Conn v. City of Omaha et al
MEMORANDUM AND ORDER - The plaintiff's Motion for Writ of Habeas Corpus Ad Testificandum and Request for Hearing (filing 44 ) is granted. A separate writ will issue. The plaintiff's subsequently-filed Motion for Writ of Habeas Corpus Ad Te stificandum (filing 54 ) is denied as moot. The United States Marshal shall, at the courthouse, make its holding facilities available and provide all other assistance necessary to secure the plaintiff. The plaintiff shall compensate the Nebraska Dep artment of Corrections for the costs reasonably incurred in association with his transportation to trial: $15.932 per hour for 2 correctional officers until 2:00 p.m. each day, $23 per hour for those officers' overtime after 2:00 p.m., and mileage of 9 miles from the prison to the courthouse at the federal mileage rate of $.565 per mile. Ordered by Judge John M. Gerrard. (Email copy to USM)(AOA) (modified on 11/29/2013 to remove typo)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
MEMORANDUM AND ORDER
CITY OF OMAHA, et al.,
This matter is before the Court on the plaintiff's Motion for Writ of
Habeas Corpus Ad Testificandum and Request for Hearing (filing 44). The
motion was filed—and this case was previously continued—arising from
disagreements among the parties, the United States Marshal, and the
Nebraska Department of Corrections regarding who should transport—and
bear the costs of transporting—the plaintiff to this civil proceeding. See filing
43. The Magistrate Judge entered an order asking the parties to brief the
issues, but no briefs were filed. See filing 43. The United States Marshal and
the Nebraska Department of Corrections were added as interested parties,
and a hearing was held before the Court on November 7, 2013. Filing 45;
filing 47; filing 50; filing 53. The parties were again directed to brief the
issues before the Court. Filing 47; filing 50. That briefing is complete,
although the plaintiff still failed to file a brief. Being fully advised, the Court
will grant the plaintiff's motion subject to the conditions set forth below.
The interrelated issues submitted to the Court, as presented by the
plaintiff's motion, are (1) the place of trial, (2) whether the plaintiff shall
attend the trial, (3) who shall bear the costs of transporting the plaintiff, and
(4) who shall bear any additional costs incurred by the defendants and
witnesses. At the November 7 hearing, the parties were able to agree on
certain matters. It was agreed that the trial of this case should be moved
from Omaha, Nebraska, to Lincoln, Nebraska. Filing 53. And the plaintiff
agreed not to contest a court order that certain costs associated with
transportation would be borne by the plaintiff. Filing 53.
Based on the parties' agreement, and consistent with NECivR 40.1, the
Court has already ordered that trial of this case will be in Lincoln,
Nebraska.1 Filing 50. The Court has also already determined that the
plaintiff shall be permitted to attend the trial, and that the Department of
Corrections will transport him. Filing 50. Although a prisoner plaintiff has no
constitutional right to be present for his civil proceeding, see Fruit v. Norris,
905 F.2d 1147, 1150 n.6 (8th Cir. 1990), the Court clearly has the legal
authority to order production of a prisoner when it is necessary to bring him
into court to testify or for trial. 28 U.S.C. § 2241(c)(5). The factors to be
considered when determining whether the plaintiff's presence is necessary
include the burden on the State, the existence of other alternatives, and
whether the prisoner's presence will substantially aid in resolving the case.
See, Michaud v. Michaud, 932 F.2d 77, 81 (1st Cir. 1991); Poole v. Lambert,
819 F.2d 1025, 1028-29 (11th Cir. 1987); Muhammad v. Warden, 849 F.2d
107, 112 (4th Cir. 1988); Ballard v. Spradley, 557 F.2d 476, 480-81 (5th Cir.
