Allen, Raequon v. Mahoney, David et al

Filing 126

ORDER denying without prejudice 83 , 125 Motions for Writ of Habeas Corpus ad testificandum; denying as moot 98 Motion to Compel. Signed by District Judge William M. Conley on 1/18/2019. (nln),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
RAEQUON DEWRELL ALLEN,
Plaintiff,
v.

ORDER
16-cv-410-wmc

DEPUTY RICHARDSON,
Defendant.
The court is in receipt of plaintiff’s motion for writs of habeas corpus ad
testificandum, renewing his prior request to subpoena for appearance at trial: Vernon M.
Richardson, Richard L. Johnson, Kenneth T. Sanders, Andre L. Sykes, and Willie U. Mills. 1
Plaintiff represents that these individuals witnessed the events on January 26, 2016 in the
Dane County Jail’s Cellblock 607. (Dkt. #84 at ¶¶ 2-4, 7, 9.) He further represents that
all of proposed witnesses are housed by the Wisconsin Department of Corrections
(“DOC”) and refuse to testify. (Dkt. ##83, 125). The latter representation appears to be
based on plaintiff having “sent several letters to these witnesses” without any response.
(Dkt. #84 at ¶ 13.) Absent evidence to the contrary, the court will normally accept this
as sufficient proof these witnesses are refusing to testify voluntarily.
Notwithstanding plaintiff’s belief to the contrary, however, it appears that none of
these witnesses are in the custody of the DOC. To the contrary, a DOC Offender Search
indicates: there is no offender named Vernon M. Richardson; two Richard L. Johnsons are

In his original request, plaintiff also sought to subpoena Daymon J. Frazier. (Dkt. #83.) Frazier
has since been deposed. (Dkt. #97.) If plaintiff would like to request a writ for the testimony of
Frazier, he must alert the court. Otherwise, either side may proffer parts of Frazier’s testimony if
timely disclosed in advance of trial as contemplated in the pretrial conference order (dkt. #29).
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now on active community supervision, as are Kenneth T. Sanders and Andre Sykes; and
Willie U. Mills has absconded.

Accordingly, none of these witnesses appears to be

incarcerated currently.
As laid out in the trial preparation order, in order to obtain the attendance of
unincarcerated witnesses who refuse to testify voluntarily, a party must establish that:
(1) the witness refuses to testify voluntarily; (2) the party has arranged for service or is
unable to do so and requires the assistance of the United States Marshal or other person
appointed by the court; and (3) the party is prepared to tender a check or money order
payable to the witness to cover the daily witness fee, the witness’s mileage, and any
necessary room and board costs for the witness’s appearance at trial. (Dkt. #104 at 20.)
Plaintiff has made the second of these three showings. (See dkt. #84 at ¶ 14.) However,
he has yet to show that these witnesses refuse to testify, since his only basis appears to be
mailing letters to the DOC without receiving a response, which is hardly surprising if these
individuals are no longer in custody. Assuming plaintiff can clear this hurdle, he must also
demonstrate that he is prepared to pay the requisite witness fees. Specifically, before the
Marshal can serve a subpoena, plaintiff must provide the necessary check or money order.
Consistent with the above, plaintiff’s request to subpoena Vernon M. Richardson
and Willie U. Mills is DENIED absent (1) information as to their whereabouts, (2) proof
of attempts to get their cooperation and (3) providing an appropriate check or money
order.

As to Johnson, Sanders and Sykes, since they are all doing their community

supervision in Madison, plaintiff need only show a refusal to voluntarily testify and a

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check/money order for each. 2 Once plaintiff provides the witness fees, the court will issue
the subpoenas and direct the Marshal to serve them. Until that time, the remainder of
plaintiff’s request is DENIED WITHOUT PREJUDICE.
Further, plaintiff previously filed a motion to compel the production of documents
before the discovery cutoff on December 21, 2018. (Dkt. #98.) Defendant opposed the
motion contending it was: premature since the production was not yet due; untimely since
the request for documents was served within thirty days of the discovery deadline; and
moot since defendant has answered plaintiff’s requests. (Dkt. #99 at 4.) Plaintiff has filed
nothing challenging any of these seemingly valid responses. Accordingly, plaintiff’s motion
to compel (dkt. #98) is DENIED AS MOOT.
Entered this 18th day of January 2019.
BY THE COURT:
/s/
__________________________________
WILLIAM M. CONLEY
District Judge

As noted, there are two Richard L. Johnsons. One is doing community service in Madison, the
other in Fond Du Lac. Additional information is needed to determine which Johnson is the one
with relevant information.
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