Thomas v. O'Brien et al
Filing
97
DECISION AND ORDER denying Plaintiff's request for the issuance of a writ and denying Plaintiff's request for an order requiring the USMS to house and transport him during the court of his civil trial. Signed by Magistrate Judge David E. Peebles on 11/8/2011. (amt) [Pltf served via reg. mail]
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
GREGORY THOMAS,
Plaintiff,
Civil Action No.
5:08-CV-0318 (DEP)
v.
JAMES O’BRIEN, Syracuse Police Officer,
OFFICER DADEY, OFFICER CUNNINGHAM,
and SGT. RATHBUN,
Defendants.
APPEARANCES:
FOR PLAINTIFF:
OF COUNSEL:
HINMAN, HOWARD LAW FIRM
P.O. Box 5250
80 Exchange Street
700 Security Mutual Building
Binghamton, NY 13902-5250
PATRICK J. MAY, ESQ.
FOR DEFENDANTS:
HON. MARY ANNE DOHERTY
CORPORATION COUNSEL
233 East Washington Street
Room 301 City Hall
Syracuse, NY 13202
JAMES P. McGINTY, ESQ.
Assistant Corporation Counsel
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
DECISION AND ORDER
Plaintiff Gregory Thomas, a federal prison inmate currently serving a
twenty-four and one-third-year sentence from this court for conspiring with
others to engage in a pattern of racketeering activity, has commenced this
action pursuant to 42 U.S.C. § 1983 against four members of the
Syracuse City Police Department alleging deprivation of his civil rights. In
his complaint, plaintiff claims that during the course of an arrest on April
14, 2005 the defendants violated his constitutional rights by subjecting him
to an unlawful search and seizure, false arrest, and use of excessive
force.
This case is now trial ready.1 The plaintiff, who has been assigned
counsel to represent him at trial pro bono, requests that the court issue
the necessary directives to require the United States Bureau of Prisons
(“BOP”) and/or the United States Marshals Service (“USMS”) to produce
him in person for trial in Syracuse, New York, and to transport and house
him during the course of the trial. That request is opposed by both the
defendants and the United States Attorney for the Northern District of New
York, whose input on behalf of the BOP and the USMS was solicited by
the court.
For the reasons set forth below, I find that the court possesses the
1
The matter is before me on consent of the parties, pursuant to 28 U.S.C. §
636(c). See Dkt. No. 77.
2
power to issue the directives necessary to procure the plaintiff’s presence
at trial. Nonetheless, after weighing the relevant factors informing the
decision of whether to exercise that authority, including principally the
potential security concerns and costs associated with plaintiff’s presence
at trial and the availability of live videoconferencing as a suitable
alternative, I have concluded that plaintiff’s request should be denied.
I.
BACKGROUND
On December 19, 2006, following a fifteen-day trial, plaintiff was
found guilty of conspiring with others for the purpose of engaging in a
pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). See
United States v. Applins, et al., No. 5:05-CR-00322 (NAM), Dkt. No. 336.
The conviction was subsequently affirmed on appeal to the Second Circuit
Court of Appeals.2 United States v. Applins, et al., 637 F.3d 59 (2d Cir.
2011). The indictment forming the basis for the plaintiff’s conviction
alleged that he and others who were members of a gang, known as the
Elk Block, engaged in fifty-four racketeering acts, including multiple
2
Seven of the defendants convicted at trial, including Thomas, appealed their
convictions as well as their sentences. Applins, 637 F.3d at 62. The Second Circuit
affirmed the judgments, including the sentences imposed, except as to plaintiff’s
sentence. With regard to the plaintiff, the court remanded the matter to the district
court for resentencing. Id. at 84. On remand Thomas, who originally received a
sentence of 360 months, was sentenced to a reduced term of imprisonment of 292
months. Id. at Dkt. Nos. 520, 728. Thomas’ appeal of the amended judgment is
currently pending before the Second Circuit. See id. at Dkt. No. 729 and Dkt. Entry of
Oct. 28, 2011.
3
instances of narcotics possession and distribution, firearms possession,
shootings, and murder, to promote their unlawful activities and discourage
competition from rival gangs. See Applins, 637 F.3d at 63. Evidence
adduced at trial established that Thomas engaged in daily crack-cocaine
sales in the gang’s territory and that when violence began to escalate
between the Elk Block members and another gang, Thomas secured and
carried a gun. Id. at 79-80. The evidence also revealed that after Thomas
was shot by a rival gang member, he spoke with another Elk Block
member about retaliating and shooting someone from the rival group. Id.
