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Gregory Thomas v. James O'brien

November 8, 2011


The opinion of the court was delivered by: David E. Peebles U.S. Magistrate Judge


Plaintiff Gregory Thomas, a federal prison inmate currently serving a twenty-four and one-third-year sentence from this court for conspiring with others to engage in a pattern of racketeering activity, has commenced this action pursuant to 42 U.S.C. § 1983 against four members of the Syracuse City Police Department alleging deprivation of his civil rights. In his complaint, plaintiff claims that during the course of an arrest on April 14, 2005 the defendants violated his constitutional rights by subjecting him to an unlawful search and seizure, false arrest, and use of excessive force.

This case is now trial ready.*fn1 The plaintiff, who has been assigned counsel to represent him at trial pro bono, requests that the court issue the necessary directives to require the United States Bureau of Prisons ("BOP") and/or the United States Marshals Service ("USMS") to produce him in person for trial in Syracuse, New York, and to transport and house him during the course of the trial. That request is opposed by both the defendants and the United States Attorney for the Northern District of New York, whose input on behalf of the BOP and the USMS was solicited by the court.

For the reasons set forth below, I find that the court possesses the power to issue the directives necessary to procure the plaintiff's presence at trial. Nonetheless, after weighing the relevant factors informing the decision of whether to exercise that authority, including principally the potential security concerns and costs associated with plaintiff's presence at trial and the availability of live videoconferencing as a suitable alternative, I have concluded that plaintiff's request should be denied.


On December 19, 2006, following a fifteen-day trial, plaintiff was found guilty of conspiring with others for the purpose of engaging in a pattern of racketeering activity in violation of 18 U.S.C. § 1962(d). See United States v. Applins, et al., No. 5:05-CR-00322 (NAM), Dkt. No. 336. The conviction was subsequently affirmed on appeal to the Second Circuit Court of Appeals.*fn2 United States v. Applins, et al., 637 F.3d 59 (2d Cir. 2011). The indictment forming the basis for the plaintiff's conviction alleged that he and others who were members of a gang, known as the Elk Block, engaged in fifty-four racketeering acts, including multiple instances of narcotics possession and distribution, firearms possession, shootings, and murder, to promote their unlawful activities and discourage competition from rival gangs. See Applins, 637 F.3d at 63. Evidence adduced at trial established that Thomas engaged in daily crack-cocaine sales in the gang's territory and that when violence began to escalate between the Elk Block members and another gang, Thomas secured and carried a gun. Id. at 79-80. The evidence also revealed that after Thomas was shot by a rival gang member, he spoke with another Elk Block member about retaliating and shooting someone from the rival group. Id. Addressing the plaintiff's appeal of his conviction, the Second Circuit concluded that there was "more than sufficient evidence" introduced at trial to establish that Thomas was involved in a conspiracy and a racketeering enterprise to conduct and participate in the conduct of the gang's affairs. Id. at 80.

Thomas is currently serving his sentence at the Canaan United States Penetentiary ("USP Canaan"), located in Waymart, Pennsylvania, the closest BOP facility to the United States Courthouse in Syracuse, New York, at a distance of approximately one-hundred-thirty miles. See Straesser Decl. (Dkt. No. 86-1) ¶¶ 3, 7. USP Canaan is a high security institution. Straesser Decl. (Dkt. No. 86-1) ¶ 7. The plaintiff has been designated by the BOP as falling within the "IN" custody classification, the second highest security level that can be assigned to a federal inmate, and is classified as being at a "HIGH" security level within the "IN" custody category. Id. at ¶¶ 7-9. According to information available on the BOP website, plaintiff's current expected release date is June 5, 2029. See dingMoreList=false&IDType=IRN&IDNumber=13366-052&x=69&y=10 (site last visited November 8, 2011) (screen shot attached).

Thomas commenced this action on or about March 12, 2008 while incarcerated, asserting claims stemming from his arrest on April 14, 2005 in the City of Syracuse for loitering and drug possession.*fn3 In his complaint, as amended on June 2, 2008, plaintiff alleges that defendants subjected him to an unlawful search and seizure, false arrest, and the use of excessive force during the course of the incident. Dkt. No. 14. In response to defendants' motion for summary judgment seeking dismissal of plaintiff's claims on the merits and also based upon qualified immunity, Chief District Judge Norman A. Mordue issued a decision dated August 9, 2010 dismissing plaintiff's false arrest claim, but otherwise denying the motion and deeming the case trial ready as of September 30, 2010. Dkt. No. 43.

