Montes v. Rafalowski et al

Filing 107

ORDER by Judge Whyte denying 72 Motion for Writ of Habeas Corpus ad testificandum.(rmwlc1, COURT STAFF) (Filed on 6/25/2012)

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E-FILED on 6/25/2012

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

United States District Court
For the Northern District of California

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ROY A. MONTES (a.k.a. RAYMOND
MONTEZELLO),

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Plaintiff,
v.
CORRECTIONAL OFFICER P.
RAFALOWSKI, et al.,
Defendants.

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Case No.: C 09-0976 RMW
ORDER DENYING PLAINTIFF’S
PETITION FOR WRIT OF HABEAS
CORPUS AD TESTIFICANDUM
[Re Docket No. 72]

Roy A. Montes (“plaintiff”) petitions the court for a Writ of Habeas Corpus Ad

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Testificandum, pursuant to 28 U.S.C. §§ 1651(a) & 2241(c)(5). For the reasons set forth below, the

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court conditionally denies plaintiff’s petition, provided that defendants enable plaintiff to testify

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remotely by videoconference.

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I.

BACKGROUND

Plaintiff Roy A. Montes is currently an inmate at Kern Valley State Prison. On May 26,

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2008, while incarcerated at Pelican Bay State Prison, plaintiff attempted to kick defendant officer

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Rafalowski, while Rafalowski was escorting him from the shower back to his cell. Plaintiff alleges

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that defendant responded to this attempted kick with excessive force, repeatedly punching plaintiff in

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the face and slamming plaintiff’s head against the concrete floor. Plaintiff filed the instant action on

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March 6, 2009, asserting violation of his civil rights under 42 U.S.C. § 1983. Plaintiff filed an

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Case No.: C 09-0976 RMW
ORDER DENYING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS AD
TESTIFICANDUM

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amended complaint on August 22, 2011, asserting three additional California tort claims: assault,

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battery, and intentional infliction of emotional distress.

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Plaintiff is serving a life sentence for murder. In the six-and-a-half years since beginning his

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prison term in November 2005, plaintiff has incurred seven rules violations for violent interactions

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with other inmates and correctional officers. Plaintiff has also received various CDCR mental health

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services since beginning his prison term and was, at the time of the relevant incident involving

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defendant Rafalowski, housed in the Psychiatric Services Unit, which offered the highest level of

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security housing available in the CDCR system. Plaintiff is no longer in the Psychiatric Services

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Unit, and is currently housed with the general prison population, in a level IV security facility.

United States District Court
For the Northern District of California

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II.

ANALYSIS

While “imprisonment suspends the plaintiff's usual right to be personally present at judicial

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proceedings brought by himself or on his behalf,” Hernandez v. Whiting, 881 F.2d 768, 770 (9th Cir.

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1989), a district court has discretion to issue a writ of habeas corpus ad testificandum to secure the

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prisoner’s presence in court so that he may testify at trial. Wiggins v. County of Alameda, 717 F.2d

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466, 468 f.n. 1 (9th Cir. 1983); Greene v. Prunty, 938 F. Supp. 637, 638 (S.D. Cal. 1996). Although

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plaintiff is currently incarcerated in Kern County, which is within the Eastern District of California,

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the court may, in its discretion, issue a writ “to produce a person incarcerated outside of the district

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to testify.” Greene, 938 F. Supp. at 638. When determining whether to issue a writ of habeas corpus

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ad testificandum, the Ninth Circuit has directed courts to weigh the following four Ballard Factors:

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(1) whether the prisoner’s presence will substantially further the resolution of the case; (2) the

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security risks presented by the prisoner’s presence; (3) the expense of the prisoner’s transportation

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and safekeeping; and (4) whether the suit can be stayed until the prisoner is released without

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prejudice to the cause asserted. Wiggins, 717 F.2d at 468 f.n. 1 (citing Ballard v. Spradley, 557 F.2d

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476, 480 (5th Cir. 1977)); see also Muhammad v. Warden, 849 F.2d 107, 113 (4th Cir. 1988)

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(enumerating a list of factors analogous to those in Ballard); Greene, 938 F. Supp. at 639

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(explaining that a writ of habeas corpus ad testificandum is appropriate when “the probative value of

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Case No.: C 09-0976 RMW
ORDER DENYING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS AD
TESTIFICANDUM

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the testimony justifies the expense and security risk associated with transporting an inmate-witness

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to court from a correctional facility”).