1977); Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976). Considerations
of expense, security, logistics, and docket control may prevent according a
prisoner plaintiff an absolute right to be present. Muhammad, 849 F.2d at
111-12. But where the plaintiff's testimony is potentially critical, not only the
appearance but the reality of justice are threatened by his absence. Id. at
111. Having considered those factors—particularly the potential importance
of the plaintiff's testimony, given the nature of this litigation—the Court
finds that the plaintiff's presence at trial is necessary within the meaning of
28 U.S.C. § 2241(c)(5).
But, as noted above, the plaintiff has no right to be present. Fruit, 905
F.2d at 1150 n.6. And the Court is permitted to consider the expense to the
State of transporting the plaintiff, and weigh that against the need for his
presence. See Michaud, 932 F.2d at 81; Poole, 819 F.2d at 1028-29;
Muhammad, 849 F.2d at 112; Ballard, 557 F.2d at 480-81; Stone, 546 F.2d at
735-36. It is therefore appropriate to consider whether the plaintiff's presence
at trial should be conditioned upon his willingness to ease the burden on the
State by defraying its expense. See Holesome v. Pontotoc Cty. Jail, 189 F.3d
469, 1999 WL 548724, at *1 (5th Cir. 1999) (unpublished decision). The Court
acknowledges well-reasoned authority holding that the Court cannot,
Trying the case in Lincoln also resolves any jurisdictional conflict arising from Neb. Rev.
Stat. § 25-1233(1), which provides that a person confined in a prison in Nebraska shall, by
court order, "be produced for oral examination in the county where he or she is imprisoned.
In all other cases his or her examination must be by deposition." Both the Lincoln
courthouse and the correctional facility in which the plaintiff is housed are in Lancaster
County, Nebraska. The Court's authority under 28 U.S.C. § 2241(c)(5) would supersede any
state law to the contrary, see Barnes v. Black, 544 F.3d 807, 812 (7th Cir. 2008), but trying
this case in Lancaster County means that production of the prisoner is required under
federal and state law.
pursuant to 28 U.S.C. § 1920 and Fed. R. Civ. P. 54(d), order a prisoner to
pay his own transportation costs.2 See, Rangolan v. Cty. of Nassau, 370 F.3d
239, 248-54 (2d Cir. 2004); Sampley v. Duckworth, 72 F.3d 528, 529-33 (7th
Cir. 1995); Sales v. Marshall, 873 F.2d 115, 117-21 (6th Cir. 1989) Wiggins v.
Alameda Cty., 717 F.2d 466, 468-69 (9th Cir. 1983); Story v. Robinson, 689
F.2d 1176, 1178-82 (3d Cir. 1982); but see Ford v. Carballo, 577 F.2d 404,
406-08 (7th Cir. 1978). But it is equally well-established that a party may
agree to pay costs that would not otherwise be recoverable under 28 U.S.C. §
1920. See, Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 445
(1987); In re Ricoh Company, Ltd., 661 F.3d 1361, 1366-67 (Fed. Cir. 2011);
Weitz Co. v. MH Washington, 631 F.3d 510, 535-36 (8th Cir. 2011). The
plaintiff, through counsel, has agreed to do so here. And, the Court notes, the
plaintiff has retained counsel and is not proceeding in forma pauperis. The
Court will therefore direct the plaintiff to compensate the Department of
Corrections for his transportation expenses at the rates agreed to at the
November 7 hearing, as set forth below.
The defendants' request for costs presents a different problem. The
defendants suggest that the plaintiff should be required to pay the
transportation costs of the defendants and their witnesses. Filing 52. But the
recovery of witness expenses is directly addressed by federal law, and under
that law, the defendants' request is at best premature.
