Peters v. Huttel et al

Filing 168

ORDER: The Court DENIES without prejudice Plaintiff's writ of habeas corpus ad testificandum. Plaintiff has not made the necessary showing that Mr. Scott would provide material testimony. However, the Court grants Plaintiff leave to submit a renewed application for a writ of habeas corpus ad testificandum that includes an affidavit that describes the testimony that Plaintiff seeks from Mr. Scott, an explanation of why his testimony is material, and Plaintiff's efforts to contact Mr. Scott. Should Plaintiff wish to renew his request for a writ of habeas corpus ad testificandum, he must do so on or before April 20, 2023. The Court RESERVES JUDGMENT on Plaintiff's request to designate Mr. Scott by depositio n at trial, given that such issue is currently being briefed upon in the motions in limine. The Clerk of the Court is kindly directed to mail a copy of this order to pro se Plaintiff and show service on the docket. ( Motions due by 4/20/2023.) (Signed by Judge Nelson Stephen Roman on 4/7/2023) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
TYRONE PETERS,
Plaintiff,
-againstCORRECTION OFFICER HUTTEL et al.,

4/7/2023

No. 15-cv-9274 (NSR)
ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge:
By way of background, a 6-day jury trial is scheduled to begin on May 15, 2023. The
remaining claims to be tried before a jury is pro se Plaintiff Tyrone Peters’ (“Plaintiff”) Eighth
Amendment excessive use of force claim against Correction Officer Daniel Huttel and failure to
intervene claims against Correction Officer Jeffrey Erns and Sergeant Duane Malark. (See Joint
Pretrial Statement, ECF No. 162.) The claims arise out of an incident that occurred on November
21, 2012, while Plaintiff was incarcerated at Green Haven Correctional Facility. (See id.)
The Court is in receipt of Plaintiff’s affirmation of service, which attaches a copy of his
application for writ of habeas corpus ad testificandum, dated March 28, 2023. 1 (ECF No. 167.)
In Plaintiff’s writ of habeas corpus ad testificandum, Plaintiff seeks to secure Timothy Scott (“Mr.
Scott”) as a witness. (See id.) Plaintiff states that “Mr. Scott is a material witness whose testimony
is paramount to Plaintiff’s case.” (Id.) In the alternative, Plaintiff requests to use Mr. Scott’s
deposition at trial. (Id.)
Plaintiff states, and a search through the N.Y. State Department of Corrections and
Community Supervision incarcerated lookup website confirms, that Mr. Scott (DIN #84A0829)

As of the date of this memorandum endorsement, the Court has not yet received the actual application for
writ of habeas corpus ad testificandum.

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was released from Wende Correctional Facility on June 5, 2019 and is now out on parole. Plaintiff
also states that his attempts to contact Mr. Scott have been unsuccessful.
“[A] district court has discretion to issue a writ of habeas corpus ad testificandum to compel
a parolee's attendance when “necessary to bring him into court to testify or for trial.” Davidson v.
Desai, 964 F.3d 122, 125 (2d Cir. 2020). In addition, “the party seeking a writ of habeas corpus
ad testificandum bears the burden of demonstrating necessity.” Id. at 131. “[A] writ of habeas
corpus ad testificandum is an “extraordinary measure” that should be taken only when alternatives
are insufficient.” Id. at 131 (internal quotations and citations omitted).
The Court notes that the parties are currently briefing on their motions in limine, and based
on Defendants’ opening papers, Defendants are seeking to preclude the deposition designation of
Mr. Scott. (See ECF No. 164 at 9.)
The Court DENIES without prejudice Plaintiff’s writ of habeas corpus ad testificandum.
Plaintiff has not made the necessary showing that Mr. Scott would provide material testimony. See
United States v. Paracha, No. 03-CR-1197 (SHS), 2018 WL 3238824, at *2 (S.D.N.Y. July 3,
2018) (denying a writ of habeas corpus ad testificandum because party failed to make a necessary
showing that the witness would provide material testimony.”) Plaintiff merely states in his
application that “Mr. Scott is a material witness whose testimony is paramount to Plaintiff’s case.”
(See ECF No. 167.) However, the Court grants Plaintiff leave to submit a renewed application for
a writ of habeas corpus ad testificandum that includes an affidavit that describes the testimony that
Plaintiff seeks from Mr. Scott, an explanation of why his testimony is material, and Plaintiff’s
efforts to contact Mr. Scott. Should Plaintiff wish to renew his request for a writ of habeas corpus
ad testificandum, he must do so on or before April 20, 2023.

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The Court RESERVES JUDGMENT on Plaintiff’s request to designate Mr. Scott by
deposition at trial, given that such issue is currently being briefed upon in the motions in limine.
The Clerk of the Court is kindly directed to mail a copy of this order to pro se Plaintiff
and show service on the docket.
Dated: April 7, 2023
White Plains, NY

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9274
CV/CR
15
xx --Docket in case#--As: Pro Se Plaintiff Letter to the Court
Date: 4 I 3 I 2023

4/3/2023