Ward v. Wolfenbarger

Filing 129

ORDER denying 122 Motion for Protective Order; denying 124 Motion to Facilitate Discovery; denying 126 Motion for Additional Library Time. Signed by District Judge Arthur J. Tarnow. (MLan)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
MICHAEL CHARLES WARD,

Petitioner,
v.

Civil Nos. 03-CV-72858-DT
HONORABLE ARTHUR J. TARNOW
UNITED STATES DISTRICT JUDGE

HUGH WOLFENBARGER,
Respondent,
________________________________/
OPINION AND ORDER DENYING THE EMERGENCY MOTION FOR
PROTECTIVE ORDER [Dkt. # 122], THE MOTION TO FACILITATE
DISCOVERY [Dkt. # 124], AND THE MOTION FOR ADDITIONAL LIBRARY
TIME [Dkt. # 126].
Michael Charles Ward, (“petitioner”), 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 transferring 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
incarcerated, have denied 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) 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). Moreover, a habeas petitioner
who opposes a prison 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 failed to show that his transfer to a prison in the Western District
of Michigan deprived this Court of jurisdiction over his case or otherwise
prejudiced him, thus, to the extent that petitioner seeks or sought to avoid transfer
to another prison, his motion for a protective order is denied.
The Court also denies petitioner’s motions insofar as he claims he is being
denied access to the courts or access to library time.

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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 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.
In addition, 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.
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, petitioner’s discovery request is premature because neither
petitioner’s counsel nor respondent have filed their briefs in this case. “A habeas
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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
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
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emergency protective order, [Dkt. # 122], a motion to facilitate discovery [Dkt. #
124], and the motion for additional law library time [Dkt. # 126] are DENIED.

s/Arthur J. Tarnow
HON. ARTHUR J. TARNOW
UNITED STATES DISTRICT COURT
DATED: July 23, 2015

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