Griffin v. Hooks et al

Filing 172

ORDER that the parties shall have 6 months from this Order to complete the depositions of their trial witnesses in accordance with the terms of this Order, including the cost provisions set forth above. IT IS FURTHER ORDERED that counsel for Defendants shall work with the New Mexico Corrections Department and the Penitentiary of New Mexico as necessary to ensure compliance with this Order. Signed by Chief Judge Martin Reidinger on 8/1/2022. (Pro se litigant served by US Mail.) (rhf)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
CIVIL CASE NO. 3:19-cv-00135-MR

MATTHEW JAMES GRIFFIN,

)
)
Plaintiff,
)
)
vs.
)
)
ERIK A. HOOKS, et al.,
)
)
Defendants.
)
_______________________________ )

ORDER

THIS MATTER is before the Court sua sponte.
I.

FACTUAL AND LEGAL BACKGROUND
The pro se Plaintiff is a prisoner of the State of New Mexico currently

serving a life sentence for first degree murder. He filed this action pursuant
to 42 U.S.C. § 1983 against numerous prison officials related to events
allegedly occurring while he was confined at Alexander Correctional
Institution in Taylorsville, North Carolina. [Doc. 1]. At the time, Plaintiff was
confined in North Carolina pursuant to an interstate corrections compact. He
has since been transferred back to New Mexico and is currently incarcerated
at the Penitentiary of New Mexico in Santa Fe, New Mexico, which is over
1,500 miles from this Court.

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After granting several extensions of the dispositive motions deadline
and denying Defendants’ final request for more time [Doc. 149], the Court
referred the case to the Honorable W. Carleton Metcalf, Magistrate Judge,
for a judicial settlement conference [Doc. 153]. After some delay in the
conduct of that proceeding, the parties reached an impasse. [3/22/2022
Docket Entry; see Doc. 155]. Thus, this matter is now ripe for trial.
Given Plaintiff’s incarceration in New Mexico, the Court must consider
options in conducting Plaintiff’s trial. An incarcerated litigant in a § 1983
action does not have an absolute right to be physically present at the trial of
his case. Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 112 (4th
Cir. 1988).

“[I]f securing the prisoner’s presence, at his own or public

expense, is determined to be infeasible,” the court must consider “other
reasonably available alternatives.” Edwards v. Logan, 38 F. Supp. 2d 463,
467 (W.D. Va. 1999) (citing Muhammad, 849 F.2d at 111, 113).

In

considering other reasonably available alternatives, the Court should
consider the following factors:
(1)

Whether the prisoner’s presence will substantially further
the resolution of the case, and whether alternative ways of
proceeding, such as trial on depositions, offer an
acceptable alternative.

(2)

The expense and potential security risk entailed in
transporting and holding the prisoner in custody for the
duration of the trial.
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(3)

The likelihood that a stay pending the prisoner’s release
will prejudice his opportunity to present his claim, or the
defendant’s right to a speedy resolution of the claim.

Id. at 113. The second factor includes the question of whether the Court has
jurisdiction to order the law enforcement officials of another state (in this
case, New Mexico) to deliver the Plaintiff to the Court for trial and/or whether
such officials could maintain his detention or incarceration during such trial.
“If, after balancing the factors set forth in Muhammad, the court finds that the
costs and security concerns posed by the trial are too great, the court has
the discretion to try the case without the plaintiff's attendance.” Edwards, 38
F. Supp. 2d at 467. Other alternatives include Plaintiff’s attendance through
videoconferencing or, as noted, by deposition. Joyner v. Byington, No. 7:15cv-00526, 2017 WL 807208 (W.D. Va. Mar. 1, 2017) (ordering attendance
by videoconferencing); Edwards, 38 F.Supp.2d 463 (same); Clay v. Drew,
66 F.3d 315 (4th Cir. 1995) (affirming Plaintiff’s attendance at trial by reading
his deposition where he failed to appear after being ordered to pay expenses
of transport). See Peterson v. Nadler, 452 F.2d 754, 756-57 (8th Cir. 1971)
(trial on deposition preferable to indefinite stay).
The Court ordered the parties to address the foregoing factors and
propose how they want the trial to proceed.

