Two appeals, consolidated for decision, questioning the power of a district court to issue a writ of habeas corpus ad testificandum ordering the federal government to guard and safe-keep a state inmate during the term of the writ. Depree v. Walters is affirmed. Rivers v. Santirocco is remanded for proceedings consistent with this opinion.
Lumbard, Oakes, and Kearse, Circuit Judges.
These two appeals, consolidated for decision, present the same question: Whether a federal district court, having issued a writ of habeas corpus ad testificandum, has the power to direct the United States Marshals Service to take custody of a state prisoner produced under the writ, and the United States Bureau of Prisons to house him, during trial of that prisoner's civil rights action against state officials under 42 U.S.C. § 1983. We believe that it does.
Hector Rivera, an inmate of the Clinton Correctional Facility in the custody of the New York State Department of Correctional Services (DOCS), filed his civil rights action in the Southern District on January 3, 1983. As amended in 1985, his complaint alleged that he was denied medical care for a broken ankle for four hours after his arrest in 1981. He named as defendants four New York City police officers and the New York City Police Department.
On May 21, 1986, Rivera's appointed counsel filed a motion requesting the court to order Rivera transferred from Clinton to the Metropolitan Correctional Center (MCC), a federal facility in New York City, five days prior to trial and housed there until the trial concluded. Rivera's counsel requested the transfer to allow him to meet with Rivera in preparation for trial and to facilitate Rivera's presence and testimony at the trial. On May 23, 1986, Judge Cannella signed a writ of habeas corpus ad testificandum. The writ ordered DOCS to bring Rivera to the MCC on June 4, 1986, to transport him between the MCC and the federal courthouse during the trial scheduled to begin on June 9, and to "bear the cost of implementation of the terms of this writ."
On May 29, 1986, DOCS wrote to Judge Cannella protesting his order.*fn1 On May 30, the United States Attorney's Office, counsel for the United States Marshals Service and the United States Bureau of Prisons (collectively "the federal intervenors"), responded, also by letter, claiming that the court had no authority to order the MCC to house the inmate when the federal government was not a party to the suit. After a conference chaired by former Chief Judge Motley failed to resolve the dispute, Judge Cannella permitted DOCS and the federal intervenors to intervene and issued a writ of habeas corpus ad testificandum directing the state to maintain custody of the prisoner during trial. Judge Cannella reserved decision until the trial on the state's application for an order requiring the Marshals to guard Rivera in the courthouse. Trial has been postponed pending this appeal.
Mark DuPree, presently confined at Attica Correctional Facility, brought suit in the Southern District under 42 U.S.C. §§ 1981, 1983, and 1985(3) and the Eighth and Fourteenth Amendments against eight New York State correctional officers and the warden of Ossining Correctional Facility. He alleged that he had been "struck by one or all of the defendants Correctional Officers, and did receive threats of further physical harm." On September 9, 1986, Judge Sweet issued an order directing the superintendent of the state facility where DuPree was then incarcerated to produce DuPree in court for trial on September 15. The order required the state to transport DuPree back and forth from a state facility to court each day during trial.
On September 15, state correctional officers complied with the order and produced DuPree before the court. Through counsel, DOCS advised Judge Sweet that it wished the Marshals Service to assume custody. The state guards further advised the court that if they were required to maintain custody, they did not believe that it would be safe to remove DuPree's restraints; they claimed to be unfamiliar with the layout of the courthouse and noted DuPree's history of violent behavior. After soliciting the views of the United States Attorney's Office, which is located in a building annexed to the courthouse, the court ordered custody transferred to the Marshal during the day, and to the Bureau of Prisons at night. On November 5, 1986, the court permitted DOCS and the federal intervenors to intervene, and, on the same day, the federal intervenors appealed. Judge Sweet postponed trial pending appeal of this issue.
In Pennsylvania Bureau of Correction v. United States Marshals Service, 474 U.S. 34, 106 S. Ct. 355, 88 L. Ed. 2d 189 (1985), the Supreme Court faced an issue similar to the one now before us. Writing for an eight-member majority,*fn2 Justice Powell held that a district court did not have the power to compel the United States Marshals Service to transport state prisoners from state correctional facilities to the federal courthouse to testify in a § 1983 action by a state prisoner against county officials. After noting that the Marshals have a duty to comply with the lawful orders and writs of the federal courts, under 28 U.S.C. §§ 567 and 569(b), the court found that these statutes do not provide a separate source of judicial authority to issue such orders or writs. "The courts' authority to issue such writs, however, must derive from some independent statutory source." 106 S. Ct. at 359. Starting his search for such a source with the federal habeas statute, 28 U.S.C. § 2243,*fn3 Justice Powell noted that it specifically commanded the custodian of the prisoner -- the state of Pennsylvania -- to produce the prisoner in court, "but extends that duty to no other." Id. As the Marshals were not custodians of the inmate at the time the writ issued nor was the federal government a party to the litigation, the habeas statute did not provide a basis for the court's order compelling the Marshals to produce the inmate before the court.
The Court also examined the state's claim that the All Writs Act, 28 U.S.C. § 1651(a),*fn4 authorized the court's order, and concluded: "The All Writs Act is a residual source of authority to issue writs that are not otherwise covered by statute. Where a statute specifically addresses the particular issue at hand, it is that authority, and not the All Writs Act, that is controlling." Id. at 361. Because the habeas statute specifically directed the custodian to produce the inmate, it preempted use of the All Writs Act. The Court therefore found no authority for the district court's order, and affirmed the Third Circuit's decision reversing it. Pennsylvania Bureau teaches two lessons: A district court's power to issue a writ must derive from an "independent statutory ...