Under Fed. R. Civ. P. 54(d), costs other than attorney's fees should be
allowed to a prevailing party. Of course, the defendants are not yet prevailing
parties. Even then, such awards must fit within 28 U.S.C. § 1920, which
enumerates the costs that a district court may tax. Little Rock Cardiology
Clinic PA v. Baptist Health, 591 F.2d 591, 601 (8th Cir. 2009) (citing
Crawford Fitting Co., 482 U.S. at 441-42); see also Brisco-Wade v. Carnahan,
The Court notes Neb. Rev. Stat. § 25-1233(2), which provides that when a state prisoner is
produced by the Department of Corrections in a civil matter pursuant to court order, "the
party who moved for the production order shall pay to the department the actual cost of
security and transportation arrangements incurred by the department related to such
production." The award of costs in federal court is governed by Fed. R. Civ. P. 54(d), rather
than conflicting state law. Humann v. KEM Elec. Co-op., Inc., 497 F.3d 810, 813 (8th Cir.
2007) (citing Abrams v. Lightolier, Inc., 50 F.3d 1204, 1223 (3d Cir. 1995); 10 Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 2669 (1998)).
But § 25-1233(2) is arguably not a fee- or cost-shifting provision so much as an independent
state-law duty of anyone demanding a state prisoner to pay transportation expenses. Cf.
Jacob v. Schlichtman, 753 N.W.2d 361, 366-67 (Neb. App. 2008). The Court has found no
authority speaking to whether a state statute may require a prisoner to pay his own
transportation expenses to a federal trial, much less authority on whether the federal court
then has authority to award those expenses as costs. Given the plaintiff's agreement to
absorb the costs of transportation, the Court need not decide this question.
297 F.3d 781, 782 (8th Cir. 2002). And as a general rule, parties may not
normally collect witness fees. Haroco, Inc. v. Am. Nat. Bank & Trust Co. of
Chicago, 38 F.3d 1429, 1442 (7th Cir. 1994); Maxwell v. Kerr-McGee Oil &
Gas Corp., 793 F. Supp. 2d 1260, 1268 (D. Colo. 2011); Bowling v. Hasbro,
Inc., 582 F. Supp. 2d 192, 209 (D.R.I. 2008).
The defendants refer the Court to the provision of Neb. Rev. Stat. § 251233(2) that a party who moves for the production of a prisoner "shall pay to
the department the actual cost of security and transportation arrangements
incurred by the department related to such production." The defendants
suggest that the term "actual cost" should be interpreted "to include the
transportation costs of the defendant officers and their witnesses." Filing 52
at 5. Even if § 25-1233(2) could be enforced by this Court—a matter that, as
discussed in the footnote above, the Court does not decide—there is simply no
basis for the defendants' suggested reading of the statutory language. The
statute, in fact, could not be more clear that the cost to be recovered is the
cost "incurred by the department" and to be paid "to the department." Other
parties' expenses are not addressed, and their payment is not required or
even authorized by the statute.
Simply put, whether—and to what extent—the defendants' costs are
recoverable is a matter to be decided, after trial, if the defendants are
prevailing parties, pursuant to Fed. R. Civ. P. 54(d), 28 U.S.C. § 1920, and
NECivR 54.1. At this point, there is nothing to establish the defendants' right
to recover any costs.
IT IS ORDERED:
The plaintiff's Motion for Writ of Habeas Corpus Ad
Testificandum and Request for Hearing (filing 44) is
granted. A separate writ will issue. The plaintiff's
subsequently-filed Motion for Writ of Habeas Corpus Ad
Testificandum (filing 54) is denied as moot.
The United States Marshal shall, at the courthouse, make
its holding facilities available and provide all other
assistance necessary to secure the plaintiff.
The plaintiff shall compensate the Nebraska Department of
Corrections for the costs reasonably incurred in association
with his transportation to trial: $15.932 per hour for 2
correctional officers until 2:00 p.m. each day, $23 per hour
for those officers' overtime after 2:00 p.m., and mileage of 9
miles from the prison to the courthouse at the federal
mileage rate of $.565 per mile.
Unless other arrangements for payment are made, the
Department of Corrections may withdraw funds from the
plaintiff's trust fund account in the manner and amounts
provided by 28 U.S.C. § 1915(b)(2).
Dated this 29th day of November, 2013.
BY THE COURT:
John M. Gerrard
United States District Judge
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