[Doc. 162]. The Court

specifically directed Plaintiff to address whether he can pay the costs, if any,
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of any of the alternative(s) that he proposes. [Id.]. The Court also directed
the parties to advise the Court whether officials at Plaintiff’s place of
incarceration are willing to assist with attendance by videoconferencing, if
such alternative is proposed.
The parties responded to the Court’s Order. [Docs. 165, 169]. In his
response, Plaintiff asks the Court to appoint the North Carolina Prisoner
Legal Services (NCPLS) to represent him for trial, to require Plaintiff’s
transport for trial at Defendants’ expense, and to set an evidentiary hearing
to address the manner and conduct of trial and the feasibility of Plaintiff’s
presence. [Doc. 165 at 17]. As grounds for this relief, Plaintiff cites that he
has a serious vision impairment, that he is an indigent prisoner, that
Defendants procured Plaintiff’s absence from this District, and that trial by
video of any type is not an acceptable substitute for live witnesses. [Id. at 25].

Plaintiff asserts that this Court “has discretion to order a prisoner

produced in a civil case,” and argues that “the jury must be able to see and
hear Plaintiff and his witnesses in order to evaluate their credibility based
upon their demeanor while testifying.”1 [Id. at 6-7]. Plaintiff contends that it

Plaintiff states that his trial witnesses are prisoners and references 22 other prisoners
he named in his Complaint, which he alleged were subject to misconduct similar to that
experienced by Plaintiff. [Doc. 165 at 8 (citing Doc. 13 at ¶ 55)].
1

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would be unfair to have Defendants’ proof presented in person and Plaintiff’s
presented through video. [See id. at 5-8]. Plaintiff also argues he must be
present “to manage the presentation of his proof, cross-examine adverse
witnesses, present a rebuttal case to the Defendants [sic] evidence, object
to improper evidence or arguments and give opening and closing
arguments.” [Id. at 7-8]. Plaintiff claims that because it was feasible to
transport him to North Carolina in 2015 it is also feasible to transport him to
North Carolina for trial. [Id. at 14]. Plaintiff, however, failed to address
whether he can pay the cost of his transport as directed by the Court. [See
Doc. 162 at n.2].
Defendants, on the other hand, argue that the trial in this matter should
be proceed by video depositions.2 [Doc. 169 at 2]. As grounds, Defendants
argue that security risks, expense, and relative lack of meaningful effect of
Plaintiff’s presence on resolution of the case militate in favor of trial by video

In support of their response, Defendants submit documents that were filed in Griffin v.
Perry, Civil Case No. 1:04-cv-00654-MCA-WDS, Docs. 203, 203-1 to 203-6. These
documents include a statement by Defendant Kitchens in that matter addressing why the
Court should not permit the Plaintiff to appear personally at his trial and numerous exhibits
reflecting Plaintiff’s violent, threatening, calculating, opportunistic, and unpredictable
behavior inside and outside of prison, including during prison transport. [Doc. 169-2 at 111]. These documents also include affidavits by two prosecutors who decided not to
prosecute Plaintiff for crimes he committed in prison because he was “always considered
to be extremely dangerous” and an “extreme security risk” who was “too dangerous to
bring to court” and “it would be extremely expensive to put in place security measures to
guard against Mr. Griffin’s violent propensities.” [Id. at 178-181].
2

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deposition.

[Id. at 4-8].

Defendants also reason that a stay of the

proceedings pending Plaintiff’s release is untenable given Plaintiff’s life
sentence. [Id. at 8]. Counsel for Defendants contacted the New Mexico
Corrections Department and has been advised that the facility where Plaintiff
is housed would be able to accommodate an Order from this Court requiring
the matter to proceed by the presentation of video depositions or
videoconferencing. [Id. at 9-10].
Defendants contend that transport of Plaintiff from New Mexico to
North Carolina for trial would not be feasible from a financial, logistical, and
security perspective. [Id. at 6]. As to security risks attendant to Plaintiff’s
transport for trial, Defendants point to Plaintiff’s crimes of conviction, his
numerous transfers to high-security state facilities, his conviction for
numerous assaults on prison employees while incarcerated, and his
proclivity for and skill at fashioning weapons out of household objects and
then hiding them on his person and attacking people when the opportunity
presents. [Doc. 169 at 5-6]. Plaintiff was convicted of and is serving a life
sentence for first degree murder, armed robbery with a deadly weapon,
aggravated burglary, and tampering with evidence. Since his conviction in
1991, Plaintiff has been transferred to high-security facilities in Oklahoma,
Nevada, New Mexico, Minnesota, California, Virginia, and North Carolina.
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Plaintiff has been transferred in and out of these various institutions, at least
in part, because of his behavior in prison. For instance, Plaintiff seriously
maimed a New Mexico prison guard with a razor blade attached to a string
on his molar that Plaintiff had swallowed and then regurgitated. Although
housed in North Carolina for only a short time, Plaintiff was found guilty of
numerous infractions, including weapons possession, assaulting staff,
threatening to harm, fighting, and refusing to submit, among other things.
[Doc. 169 at 5; see Doc. 169-1 at 1-7, Doc. 169-2 at 5].
With 15 Defendants in this action and multiple claims, Defendants
argue that a trial may last more than a week. Beyond the expense of
transporting Plaintiff to North Carolina, housing Plaintiff in an appropriate
facility and transporting him daily to the courthouse would entail significant
cost. Plaintiff’s transport here may also very well bring additional litigation.
[Doc. 169 at 6-7]. Plaintiff is a prodigious filer of lawsuits, including three
other lawsuits against prison officials arising out of alleged events during his
short time in North Carolina, including one action arising out of events during
transport.

