Ward v. Wolfenbarger
Filing
191
ORDER denying 176 Emergency Motion for Protective Order; denying 179 Motion to Facilitate Discovery; denying 188 Motion for Additional Library Time. Signed by District Judge Arthur J. Tarnow. (CPic)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,
Petitioner,
Civil Nos. 03-CV-72701/72858-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE
v.
HUGH WOLFENBARGER,
Respondent,
________________________________/
OPINION AND ORDER DENYING THE EMERGENCY MOTION FOR
PROTECTIVE ORDER [Dkt. # 176], THE MOTION TO FACILITATE
DISCOVERY [Dkt. # 177], AND THE MOTION FOR ADDITIONAL LIBRARY
TIME [Dkt. # 188].
Michael Charles Ward, (“petitioner”), presently confined at the Oaks
Correctional Facility in Manistee, Michigan, filed an emergency motion for a
protective order, a motion to facilitate discovery, and a motion for additional
library time. For the reasons stated below, the motions are DENIED.
In his first motion, which was filed while petitioner was incarcerated at the
Bellamy Creek Correctional Facility, petitioner asked this Court to issue an order
preventing the prison authorities from transferrring him to another prison. In all of
his motions, petitioner claims that prison officials either at the Bellamy Creek
Facility or at the Oaks Correctional Facility where petitioner is currently
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incarcerated, are denying him access to the courts, either by refusing to copy his
various pleadings or by denying him sufficient time in the law library.
Fed. R.App. P. 23(a) states:
“Transfer of Custody Pending Review. Pending review of a decision
in a habeas corpus proceeding commenced before a court, justice,
or judge of the United States for the release of a prisoner, the person
having custody of the prisoner must not transfer custody to another
unless a transfer is directed in accordance with this rule. When,
upon application, a custodian shows the need for a transfer, the
court, justice, or judge rendering the decision under review may
authorize the transfer and substitute the successor custodian as a
party.”
Relief for a violation of Fed.R.App. P. 23(a), however, is available only if a
habeas petitioner establishes that a transfer resulted in prejudice to the
prosecution of a pending habeas action. See Shabazz v. Carroll, 814 F. 2d 1321,
1324 (9th Cir. 1987), vacated in part on other grounds, 833 F. 2d 149 (9th Cir.
1987); Hammer v. Meachum, 691 F. 2d 958, 961 (10th Cir. 1982). In addition, a
habeas petitioner who opposes transfer must establish that “the transfer would
deprive the court of jurisdiction or substantially complicate the conduct of the
litigation.” See Strachan v. Army Clemency Parole Bd., 151 F. 3d 1308, 1313
(10th Cir. 1998)(quoting Ward v. United States Parole Comm'n, 804 F. 2d 64, 66
(7th Cir. 1986)).
Petitioner has failed to show that his transfer to a prison in the Western
District of Michigan has deprived this Court of jurisdiction over his case or has
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otherwise prejudiced him, accordingly, to the extent that petitioner seeks or
sought to avoid transfer to another prison, his motion for a protective order is
denied.
The Court will also deny petitioner’s motions insofar as he claims he is
being denied access to the courts or access to library time.
On July 18, 2014, the Court appointed counsel to represent petitioner.
Counsel is planning on filing a supplemental brief on petitioner’s behalf by July
27, 2015. Because petitioner is being represented by counsel, he cannot
complain that his access to the courts is being denied. The Sixth Circuit has held
that “[a] prisoner’s constitutionally-guaranteed right of access to the courts has
been protected when a state provides that prisoner with either the legal tools
necessary to defend himself, e.g., a state-provided law library, or the assistance
of legally-trained personnel.” Holt v. Pitts, 702 F. 2d 639, 640 (6th Cir. 1983). As
long as legal counsel has been provided to assist a prisoner with his case, the
state has fulfilled its obligation to provide a prisoner with access to the courts. Id.
Moreover, as long as a prisoner has the assistance of counsel, the denial of law
library privileges to that prisoner does not violate due process or impair his
access to the courts. See United States v. Manthey, 92 Fed. Appx. 291, 297 (6th
Cir. 2004); Skelton v. Pri-Cor, Inc., 963 F. 2d 100, 104 (6th Cir. 1991); Holt, 702
F. 2d at 640; See also Thompson v. Elo, 919 F. Supp. 1077, 1084 (E.D. Mich.
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Ward v. Wolfenbarger, 03-CV-72701
1996)(habeas petitioner’s alleged lack of access to legal resources due to
inadequate law libraries in prison did not provide cause for procedural default, in
light of fact that petitioner was represented by counsel at trial and on direct
appeal).
Finally, to the extent that petitioner seeks discovery, any such request is
premature because neither petitioner’s counsel nor respondent have filed their
briefs in this case. “A habeas petitioner, unlike the usual civil litigant, is not
entitled to discovery as a matter of ordinary course.” Bracy v. Gramley, 520 U.S.
899, 904 (1997). Instead, a habeas petitioner is entitled to discovery only if the
district judge “in the exercise of his discretion and for good cause shown grants
leave” to conduct discovery. Rule 6 Governing Section 2254 Cases in the United
States District Courts, 28 U.S.C. foll. § 2254. To establish “good cause” for
discovery, a habeas petitioner must establish that the requested discovery will
develop facts which will enable him or her to demonstrate that he or she is
entitled to habeas relief. See Bracy, 520 U.S. at 908-09.
Until a respondent files an answer to the habeas petition, “it is impossible
to evaluate what, if any, discovery is needed and whether the discovery is
relevant and appropriately narrow.” Gengler v. United States ex rel. Dept. of
Defense & Navy, 463 F. Supp. 2d 1085, 1114-15 (E.D. Cal. 2006); See also
Shaw v. White, No. 2007 WL 2752372, * 3 (E.D. Mich. September 21, 2007). In
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addition, none of the Rule 5 materials have been received by the Court; “and
receipt of those materials may obviate the need to order discovery.” Shaw, No.
2007 WL 2752372, at * 3. Granting petitioner’s discovery request at this time
would be premature. Therefore, the motion for discovery will be denied without
prejudice. Id.
ORDER
Based upon the foregoing, IT IS ORDERED that the motion for an
emergency protective order, [Dkt. # 176], a motion to facilitate discovery [Dkt. #
177], and the motion for additional law library time [Dkt. # 180] are DENIED.
S/Arthur J. Tarnow
Arthur J. Tarnow
Senior United States District Judge
Dated: June 15, 2015
I hereby certify that a copy of the foregoing document was served upon counsel
of record on June 15, 2015, by electronic and/or ordinary mail.
S/Catherine A. Pickles
Judicial Assistant
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