Following the issuance of Chief Judge Mordue's order the plaintiff, who at the outset of the case was granted in forma pauperis status, was assigned pro bono counsel, and the matter was scheduled for trial beginning on July 11, 2011. Before that date, plaintiff requested the issuance of a subpoena directing that the USMS transport him to the United States Courthouse in Syracuse, New York for trial, without the requirement that he prepay the costs associated with producing him. The trial was subsequently adjourned without date, and briefing addressing the issue was invited from all interested parties, including the plaintiff, the defendants, the BOP, the USMS, and the United States Attorney for the Northern District of New York. Dkt. No. 84. That briefing is now complete, and oral argument has been heard regarding the matter.


Plaintiff's application draws into question the court's authority to order his production at trial and to provide not only for his security while in attendance, but additionally for his custody and care from the time of his production until his return to BOP custody. The request also potentially presents the question of who must bear the costs associated with such an order, if entered, although I have opted not to address this issue given my ultimate conclusion with regard to plaintiff's application.

A. The Court's Authority to Order Plaintiff's Production At Trial The court's authority to direct the production of the plaintiff at trial is well-established, and seemingly non-controversial. Under 28 U.S.C. § 2241(c)(5), a court is empowered to secure the presence of a prison inmate through the issuance of a writ of habeas corpus ad testificandum when "[i]t is necessary to bring him [or her] into court to testify or for trial." Barnes v. Black, 544 F.3d 807, 809 (7th Cir. 2008); Muhammad v. Warden, Baltimore City Jail, 849 F.2d 107, 114 (4th Cir. 1988). Such a writ must be directed to "the person having control of the person detained[,]", 28 U.S.C. § 2243;*fn4 Pennsylvania Bureau of Corrs. v. United States Marshals Serv., 474 U.S. 34, 38, 106 S. Ct. 355, 359 (1985); see also Barnes, 544 F.3d at 809; Barnett v. Moon, No. 89-CV-262, 1993 WL 133725, at * 1 (N.D.N.Y. Apr. 23, 1993) (McAvoy, C.J.), and may be served nationwide, regardless of whether the prisoner is housed in a federal facility or instead is in the custody of a state or local agency. See United States v. Mauro, 436 U.S. 340, 357-58, 98 S. Ct. 1834, 1846 (1978) (citing Carbo v. United States, 364 U.S. 611, 619-620, 81 S. Ct. 338, 343 (1961)); Muhammad, 849 F.2d at 114 (citing Carbo); United States v. McGaha, 205 F. Supp. 949, 950 (E.D. Tenn. 1962) (citing 28 U.S.C. § 2241(c)(5) and Carbo). In this instance, since Thomas is presently in the custody of BOP, the court is authorized to direct the BOP to produce him in Syracuse for trial.*fn5 *fn6

B. Whether to Exercise the Discretion Conferred Upon the Court Without question, the constitution guarantees prison inmates free access to the courts. Bounds v. Smith, 43 U.S. 817, 97 S. Ct. 1491 (1977). Notwithstanding that right of access, however, as a prison inmate the plaintiff does not enjoy a constitutional right to be physically present at the trial of his civil claim. See Twitty v. Ashcroft, 712 F. Supp. 2d 30, 31 (D. Conn. 2009)(collecting cases); see also Tedder v. Odel, 890 F.2d 210, 212 (9th Cir. 1989) (per curiam); Hawks v. Timms, 35 F. Supp. 2d 464, 465 (D. Md. 1999) (citing Price v. Johnston, 384 U.S. 266, 284-85, 68 S. Ct. 1049 (1948), overruled on other grounds by McCleskey v. Zant, 499 U.S. 467, 111 S. Ct. 1454 (1991)).

The decision of whether to exercise the authority, conferred by statute, to issue a writ directing that the plaintiff be brought to this jurisdiction for trial lies within the sound discretion of the trial court. Twitty, 712 F. Supp. 2d at 31; Barnett, 1993 WL 133725, at * 1; see also Atkins v. City of New York, 856 F. Supp. 755, 757 (E.D.N.Y. 1994) ("the decision to issue a writ of habeas corpus ad testificandum is committed to the sound discretion of the district court.") (citing Haywood v. Hudson, CV-90-3287, 1993 WL 150317, at *1 (E.D.N.Y. Apr. 23, 1993)). In assessing the plaintiff's request for a writ, the court ...

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