Griffin v. Daves, Civil Case No. 5:19-ct-03040-M (transport);

Griffin v. Bryant, Civil Case No. 5:17-ct-03173-M; Griffin v. Hollar, Civil Case
No. 5:19-cv-00049-MR.

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Defendants also argue that Plaintiff’s presence at trial would not further
the resolution of the case more than trial by deposition or video conference.
Defendants note that many of the named Defendants are or were senior
North Carolina Department of Public Safety (NCDPS) officials with whom
Plaintiff never interacted and argue that Plaintiff would be able to question
any witnesses or Defendants just as effectively by video deposition as in
person. [Doc. 169 at 7-8].
II.

ANALYSIS
As a threshold matter, the Court looks at whether it has the authority

to issue a writ ordering New Mexico officials to release Plaintiff for a trial in
this matter. District courts are authorized to issue writs of habeas corpus ad
testificandum for prisoners when necessary to bring them to court to testify
or for trial. See 28 U.S.C. § 2241(c)(5). This authority is not territorially
limited. Mohammed, 849 F.2d at 114 (citing Carbo v. United States, 364
U.S. 611, 81 S.Ct. 338 (1961)); ITEL Capital Corp. v. Dennis Min. Supply
and Equipment, Inc., 651 F.2d 405, 406-7 (5th Cir. 1981) (citing Carbo).
Historically, however, “the U.S. Marshals and state law enforcement have
periodically disagreed over who is to bear the burdens and costs of prisoner
transportation in such instances.” Williams v. Beauregard Parish, No. 2:08cv-355, 2014 WL 1030042, at *1 (W.D. La. Mar. 17, 2014). According to the
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Fifth Circuit, once a district court determines that a prisoner’s presence is
essential, such disagreements or lack of transportation funds or personnel
do not justify refusal to issue the writ. See Ballard v. Spradley, 557 F.2d 476,
481 (5th Cir. 1977). District courts, however, are not empowered to order
the U.S. Marshals Service, when neither a custodian of the prisoner nor a
party to the litigation, to bear the cost of producing the prisoner in federal
court, even if only from the local jail to a nearby federal courthouse.
Pennsylvania Bureau of Correction v. U.S. Marshals Service, 474 U.S. 34,
106 S.Ct. 355 (1985). In accord with Ballard, however, it appears that such
authority rests, at least in part, on the Court’s determination that the
prisoner’s presence is “essential.”
Although the Court has some limited authority to order Plaintiff’s
transport here from New Mexico, and notwithstanding who would bear the
cost for such transfer, the question remains whether it should. As noted,
Mohammed guides the Court’s decision here. The Court must consider: (1)
Whether Petitioner’s presence will substantially further the resolution of the
case, and whether alternative ways of proceeding, such as trial on
depositions, offer an acceptable alternative (i.e., whether Plaintiff’s presence
is essential); (2) the expense and potential security risk entailed in
transporting and holding Petitioner in custody for the duration of the trial; and
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(3) the likelihood that a stay pending the Petitioner’s release will prejudice
his opportunity to present his claim, or Defendants’ right to a speedy
resolution of the claim. Id. at 113. These factors weigh heavily against
ordering Petitioner’s presence for trial. Plaintiff’s physical presence at the
trial will not substantially further resolution of this case any more than
alternative means of presenting evidence. Plaintiff argues that he must be
present to in the courtroom “to manage presentation of the case.” [Doc. 165
at 8]. If this matter proceeded by video depositions, however, the Court
would plan the presentation of the evidence submitted by both parties in
advance and administer it during the trial after hearing the parties’ arguments
and preferences therefore at the pretrial conference.
As to the second Mohammed factor, the expense and security risk of
transporting Plaintiff and holding him in North Carolina for the duration of the
trial are self-evident. Plaintiff is currently incarcerated over 1,500 miles from
this District.