Addressing the plaintiff’s appeal of his conviction, the Second Circuit
concluded that there was “more than sufficient evidence” introduced at
trial to establish that Thomas was involved in a conspiracy and a
racketeering enterprise to conduct and participate in the conduct of the
gang’s affairs. Id. at 80.
Thomas is currently serving his sentence at the Canaan United
States Penetentiary (“USP Canaan”), located in Waymart, Pennsylvania,
the closest BOP facility to the United States Courthouse in Syracuse, New
York, at a distance of approximately one-hundred-thirty miles. See
Straesser Decl. (Dkt. No. 86-1) ¶¶ 3, 7. USP Canaan is a high security
institution. Straesser Decl. (Dkt. No. 86-1) ¶ 7. The plaintiff has been
4
designated by the BOP as falling within the “IN” custody classification, the
second highest security level that can be assigned to a federal inmate,
and is classified as being at a “HIGH” security level within the “IN” custody
category. Id. at ¶¶ 7-9. According to information available on the BOP
website, plaintiff’s current expected release date is June 5, 2029. See
http://www.bop.gov/iloc2/InmateFinderServlet?Transaction=IDSearch&nee
dingMoreList=false&IDType=IRN&IDNumber=13366-052&x=69&y=10
(site last visited November 8, 2011) (screen shot attached).
Thomas commenced this action on or about March 12, 2008 while
incarcerated, asserting claims stemming from his arrest on April 14, 2005
in the City of Syracuse for loitering and drug possession.3 In his
complaint, as amended on June 2, 2008, plaintiff alleges that defendants
subjected him to an unlawful search and seizure, false arrest, and the use
of excessive force during the course of the incident. Dkt. No. 14. In
response to defendants’ motion for summary judgment seeking dismissal
of plaintiff’s claims on the merits and also based upon qualified immunity,
Chief District Judge Norman A. Mordue issued a decision dated August 9,
2010 dismissing plaintiff’s false arrest claim, but otherwise denying the
3
This case was originally filed in the United States District Court for the Middle
District of Pennsylvania, but was transferred to this court on or about March 19, 2008.
Dkt. No. 9.
5
motion and deeming the case trial ready as of September 30, 2010. Dkt.
No. 43.
Following the issuance of Chief Judge Mordue’s order the plaintiff,
who at the outset of the case was granted in forma pauperis status, was
assigned pro bono counsel, and the matter was scheduled for trial
beginning on July 11, 2011. Before that date, plaintiff requested the
issuance of a subpoena directing that the USMS transport him to the
United States Courthouse in Syracuse, New York for trial, without the
requirement that he prepay the costs associated with producing him. The
trial was subsequently adjourned without date, and briefing addressing the
issue was invited from all interested parties, including the plaintiff, the
defendants, the BOP, the USMS, and the United States Attorney for the
Northern District of New York. Dkt. No. 84. That briefing is now complete,
and oral argument has been heard regarding the matter.
II.
DISCUSSION
Plaintiff’s application draws into question the court’s authority to
order his production at trial and to provide not only for his security while in
attendance, but additionally for his custody and care from the time of his
production until his return to BOP custody. The request also potentially
presents the question of who must bear the costs associated with such an
6
order, if entered, although I have opted not to address this issue given my
ultimate conclusion with regard to plaintiff’s application.
A.
The Court’s Authority to Order Plaintiff’s Production At Trial
The court’s authority to direct the production of the plaintiff at trial is
well-established, and seemingly non-controversial. Under 28 U.S.C. §
2241(c)(5), a court is empowered to secure the presence of a prison
inmate through the issuance of a writ of habeas corpus ad testificandum
when “[i]t is necessary to bring him [or her] into court to testify or for trial.”
Barnes v. Black, 544 F.3d 807, 809 (7th Cir. 2008); Muhammad v.
Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988). Such a
writ must be directed to “the person having control of the person
detained[,]”, 28 U.S.C. § 2243;4 Pennsylvania Bureau of Corrs. v. United
States Marshals Serv., 474 U.S. 34, 38, 106 S. Ct. 355, 359 (1985); see
also Barnes, 544 F.3d at 809; Barnett v. Moon, No. 89-CV-262, 1993 WL
133725, at * 1 (N.D.N.Y. Apr. 23, 1993) (McAvoy, C.J.), and may be
4
Section 2243 provides, in relevant part, that
[u]nless the application for the writ and the return present
only issues of law, the person to whom the writ is issued
shall be required to produce at the hearing the body of the
person detained.
28 U.S.C. § 2243 (emphasis added). This statute is thus properly directed at the
custodian of the prisoner and imposes a duty on that custodian to produce the subject
of the writ to the court. Rivera v. Santirocco, 814 F.2d 859, 862 (2d Cir. 1987).
7
served nationwide, regardless of whether the prisoner is housed in a
federal facility or instead is in the custody of a state or local agency. See
United States v. Mauro, 436 U.S. 340, 357-58, 98 S. Ct. 1834, 1846
(1978) (citing Carbo v. United States, 364 U.S. 611, 619-620, 81 S. Ct.
338, 343 (1961)); Muhammad, 849 F.2d at 114 (citing Carbo); United
States v. McGaha, 205 F. Supp. 949, 950 (E.D. Tenn. 1962) (citing 28
U.S.C. § 2241(c)(5) and Carbo). In this instance, since Thomas is
presently in the custody of BOP, the court is authorized to direct the BOP
to produce him in Syracuse for trial.5,6
5
From the supplemental submission of the office of the United States Attorney, it
appears that the burden of compliance would fall to the USMS by virtue of an
agreement between that agency and the BOP, and that if the court were to issue a writ
in this case Thomas would be produced utilizing the Justice Prisoner and Alien
Transportation System (“JPATS”), operated by and at the expense of the USMS. See
Supp. Ltr. Br., dated October 5, 2011 (Dkt. No. 92) p. 1.
6
The more challenging question concerns responsibility for providing security
and taking custody of the plaintiff once he is produced for trial. In Rivera, the Second
Circuit, discerning a statutory void in addressing who is responsible for an inmate from
the time of presentment to the court pursuant to a writ until the time of remand,
concluded that a district court can act pursuant to the All Writs Act, 28 U.S.C. § 1651,
to fill that void. Rivera, 814 F.2d at 863. In that case, involving civil rights claims
brought by prisoners in state custody, the court held that “[u]nder such circumstances,
a federal court may use the All Writs Act as authority to order the Bureau of Prisons to
house a prisoner, and the Marshals Service to transport the prisoner between the
courthouse and the [Metropolitan Correctional Center], until he is remanded back into
the state’s custody.” Id. at 863 (footnote omitted). Because I have decided, in the
exercise my discretion, not to require that the plaintiff be produced at trial, it is
unnecessary to address this issue, or the subsidiary question of whether the costs of
production and housing can be taxed to any of the litigants in the case.
8
B.
Whether to Exercise the Discretion Conferred Upon the Court
Without question, the constitution guarantees prison inmates free
access to the courts. Bounds v. Smith, 43 U.S. 817, 97 S. Ct. 1491
(1977). Notwithstanding that right of access, however, as a prison inmate
the plaintiff does not enjoy a constitutional right to be physically present at
the trial of his civil claim. See Twitty v. Ashcroft, 712 F. Supp. 2d 30, 31
(D. Conn. 2009) (collecting cases); see also Tedder v. Odel, 890 F.2d
210, 212 (9th Cir. 1989) (per curiam); Hawks v. Timms, 35 F. Supp. 2d
464, 465 (D. Md. 1999) (citing Price v. Johnston, 384 U.S. 266, 284-85, 68
S. Ct. 1049 (1948), overruled on other grounds by McCleskey v. Zant, 499
U.S. 467, 111 S. Ct. 1454 (1991)).
The decision of whether to exercise the authority, conferred by
statute, to issue a writ directing that the plaintiff be brought to this
jurisdiction for trial lies within the sound discretion of the trial court. Twitty,
712 F. Supp. 2d at 31; Barnett, 1993 WL 133725, at * 1; see also Atkins v.
City of New York, 856 F. Supp. 755, 757 (E.D.N.Y. 1994) (“the decision to
issue a writ of habeas corpus ad testificandum is committed to the sound
discretion of the district court.”) (citing Haywood v. Hudson, CV-90-3287,
1993 WL 150317, at *1 (E.D.N.Y. Apr. 23, 1993)). In assessing the
plaintiff’s request for a writ, the court must weigh his interest in presenting
9
his testimony in person against the interest of his custodian in maintaining
his confinement. Twitty, 712 F. Supp. 2d at 32.
