Davis, James v. Meisner, Michael et al

Filing 131

ORDER granting plaintiff James Davis's petitions for writs of habeas corpus ad testificandum for Curtis Daniels (dkt. 108 ), Quenton Thompson (dkt. 109 ) and Robert Gant (dkt. 113 ). Davis's petition for writs of habeas corpus ad testi ficandum for Richard Arnold (dkt. [ 105 ]) and Hipolito Claudio, Jr. ( 106 ) are STAYED until October 5, 2017. Davis's petition for a writ of habeas corpus ad testificandum for Nikko Krohn (dkt. 107 ) is granted in part and denied in part. Signed by Magistrate Judge Stephen L. Crocker on 9/27/2017. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
JAMES JERMAINE DAVIS,
Plaintiff,

ORDER

v.
15-cv-268-slc
MICHAEL MEISNER, et al.,
Defendants.

Pro se plaintiff James Davis is proceeding in this case on (1) Eighth Amendment claims against
prison officers at Columbia Correctional Institution related to how they handled his cell removal and
medical care following a suicide attempt, and (2) a First Amendment claim against defendant Sandra
Ashton related to her issuance of conduct reports. This matter is proceeding to trial on October

16, 2017. In accordance with the Trial Preparation Order (dkt. 91), Davis filed six petitions for
writs of habeas corpus ad testificandum, seeking an order requiring six different inmates to
appear at trial to testify about the excessive force incident and about Ashton’s allegedly false and
retaliatory conduct reports. Davis submitted a declaration swearing that each of them are willing
to testify.
I am granting his three of his petitions without limitation, granting one for video
testimony, and directing Davis to choose between two cumulative witnesses.
Davis’s proposed witnesses are:
1.

Robert Gant, who is incarcerated at Waupun Correctional Institution. Gant is
willing to testify that he overheard Ashton tell another officer that Davis was
going to get his maximum release date extended because of the conduct reports
she wrote him, that Ashton was going to make sure Davis was criminally charged,
(dkt. 113) and that Ashton admitted to Gant that she didn’t care if her acts were
retaliatory (dkt. 120, Tr. at 16-17).

2.

Quenton Thompson, who is incarcerated at the Wisconsin Secure Program
Facility. Thompson is willing to testify about an incident on August 19, 2013,
when he heard Ashton tell Davis that she was going to keep writing conduct
reports against Davis as long as he kept filing grievances against her (dkt. 109).

3.

Curtis Daniels, who is incarcerated at the Waupun Correctional Institution.
Daniels is willing to testify about a conversation he had with Ashton in which she
admitted to Daniels that she had written up Davis for sexual misconduct because
of all the inmate complaints he had filed against her.(dkt. 108; dkt. 116, Tr. at
11-12).

4.

Nikko Krohn, who is in federal custody at USP Canaan in Waymart, PA. Krohn
is willing to testify that he witnessed a July 2013 incident where Ashton issued
Davis a conduct report accusing Davis of trying to touch Ashton with his penis;
according to Krohn, he could see that Davis did no such thing (dkt. 107).

5.

Hipolito Claudio, Jr., who is incarcerated at Columbia. Claudio is willing to
testify about two incidents that took place on October 29, 2013, one involving
Ashton’s claim that Davis attempted to sexually assault her, and the second
involving defendants’ alleged use of excessive force (dkt. 106).

6.

Richard M. Arnold, who is incarcerated at Columbia. Arnold states that he also
is a witness to the October 29, 2013, incidents (dkt. 105) about which Claudio
is willing to testify. Davis claims that Arnold had a different angle of view from
Claudio.

Defendants have filed transcripts of the depositions of five of these witnesses: Robert
Gant (dkt. 120), Richard Michael Arnold (dkt. 119), Hipolito Claudio, Jr. (Dkt. 118), Quenton
Thompson (dkt. 117), and Curtis Daniels (dkt. 116). The transcripts show that Davis cross
examined each of these witnesses about the issues he outlines in his petitions, so it appears that
these transcripts contain all of the information Davis seeks to elicit at trial from these witnesses.
Because Davis will be able to submit admissible portions of those depositions as evidence during
trial, their testimony is not necessary to Davis’s claims.

2

However, I recognize that their in-person testimony carries significant weight and Davis
wants them in front of a jury. As such, I am granting the writs for the in-person testimony of
Gant, Thompson, and Daniels, who each has different testimony to offer.
I will grant Davis’s petition for either Claudio, or Arnold, but not both. Their testimony
is substantively duplicative and therefore cumulative. Davis may choose which one of these
witnesses he wishes to offer corroboration of his version of events to the jury, but he may not
have both testify in person. Not later than October 5, 2017, Davis must notify the court which
of these two witnesses he prefers to call at trial. If Davis does not submit a timely statement of
his choice, then on October 6, 2017, the court will issue a writ for Arnold, simply because the
petition for his testimony has a lower docket number.
I will not grant Davis’s request for in-person testimony from Krohn. While it does not
appear that Krohn’s deposition has been taken, his circumstances are different from the other
proposed witnesses: Krohn is a federal prisoner incarcerated at a facility in Pennsylvania. I will
not impose upon the BOP the cost in time, effort and money to transport Krohn to this court
for his very limited testimony. Instead, I will grant the motion insofar as the court will allow
Krohn to testify telephonically from his facility if, in fact, USP Canaan has the existing
capability and staffing to arrange for video testimony by Krohn during trial. The court will
contact USP Canaan to discuss and arrange this. It is not clear if Krohn is housed in USP
Canaan’s high security penitentiary or its adjacent minimum security satellite camp, a distinction
that might affect the burden imposed on BOP in arranging Krohn’s video testimony. We will
address that concern if it arises.

3

In preparing for trial, Davis should bear in mind that the court incurs costs and
spends a significant amount of time arranging for these witnesses’ appearances. If Davis
decides not to call any of the witnesses at trial, then he must promptly file a notice with
the court of his change in plans.

ORDER

It is ORDERED that:
(1)

Plaintiff James Davis’s petitions for writs of habeas corpus ad
testificandum for Curtis Daniels (dkt. 108), Quenton
Thompson (dkt. 109) and Robert Gant (dkt. 113) are
GRANTED.

(2)

Davis’s petition for writs of habeas corpus ad testificandum for
Richard Arnold (dkt. 105) and Hipolito Claudio, Jr. (106) are
STAYED until October 5, 2017. Not later than October 5, 2017,
Davis must report to the court which of these two witnesses he
wishes to have testify in person at trial. If the court does not
receive a timely report of Davis’s choice, then on October 6, 2017
it will issue a writ for Arnold.

(3)

Davis’s petition for a writ of habeas corpus ad testificandum for
Nikko Krohn (dkt. 107) is GRANTED IN PART and DENIED
IN PART. The court will not order the U.S. Bureau of Prisons to
produce Krohn in person for trial but will require BOP to make
arrangements for Krohn to testify via video conference.

Entered this 26th day of September, 2017.
BY THE COURT:
/s/
STEPHEN L. CROCKER
Magistrate Judge

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