United States District Court, C.D. California
D. PREGERSON UNITED STATES DISTRICT JUDGE.
court adopts the following pre-trial order to resolve the
manner of Plaintiff Derrick Howard's appearance at trial
in this matter.
in pro per, Derrick Howard, is an inmate at United States
Penitentiary Coleman II in Florida. (Dkt. 175). In 2012, Ho
ward filed a pro se complaint against Farmers Insurance
Company, Inc. and Mid-Century Insurance Company
(collectively, Defendants) (Dkt. 3). The claims in his civil
complaint arise from an insurance contract relating to a
rental property in Missouri that Howard owns or owned. (Dkt.
court assumes the parties' familiarity with the
litigation history of this case, which has been recounted in
the court's prior Orders. (See Dkt. 50, 175.).
As relevant here, Plaintiff filed a partial Motion for
Summary Judgment. (Dkt. 175). The sole issue before the court
on summary judgment was whether Plaintiff's rental
property was vacant 30 days prior to July 15, 2005, the date
of the alleged act of vandalism. (Dkt. 175). The court denied
Plaintiffs' partial Motion for Summary Judgment, finding
that a triable issue of fact remained as to the vacancy of
the unit. (Id.)
in this matter is scheduled for September 19, 2017 (Dkt.
200). Because Plaintiff is currently incarcerated in the
state of Florida, the court must now sua sponte
determine the manner in which Plaintiff will appear for trial
and litigate his civil suit.
determining whether it should issue a writ of habeas corpus
ad testificandum . . . the district court must exercise its
discretion based upon consideration of such factors as
whether the prisoner's presence will 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 cause asserted.” Wiggins v.
Alameda Cty., 717 F.2d 466, 468 (9th Cir. 1983) (citing
Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir.
28 U.S.C. § 2241(c)(5) and § 1651(a), a district
court may issue a writ of habeas corpus ad testificandum to
secure the physical presence of a prisoner in court. See
Greene v. Prunty, 938 F.Supp.637, 638 (S.D. Cal. 1996).
In determining whether the writ should issue, a court must
weigh the relative costs and benefits of the prisoner's
physical presence, including “whether the
prisoner's presence will 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 cause asserted.” Wiggins, 717 F.2d at 468.
The result will turn on “whether the probative value of
the testimony justifies the expense and security risk
associated with transporting an inmate-witness to court from
a correctional facility.” Greene, 938 F.Supp.
at 639 (S.D. Cal. 1996). The court considers each of these
factors below in turn.
Substantial Furtherance of Case Resolution
the first factor, a court must consider “not only
whether an inmate-witness's testimony is relevant, but
also, whether such testimony is necessary.”
Id. at 639. Here, as Howard is proceeding pro per in
his own case, the court finds that his presence at trial will
significantly further the resolution of the litigation.
this, under Federal Rule of Civil Procedure 43(a), a court
may permit testimony in open court by live videoconferencing
“[f]or good cause in compelling circumstances and with
appropriate safeguards.” Therefore, the precise
question before the court is whether a live videoconferencing
may be an appropriate substitute for Howard's physical
presence given the countervailing considerations of cost and
security, which are discussed below.