The decision of whether to exercise its discretion in favor of issuing
a writ of habeas corpus ad testificandum under circumstances like those
now presented implicates several relevant considerations, including
whether the prisoner’s presence would
substantially further the resolution of the case, the
security risks presented by the prisoner’s
presence, the expense of the prisoner’s
transportation and safekeeping, and whether the
suit can be stayed until the prisoner is released
without prejudice to the case asserted.
Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977) (citing Ball v. Wood,
402 F. Supp. 803, 808-09 (N.D. Ala. 1975), aff’d sub nom., Ball v.
Shamblin, 529 F.2d 520 (5th Cir. 1976)). In addition to these
considerations, some courts have weighed other potentially probative
factors, including “the substantiality of the matter at issue”, “the need for
an early determination of the matter”, “the probability of success on the
merits”,7 “the integrity of the correctional system”, and whether the plaintiff
inmate is the only witness anticipated to be called on his or her behalf.
Muhammad, 849 F.2d at 112 (citing and quoting Stone v. Morris, 546 F.3d
7
The courts appear to be divided on the question of whether the probability of a
prisoner’s success on the merits is a factor for the court to consider, with some courts
holding that it is not. See, e.g., Jackson v. Bennett, No. 01 CIV 8971(NRB), 2002 WL
126679, at * 2 (S.D.N.Y. Jan. 30, 2002) (citing Ballard, 557 F.2d at 480-81).
10
730, 735-36 (7th Cir. 1976)). In balancing the plaintiff’s interest in
attending the trial against the government’s interest in maintaining his
imprisonment, the court should also consider available alternatives to
producing the prisoner at trial, including, among other things, presenting
his testimony via video.8 See Rivera, 814 F.2d at 864, n.8; Johnson v.
Toffey, No. 9:01-CV-1907, 2011 WL 3841540, at *4 (N.D.N.Y. Sept. 9,
2011) (D’Agostino, D.J.).
Undeniably, certain of the enumerated factors weigh in favor of
requiring the plaintiff’s presence at trial. The importance of plaintiff’s
ability to pursue a civil rights complaint based upon actions surrounding
his arrest cannot be trivialized. The court is likewise cognizant of the
impact of presenting live testimony, especially where, as here, the trial is
likely to turn on issues of credibility. Hawks, 35 F. Supp. 2d at 467
(recognizing that the fact that credibility is a key issue does not
8
Significantly, while expressing a preference for in-person participation, the
Federal Rules of Civil Procedure provide that “[f]or good cause in compelling
circumstances and with appropriate safeguards, the court may permit testimony in
open court by contemporaneous transmission from a different location.” Fed. R. Civ.
P. 43(a). Remote transmission, however, seems to be regarded as the exception and
not the rule. See Fed.R.Civ. P. 43 advisory committee’s note on 1996 amendments
(“The importance of presenting live testimony in court cannot be forgotten. The very
ceremony of trial and the presence of the factfinder may exert a powerful force for truth
telling. The opportunity to judge the demeanor of a witness face-to-face is accorded
great value in our tradition.”); see also Thorton v. Snyder, 428 F.3d 690, 698 (7th Cir.
2005).
11
necessarily require prisoner’s presence, but is an important factor that
must be considered) (quoting Latiolais v. Whitley, 93 F.3d 205, 207 (5th
Cir. 1996) (other citations omitted)); see also Twitty, 712 F. Supp. 2d at
33; Thornton, 428 F.3d at 697. In his submission to the court, Thomas
has argued that his presence is necessary because he will be the only
witness called to testify on his behalf. Plaintiff’s Mem. (Dkt. No. 87) p. 5.
Here, the preference for live testimony, the fact that he will be the only
witness for his case, and the credibility issues that are likely to arise at trial
are factors weighing in the plaintiff’s favor.