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In applying these four factors, the court notes at the outset that a stay is not appropriate in

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this case, given that plaintiff is currently serving a life sentence. Thus, the court turns its attention

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exclusively to factors one through three. When security concerns and expense become substantial

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enough considerations, such that they counsel against issuing a writ of habeas corpus ad

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testificandum, other district and circuit courts are increasingly looking to videoconferencing as a

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viable alternative to live testimony. See Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir. 2005)

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(finding that “the district court did not abuse its discretion in conducting the trial by

United States District Court
For the Northern District of California

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videoconference” when hearing the plaintiff inmate’s §1983 action against corrections officials);

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Twitty v. Ashcroft, 712 F. Supp. 2d 30, 33 (D. Conn. 2009) (“the court finds that expense and

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security concerns outweigh the plaintiff's interest in physically appearing at trial, particularly in light

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of the availability of a reasonable alternative, that of having the plaintiff appear by

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videoconference”).

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In the instant action, resolution of the issue will significantly depend on individual testimony

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and credibility. Courts have noted the limitations of videoconferencing in similar situations. See

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Edwards v. Logan, 38 F. Supp. 2d 463, 467 (W.D. Va. 1999) (“video conferencing . . . is not the

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same as actual presence, and it is to be expected that the ability to observe demeanor, central to the

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fact-finding process, may be lessened in a particular case by video conferencing”). Despite these

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shortcomings, however, videoconferencing nonetheless facilitates plaintiff’s meaningful

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participation at trial: plaintiff is able to testify, present evidence, and look each juror in the eye.

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United States v. Baker, 45 F.3d 837, 843 (4th Cir. 1995); see also Edwards, 38 F. Supp. 2d at 467-68

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(“with video conferencing, [plaintiff] will be virtually present at his trial and will have the ability to

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confront witnesses, address the jury, and participate fully”). The court also notes that it is not

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uncommon for testimony to be presented by videotaped depositions. Thus, even when resolution of

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the case hinges on the jury’s ability to judge the veracity of plaintiff’s testimony, considerable

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expense and security concerns may recommend videoconferencing over physical presence.

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Case No.: C 09-0976 RMW
ORDER DENYING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS AD
TESTIFICANDUM

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In the instant case, the security risk posed by plaintiff and the expense associated with

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transporting plaintiff to the courthouse weigh heavily against issuing a writ of habeas corpus ad

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testificandum. Plaintiff is currently in a level IV security facility and has a history of violent

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interactions with both correctional officers and other inmates. Additionally, the Kern Valley

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litigation coordinator estimates that it would cost approximately $20,000 to safely transport and

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house plaintiff for the duration of the trial. Allowing plaintiff’s participation through video

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conference would alleviate substantial security risks and much of the cost, without unfairly

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prejudicing plaintiff by denying the jury adequate opportunity to judge plaintiff’s credibility.

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To minimize any potential unfair advantage in favor of defendants, plaintiff and defendants

United States District Court
For the Northern District of California

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must confer to discuss whether other witnesses, particularly percipient witnesses, should also appear

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by videoconference in lieu of making a physical appearance in court. In the event that plaintiff and

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defendants cannot reach an agreement, either party may file a motion with the court to request that

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certain other witnesses appear by videoconference.

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III. ORDER

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For the foregoing reasons, the court denies plaintiff’s petition for writ of habeas corpus ad

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testificandum, without prejudice, provided that defendants enable plaintiff to testify remotely by

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videoconference. Defendants’ counsel is to make videoconferencing arrangements and notify

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plaintiff’s counsel and the court with all relevant details. Defendants’ counsel may contact the

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courtroom deputy, Jackie Garcia, 408-535-5375, or Jackson Xu, the court’s IT specialist, 408-535-

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5384, to learn what, if any, equipment is located at the court that could assist in setting up

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videoconferencing. Defendants’ counsel must notify the court by no later than July 11, 2012

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regarding the arrangements they have made.

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IT IS SO ORDERED.

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Dated: June 25, 2012

_________________________________
RONALD M. WHYTE
United States District Judge

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Case No.: C 09-0976 RMW
ORDER DENYING PLAINTIFF’S PETITION FOR WRIT OF HABEAS CORPUS AD
TESTIFICANDUM