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ATKINS v. CITY OF NEW YORK

July 7, 1994

JAMES ATKINS, Plaintiff,
v.
THE CITY OF NEW YORK, NEW YORK CITY POLICE DEPARTMENT, POLICE OFFICERS JUSTICE, Shield No. 10274, TUDOR, Shield No. unknown, SERGEANT BETTERLY, Shield No. unknown, and DETECTIVE WILLIAMS, Shield No. unknown, individually and in their official capacities as Police Officers of the CITY OF NEW YORK, Defendants.



The opinion of the court was delivered by: JOANNA SEYBERT

 SEYBERT, District Judge:

 This is a civil-rights action brought under 42 U.S.C. § 1983 against the City of New York, the New York City Police Department, and four separate New York City police officers and detectives. Defendants now move for an order, pursuant to 28 U.S.C. §§ 1651(a) and 2241(c)(5), granting their request for a writ of habeas corpus ad testificandum directing the production of an incarcerated non-party witness named James Griswald to testify at their trial. Plaintiff does not oppose this motion. For the reasons discussed herein, defendants' motion is granted.

 BACKGROUND

 Plaintiff James Atkins alleges, inter alia, that on February 26, 1990, the defendant police officers arrested him without probable cause as he walked down a street, and proceeded to beat him. He farther alleges that the City of New York negligently trained and hired the police officers in question, and that such coarse of conduct contributed to their behavior. *fn1" Plaintiff asserts civil-rights claims against each of the defendants under 42 U.S.C. § 1983. *fn2" The action is presently on the Court's 72-hour trial-ready list.

 Defendants now move for an order, pursuant to 28 U.S.C. §§ 1651(a) and 2241(c)(5), granting their motion for a writ of habeas corpus ad testificandum for the production of a non-party witness, James Griswald, to testify at trial. Mr. Griswald is presently incarcerated for various drug-possession offenses in Bayside State Prison in Leesburg, New Jersey, having been sentenced in 1993 to a term of five years with no opportunity for parole before three years. The writ would also provide for Mr. Griswald's temporary detention at the Metropolitan Correctional Center ["MCC"] in Manhattan until such time as the Court directs that the writ has been satisfied.

 Defendants assert that Griswald's in-court testimony is vital to their defense because he is expected to testify that he accompanied the plaintiff to the incident in question, and that plaintiff intended to engage in a drug transaction. Defendants further argue that the expected effectiveness of Griswald's in-court testimony would exceed substantially the probative value of introducing his deposition testimony into evidence. *fn3" They moreover assert that their motion should be granted at this time because the case is currently on the Court's 72-hour trial-ready list, and the New Jersey correctional system would require 48 hours to arrange the transfer of Mr. Griswald.

 Defendants make two qualifications to their motion that are of note. First, defendants request that the writ not issue until after the Court has established a firm trial date. Second, according to the terms of the proposed writ that has been submitted in conjunction with their motion, the City of New York would bear both the transportation costs of the New Jersey Department of Corrections, and the reasonable costs incurred by the United States Marshal and the United States Bureau of Prisons in implementing the terms of the writ.

 DISCUSSION

 28 U.S.C. § 2241(c)(5), in tandem with 28 U.S.C. § 1651(a), *fn4" permit a federal court, when necessary, to issue a writ of habeas corpus ad testificandum. The purpose of this writ is to direct the custodian of a prisoner to produce such prisoner for appearance in court. See United States v. Gotti, 784 F. Supp. 1011, 1012 (E.D.N.Y. 1992), aff'd sub nom. United States v. Locascio, 6 F.3d 924 (2d Cir. 1993), cert. denied, 114 S. Ct. 1645 (1994).

 The decision to issue a writ of habeas corpus ad testificandum is committed to the sound discretion of the district court. *fn5" See Haywood v. Hudson, CV-90-3287 (CPS), 1993 WL 150317, at *1 (E.D.N.Y. Apr. 23, 1993). The factors that a court should consider in exercising this discretion include:

 
[1] whether the prisoner's presence will substantially further the resolution of the case, [2] the security risks presented by the prisoner's transportation and safekeeping, and [3] whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted.

 Id. (quoting Ballard v. Spradley, 557 F.2d 476, 480 (5th Cir. 1977)). In addition to the foregoing items, a court should consider any jurisdictional limitations arising from the inmate's incarceration in a prison located in a state other than that in which the district court sits. See 28 U.S.C. § 1651(a) ("The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.") (emphasis added).

 Turning to the instant case, defendants have attested that Griswald will be incarcerated until at least 1996, and that he has not committed an offense involving physical violence. Accordingly, the discussion that follows shall consider primarily whether Griswald's attendance at trial will substantially further the resolution of the case, and the ...


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