Session v. Clemings et al

Filing 382

ORDER by Judge Philip A. Brimmer on 12/11/2018, re: 377 Plaintiff's Motion for Writs of Habeas Corpus Ad Testificandum is GRANTED in part and DENIED in part as stated in this order; 305 Plaintiff's Motion for Court Orde red Handicap Transportation and Cuffing for Trial is DENIED without prejudice. ORDERED that defendants are granted leave to depose Kenneth Walker pursuant to Fed. R. Civ. P. 30(a)(2)(B). (sphil, ) Modified on 12/11/2018 to correct file date. (sphil, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Philip A. Brimmer
Civil Action No. 14-cv-02406-PAB-KLM
FRANKY L. SESSION,
Plaintiff,
v.
DEPUTY SHERIFF CAPTAIN ROMERO, in his individual capacity, and
DEPUTY SHERIFF SERGEANT JORDAN, in his individual capacity,
Defendants.
_____________________________________________________________________
ORDER
_____________________________________________________________________
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 W alker, 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(unpublished table decision).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

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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
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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

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The Court agrees with defendants that a party’s trial witness list does not
supersede the final pretrial order and thus plaintiff should have moved to amend the
final pretrial order pursuant to Fed. R. Civ. P. 16(e). However, the Court declines to
deny plaintiff’s motion on this basis. Defendants have already presented their
arguments opposing amendment, see Docket No. 381 at 3 n.1(acknowledging
possibility that Court would construe plaintiff’s motion as a request to amend the final
pretrial order), and requiring plaintiff to file an additional motion for leave to amend at
this juncture would only delay resolution of the issue, which, given the proximity of trial,
would be prejudicial to both parties.
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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
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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 concerns
that would counsel against allowing Mr. Walker’s physical presence at trial.
For the foregoing reasons, it is
ORDERED that Plaintiff’s Motion for Writs of Habeas Corpus Ad Testificandum
[Docket No. 377] is GRANTED in part and DENIED in part as stated in this order. It is
further
ORDERED that the Clerk of the Court issue a writ to Rick Raemisch, Executive
Director, Colorado Department of Corrections, and to Steven Owens, Warden,
Colorado State Penitentiary, requiring Mr. Owens to produce Kenneth W alker,
Department of Corrections Inmate No. 166689, before Judge Philip A. Brimmer of the
United States District Court for the District of Colorado, for the proceedings scheduled
to begin January 28, 2019 at 8:00 a.m., and to hold him at all times in the custody of
the Colorado Department of Corrections until the conclusion of the trial, and thereafter
to return Mr. Walker to the institution where he is now confined. It is further
ORDERED that defendants are granted leave to depose Kenneth W alker
pursuant to Fed. R. Civ. P. 30(a)(2)(B). It is further
ORDERED that Plaintiff’s Motion for Court Ordered Handicap Transportation and
Cuffing for Trial [Docket No. 305] is DENIED without prejudice.

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DATED December 10, 2018.
BY THE COURT:

s/Philip A. Brimmer
PHILIP A. BRIMMER
United States District Judge

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