Plaintiff argues that because he was transferred to North

Carolina once he can be transported there again for trial. While technically
true, this logic ignores the practical realities of the situation. Plaintiff has
been transferred in and out of high-security facilities all over the country
throughout his over 30-year incarceration in significant part due to and as a
means to diffuse the impact of his violent and extreme behavior. Requiring
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taxpayers to bear the expense of Plaintiff’s transport to a trial that arose out
of one such transfer is of questionable prudence. Moreover, Plaintiff failed
to advise the Court whether he can pay for his transport.
Much more concerning than the financial hurdle of Plaintiff’s presence
at trial are the substantial security risks attendant to his transport and
maintenance in this District during trial. Plaintiff has proven himself to be a
great and serious threat to those around him both in and outside of prison
walls. He calculates and strategizes, waiting for the perfect moment to attack
his unsuspecting victims.3

Of course, security measures necessary to

mitigate these risks would necessarily be elaborate and expensive and
Plaintiff has shown it nearly impossible to mitigate all reasonable risk.
As to the final Mohammed factor, a stay in this matter is not tenable.
While Plaintiff does not address this factor, Defendants provide that Plaintiff’s
life sentence consists of a term of imprisonment of 30 years plus an
additional 50 years, which means release in or around 2071. Plaintiff was
born in 1963 and would be 108 years old on his release. [See Griffin v,
Hollar, Civil Case No. 5:19-cv-00049-MR, Doc. 89-12 at 2].

Plaintiff’s

opportunity to present his claim would undoubtedly be prejudiced as would

The documents provided by Defendants in support of their response are replete with
support for this conclusion and are not susceptible to summary here. [See Docs. 169,
169-1, & 169-2].
3

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Defendants’ right to a speedy resolution of the claims by a stay pending
Plaintiff’s release.
Given all these considerations, the Court will order that the trial in this
matter proceed by video deposition of all the parties’ witnesses. Plaintiff’s
deposition shall be narrative in form and will be admissible pursuant to
Federal Rule of Civil Procedure 32(a)(4)(c) due to Plaintiff’s imprisonment.
The other depositions taken in this matter for trial will be admissible pursuant
to Rule 32(a)(4)(e). The Court will allow the parties six (6) months from this
Order to complete these depositions. The depositions are de bene esse
depositions, not discovery depositions, and they shall be recorded on video.
The Federal Rules of Evidence and this Court’s Local Civil Rules govern the
conduct of these depositions.

All objections to the substance and/or

admissibility of any testimony or evidence offered in these depositions shall
be stated and preserved on the record as if the testimony were offered at
trial. Once the depositions are completed, the Court will conduct a pretrial
conference at which time it will consider any objections to deposition
testimony and motions in limine.

The exact logistics of trial will be

determined by the Court as this matter progresses.4

The parties should anticipate that, after completion of the pretrial conference, they will
have the opportunity to submit opening and closing statements by video, subject to
objections and modification. The Court anticipates that the parties will submit to the Court
4

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Defendants shall bear all costs of conducting the video depositions for
Defendants’ witnesses. Plaintiff shall, to the extent he has any resources,
pay the cost of the video depositions of his witnesses and Defendants shall
pay the balance of these costs.
The situation in its entirety is of course not ideal. The Court, however,
informed by its experience through the COVID-19 pandemic, is assured that
alternative means of accomplishing its purpose and objectives are often as
efficacious and purposeful as traditional means. Moreover, the Court cannot
make this decision in a vacuum. The Court cannot in good conscience order
Plaintiff’s presence at the trial in this matter in the face of the attendant risks
and considerations, particularly where trial by video deposition offers a
suitable and reasonable alternative.
III.

CONCLUSION
For the foregoing reasons, the trial in this matter will proceed for all

parties by video depositions of all witnesses in accordance with the terms of
this Order. Additional details regarding the conduct of trial will be timely
provided.

ORDER

any “for cause” questions to be posed by the Court at jury selection.
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IT IS, THEREFORE, ORDERED that the parties shall have six (6)
months from this Order to complete the depositions of their trial witnesses in
accordance with the terms of this Order, including the cost provisions set
forth above.
IT IS FURTHER ORDERED that counsel for Defendants shall work
with the New Mexico Corrections Department and the Penitentiary of New
Mexico as necessary to ensure compliance with this Order.
IT IS SO ORDERED.

Signed: August 1, 2022

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