(PC) Thomas v. Lewis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JOHNNY C. THOMAS, No. 1:16-cv-00524-ADA-EPG (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S APPLICATION FOR A WRIT OF HABEAS 13 v. CORPUS AD TESTIFICANDUM 14 MARK KUO, (ECF No. 198) 15 Defendant. 16 17 On March 29, 2023, Plaintiff filed an application for a writ of habeas corpus ad 18 testificandum, seeking to secure the attendance of Hiram Summers as a Plaintiff witness at trial. 19 (ECF No. 198.) According to the application, Mr. Summers is “a necessary and material witness” 20 in the trial. (Id. at 1.) Trial is set to begin on April 11, 2023. (See ECF No. 190.) 21 I. LEGAL STANDARD 22 The following factors generally govern the determination of whether to issue a writ of 23 habeas corpus ad testificandum directing the production of an inmate witness for trial: (1) whether 24 the prisoner’s presence will substantially further the resolution of the case; (2) security risks 25 presented by the prisoner’s presence; (3) the expense of the prisoner’s transportation and 26 safekeeping; and (4) whether the suit can be stayed until the prisoner is released without prejudice 27 to the cause asserted. See Wiggins v. Cnty. of Alameda, 717 F.2d 466, 468 n.1 (9th Cir. 1983). The 28 Court may impose a deadline to submit to the Court a list of proposed witnesses for writs of habeas 1 | corpus ad testificandum. See Carpenter v. Sullivan, No. 1:07-cv-00114-SAB (PC), 2014 WL 2 | 411110, at *4 (E.D. Cal. Feb. 3, 2014). 3 I. DISCUSSION 4 On January 31, 2020, the Court granted Plaintiff's motion for the attendance of incarcerated 5 || witnesses and informed the parties that it would issue a writ of habeas corpus ad testificandum to 6 | have Mr. Summers brought to testify at the trial. CECF No. 154.) However, the Court was unable 7 | to locate the witness with the CDCR number provided. (ECF No. 181 at 2.) Therefore, the Court, 8 | on September 12, 2022, set a deadline for Plaintiff to provide updated information on Mr. Summers 9 | or a notice stating that a writ of habeas corpus ad testificandum is not necessary to secure the 10 | witness’s attendance at trial. Ud.) The Court provided Plaintiff fourteen (14) days to notify the 11 | Court. Ud.) Plaintiff did not provide any notice. (See docket.) Trial begins in twelve (12) days of 12 | service of this order. (See ECF No. 190.) Given the untimely nature of Plaintiffs application and 13 | what appears to be Plaintiffs failure to follow court orders, the Court denies Plaintiffs untimely 14 | application. 15 Wl. CONCLUSION 16 Accordingly, 17 1. Plaintiffs application for a writ of habeas corpus ad testificandum, (ECF No. 198), is denied 18 with prejudice. 19 20 91 | TIS SO ORDERED. 22 Dated: _ April 5, 2023 UNITED f£TATES DISTRICT JUDGE 24 25 26 27 28