Davis v. Green et al

Filing 49

OPINION AND ORDER DENYING 48 Motion for Production of Witness. Signed by Judge William S. Duffey, Jr on 5/21/2015. (adg)

864-65 (11th Cir. 2008). Section 2241(c)(5) of the Judicial Code authorizes the
Court to issue a writ to obtain the presence of a state prisoner at trial. 28 U.S.C.
§ 2241(c)(5). The Court’s authority to issue the writ applies in all civil cases
between private parties. See ITEL Capital Corp. v. Dennis Mining Supply &
Equipment, Inc., 651 F.2d 405, 406-07 (5th Cir. 1981);1 Barnes v. Black, 544 F.3d
807, 809-10 (7th Cir. 2008).
To determine whether a writ should be issued, the Court considers “whether
the prisoner’s presence will substantially further the resolution of the case, what
security risks are presented by permitting the prisoner to come to court to testify,
what the expense of the prisoner’s transportation and upkeep will be, and other
facts bearing on the need for the prisoner’s testimony vis-à-vis the difficulties
attendant in securing it.” United States v. Rinchack, 820 F.2d 1557, 1568 (1987).
A plaintiff seeking the writ has the affirmative burden to show the necessity and
relevance of the prisoner’s testimony. Id. The failure to explain the testimony or
“give an offer of proof as to the testimony [a prisoner] might be expected to offer”
constitute grounds to deny the writ. Id. (citing United States v. Rigdon,
459 F.2d 379, 380 (6th Cir. 1972) (generally stating that a witness is necessary as
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In Bonner v. City of Pritchard, 661 F.2d 1206, 1209 (11th Cir. 1981), the
Eleventh Circuit adopted as binding precedent the decisions of the former Fifth
Circuit issued before September 30, 1981.

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an alibi and for impeachment purposes is insufficient to show the necessity and
relevance of the testimony)).
Plaintiff here has failed to provide any information regarding the nature or
substance of Taylor’s trial testimony or what it adds to the evidence intended to be
presented in this case. Plaintiff has also failed to present any information upon
which the Court can evaluate the risk that Taylor may present if he testifies at trial,
the risks associated with his transport or the expense that will be associated with
his travel. Id. at 1568. In the absence of this fundamental information necessary
for the Court to evaluate if his testimony and presence are necessary, the Court
declines to issue the writ.2
Accordingly, for the foregoing reasons,
IT IS HEREBY ORDERED that Plaintiff’s Motion for Production of
Witness [48] is DENIED.

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The Court also notes that, on March 6, 2015, the Court set this case for trial
beginning on June 8, 2015. Despite this advance notice, Plaintiff waited for two
and a half months after the trial date was set to request the writ. Plaintiff does not
explain the reason for his delay in seeking the writ, and he does not explain why he
failed to provide the information necessary for the Court to determine whether
Taylor’s presence should be ordered. See Rinchack, 820 F.3d at 1568 (observing
that if the petitioner has adequate notice of the trial date, a district court may refuse
to issue the writ if the petition is untimely). The Court finally notes that Plaintiff
did not cite the proper authority upon which to request the writ he seeks.

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SO ORDERED this 21st day of May, 2015.

_______________________________
WILLIAM S. DUFFEY, JR.
UNITED STATES DISTRICT JUDGE

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