prisoner even where the state is not a 8 party to the underlying case. See 717 F.2d at 467 (noting that Wiggins’s federal civil rights suit 9 was against Alameda County). Here, because DOC is a party and responsible for the conduct 10 alleged to have violated the law, there is further justification for allocating the costs of securing 11 Smith’s presence to DOC. Because Defendants do not show that there will be any excessive or 12 atypical cost in complying with the writ in this case, the Court finds that the benefit of Smith’s
13 attendance outweighs the cost to DOC. 14 Fourth, and finally, no party has suggested that this suit can be stayed until Plaintiff is 15 released without prejudice to the cause asserted. After considering the Ballard factors, the Court 16 finds facilitating Smith’s attendance at trial will substantially further the resolution of the case 17 and will not impose an unacceptable cost or excessive security risk. 18 IV. CONCLUSION Plaintiff’s motion for issuance of a Writ of Habeas Corpus Ad Testificandum (Dkt. 64) is 19 GRANTED. The Court will issue the writ itself by separate order. 20 Dated this 23rd day of February, 2024. 21 22 A 23 Tiffany M. Cartwright 24 United States District Judge