Addressing another of the relevant factors, I conclude that under the
circumstances presented it does not appear that a stay of the litigation in
order to allow plaintiff’s live testimony to be presented following his
release would offer a suitable resolution. Plaintiff’s current earliest
expected release date is more than seventeen years away. This
alternative would therefore neither be just nor promote the interests of the
parties or judicial economy.
Turning to the arguments against issuing the requested writ, the
United States opposes the request primarily on two grounds – cost and
security concerns. In this regard, the USMS has estimated that the
expense of transporting and housing of plaintiff during the trial will be
12
$9,180, see Dkt. No. 49, an amount which, though not in any sense
shocking, is nonetheless not insignificant, particularly given ever-shrinking
budgets for governmental agencies such as the USMS.9 While the costs,
or lack of funds, alone may not be sufficient to justify denying a plaintiff the
opportunity to appear at trial, see Hawks, 35 F. Supp. 2d at 468 (quoting
Greene v. Prunty, 938 F. Supp. 637, 640 (S.D. Cal. 1996)), the expense
combined with security concerns may warrant denial of a plaintiff’s
application, Twitty, 712 F. Supp. 2d at 33 (“expense and security concerns
outweigh the plaintiff’s interest in physically appearing at trial, particularly
in light of the reasonable alternative, that of having the plaintiff appear by
videoconference”).
The most compelling consideration militating against requiring that
the plaintiff be produced for trial is concern for security. As a general
9
That estimate is comprised of 1) $1500, representing the mileage expense and
cost of personnel requirements for transporting the plaintiff from USP Canaan to
Syracuse and returning him following the trial; 2) the expense of housing the plaintiff at
a local jail facility for four days during the trial, in the estimated amount of $480; and 3)
the cost of providing security for lodging and court production of the plaintiff, estimated
at $7200. Dkt. No. 49. With an eye toward reducing this anticipated expense, I have
considered the alternative of conducting a trial at the United States Courthouse in
Binghamton, New York. If I were to do so, this would eliminate the requirement and
cost of housing plaintiff in Syracuse, but USMS deputies would be required to transport
the plaintiff twice daily for approximately sixty miles each way between USP Canaan
and the United States Courthouse in Binghamton. While at first blush this may appear
to be an appealing option, I have rejected it based upon my determination that the cost
savings does not outweigh the inconvenience and increased expense to defendants
and, more importantly, the enhanced security concerns associated with transporting
the plaintiff twice daily over a sixty-mile distance.
13
proposition, I take note of the fact that “‘[w]ritting prisoners to a distant
court entails costs and even danger . . .” Barnes v. Black, 544 F.3d 807,
810 (7th Cir. 2008) (citation omitted). In this case, the inherent danger
present in every case is heightened by the fact that Thomas, as was
previously discussed, is serving a sentence of imprisonment exceeding
twenty-four years based upon his participation in gang-related activity
involving weapons, drugs, and violence; he was convicted upon evidence
that he was a violent, gun-carrying drug dealer whose activities were
aimed at furthering the interests of the Elk Block gang. Thomas has been
designated by the BOP as presenting a high level security risk, which
makes him ineligible for work details or programs outside of the secure
perimeter of the institution in which he is housed. See Straesser Decl.
(Dkt. No. 86-1) ¶¶ 4-9. USP Canaan, where plaintiff is currently housed,
is a high security institution, and there is no other such institution closer to
Syracuse. Id. at ¶ 7. The security risks associated with transporting and
housing plaintiff locally coupled with the expense involved, when
considered in light of the availability of a suitable alternative, as set forth
below, lead me to conclude that it would be an improvident exercise of my
discretion to require that the plaintiff be produced for trial.
Addressing the issue of whether a suitable alternative to plaintiff’s in-
14
person testimony at trial exists, the BOP has informed the court that due
to the risks associated with transporting the high security inmates who are
housed at USP Canaan, that facility possesses the necessary
videoconferencing technology to permit the plaintiff’s participation in the
trial from that remote location; the court also has the capacity to
accommodate such an arrangement.
The court recognizes that “virtual reality is rarely a substitute for
actual presence and . . . even in the age of advancing technology,
watching an event on the screen remains less than the complete
equivalent of actually attending it.”10 Thornton, 428 F.3d at 697 (quoting
United States v. Lawrence, 248 F.3d 300, 304 (4th Cir. 2011)) (alteration
10
“The use of video conferencing in judicial proceedings was further enhanced
with the enactment of the Prison Litigation Reform Act [“PLRA”] of 1996[, 42 U.S.C. §
1997e].” Edwards v. Logan, 38 F. Supp. 2d 463, 466 (W.D.Va. 1999). The PLRA
provides, in relevant part, that
[t]o the extent practicable, in any action brought with respect to prison
conditions in Federal court pursuant to section 1983 of this title, or any
other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility, pretrial proceedings in which the prisoner's
participation is required or permitted shall be conducted by telephone,
video conference, or other telecommunications technology without
removing the prisoner from the facility in which the prisoner is confined.
42 U.S.C. § 1997e(f)(1). While relating to pre-trial proceedings, this provision
suggests a Congressional preference for the reduction of the costs and administrative
burdens of prisoner litigation, which by logical extension would lead to the conclusion
that use of video conferencing in place of an inmate’s appearance at trial is a viable
alternative for saving costs in appropriate circumstances. See Edwards, 38 F. Supp.
2d at 466 and n.3.
15
omitted). The use of video conferencing technology to permit a prisoner
plaintiff’s participation in a trial is not only a potential alternative falling
within the scope of those suggested by the Second Circuit in Rivera, but
appears to present an option which has been and continues to gain
growing acceptance. Edwards, 38 F. Supp. 2d at 466; see, e.g.,Thornton,
428 F.3d at 698 (affirming trial court’s exercise of discretion finding good
cause to conduct inmate’s civil rights trial via video conference); Lopez v.
NTI, LLC, 748 F. Supp. 2d 471, 479-80 (D.Md. 2010) (allowing video
conferencing of foreign resident plaintiff’s testimony upon plaintiffs’
request) (citing cases); Twitty, 712 F. Supp. 2d at 33 (finding expense and
security concerns justified presenting inmates plaintiff’s appearance by
video conference); United States v. Beaman, 322 F. Supp. 2d 1033, 103435 (D.N.D. 2004) (permitting live video testimony of government witness at
criminal trial).
In this instance, both USP Canaan and the court have the capability
of connecting the plaintiff and the court via live video link, which would
allow not only for his virtual presence at trial but his live, albeit remote,
testimony. While surely not the equivalent of plaintiff’s actual presence,
this alternative will sufficiently allow the plaintiff to participate and to testify
live, and the jury to assess his demeanor and credibility. I note, moreover,
16
that the plaintiff has been appointed pro bono counsel who will be present
in the courtroom on his behalf, and providing him with appropriate
opportunities to consult with counsel during the trial will further advance
the plaintiff’s interests in this matter.
In sum, I conclude that the use of videoconferencing technology at
USP Canaan, with the provision of an additional telephone link or other
appropriate means to permit periodic private consultations between
Thomas and his lawyer, presents a reasonable alternative to plaintiff’s
presence at court and strikes a proper balance between plaintiff’s interests
and the countervailing concerns raised relating to cost and security
associated with producing the plaintiff at trial. See Twitty, 712 F. Supp. 2d
at 33.
III.
SUMMARY AND ORDER
While as a prison inmate the plaintiff is not wholly divested of his
right of access to the courts, he has no constitutional right to be present at
a civil trial to be held with respect to his pending civil rights claims.
Although I find that I have the discretion to issue a writ of habeas corpus
ad testificandum to the BOP to require that he be produced at trial, I
conclude that the relevant factors to be considered in deciding whether to
exercise that discretion, including notably the costs arising out of such an
17
order together with security concerns associated with plaintiff’s in-person
participation, outweigh the need for his presence at trial, particularly given
the existence of an acceptable alternative means of presenting his
testimony at trial and permitting him to observe the trial proceedings.
Accordingly, it is hereby
ORDERED as follows:
1)
Plaintiff’s request for the issuance of a writ of habeas corpus
ad testificandum requiring his production at trial and for entry of an order
under the All Writs Act requiring the USMS to house and transport him
during the course of his civil trial in this matter is DENIED.
2)
The court will confer with counsel for the parties and will
schedule a trial in this matter to be held in the near future.
3)
At that trial plaintiff will be permitted to present his testimony,
and to witness the trial via video link, and in addition arrangements will be
made for him to confer privately with his counsel at appropriate intervals
during the course of the trial.
Dated:
November 8, 2011
Syracuse, NY
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