Dennis Barnes v. William Black

In the
United States Court of Appeals
For the Seventh Circuit
No. 08-1703
D ENNIS E ARL B ARNES,
Plaintiff-Appellant,
v.
W ILLIAM J. B LACK and M ETROPOLITAN P ROPERTY AND
C ASUALTY INSURANCE C OMPANY,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of Illinois.
No. 04-cv-1317—Joe Billy McDade, Judge.
S UBMITTED A UGUST 21, 2008—D ECIDED S EPTEMBER 12, 2008
Before P OSNER, R OVNER, and W OOD , Circuit Judges.
P OSNER, Circuit Judge. The plaintiff, injured in an auto-
mobile accident, filed a diversity suit in a federal district
court in Illinois against the driver of the other car and
the driver’s insurer, charging negligence. After the
accident but before the suit (which remains pending in
the district court) was filed, the plaintiff had been con-
victed in a Wisconsin state court of burglary and sentenced
2 No. 08-1703
to prison, where he remains, making it difficult for him
to litigate his federal suit, especially because he has no
lawyer. So he asked the clerk of the district court to issue
a writ of habeas corpus ad testificandum, ordering the
warden of the Wisconsin state prison in which he is
incarcerated to deliver him to the district court in Illinois
for the trial of his diversity suit. Section 2241(c)(5) of the
Judicial Code authorizes the district court to issue a writ
of habeas corpus commanding that the prisoner be deliv-
ered to the court “to testify or for trial.” The section
codifies the common law authority of federal courts to
issue writs of habeas corpus ad testificandum and ad
prosequendum, United States v. Larkin, 978 F.2d 964, 968 (7th
Cir. 1992); Jones v. Lilly, 37 F.3d 964, 967 (3d Cir. 1994), the
latter being used to obtain the prisoner in order to prose-
cute him. These writs can be used to get a prisoner into
the district court from anywhere in the country, e.g., Carbo
v. United States, 364 U.S. 611, 619 (1961); Stone v. Morris,
546 F.2d 730, 737 (7th Cir. 1976); United States v. Moussaoui,
382 F.3d 453, 466 (4th Cir. 2004); Roe v. Operation Rescue,
920 F.2d 213, 218 n. 4 (3d Cir. 1990), and from a state
facility as well as a federal one. United States v. Garrard,
83 F.3d 889, 893 (7th Cir. 1996); United States v. Cruz-
Jiminez, 977 F.2d 95, 99 (3d Cir. 1992); Jerry v. Francisco,
632 F.2d 252, 255 (3d Cir. 1980) (per curiam).
The district judge denied the writ on the ground that he
lacked power to issue it. He reasoned that the authority
to issue a writ of habeas corpus ad testificandum is limited
to cases in which a prisoner is seeking relief against being
confined or against the conditions in which he is being
confined—that is, is either seeking federal habeas corpus
No. 08-1703 3
as a postconviction remedy or complaining under 42
U.S.C. § 1983 that the conditions of his confinement
violate his federal rights. Section 2241(c)(5) is part of the
general federal habeas corpus statute, which is intended to
provide a remedy against illegal confinement, and it is
tempting to suppose as the district judge did that sub-
section (c)(5) applies only to a suit complaining about
the prisoner’s confinement, for example because a
prisoner cannot litigate his habeas corpus claim without
obtaining the testimony of some other prisoner. Many
cases in which writs of habeas corpus ad testificandum are
sought under the authority of section 2241(c)(5) are
indeed prisoner suits. See, e.g., Pennsylvania Bureau of
Correction v. U.S. Marshals Service, 474 U.S. 34, 35 (1985);
Stone v. Morris, supra, 546 F.2d at 737; Jones v. Lilly, supra,
37 F.3d at 967; Spears v. Chandler, 672 F.2d 834 (11th Cir.
1982) (per curiam). Many others, however, are criminal
cases, such as Demarest v. Manspeaker, 498 U.S. 184, 186
(1991); United States v. Moussaoui, supra, 382 F.3d at 466, and
United States v. Cruz-Jiminez, supra, 977 F.2d at 104-05.
Prisoners rarely have occasion to litigate a civil case
unrelated to imprisonment, though we have found one
appellate case that, like this one, was a run-of-the-mill civil
suit between private parties, and the power to issue the
writ was not questioned, ITEL Capital Corp. v. Dennis
Mining Supply & Equipment, Inc., 651 F.2d 405, 406-07 (5th
Cir. 1981), and one such district court case. Hasso v.
Retail Credit Co., 326 F. Supp. 1179, 1181 (D. Del. 1971). (In
neither case, however, was the writ actually issued.) The
federal courts have an interest in being able to get hold of
prisoners to testify in cases before those courts that tran-
4 No. 08-1703
scends the categories of prisoner and criminal cases. A
prisoner might be a crucial witness in a civil case in
federal court that had nothing to do with prisons or
criminal law.
The district judge further ruled that if he was au-
thorized to command the plaintiff’s presence, nevertheless
he would not do so but would instead allow the plaintiff
to appear in the district court electronically. Thornton v.
Snyder, 428 F.3d 690, 697-99 (7th Cir. 2005); Edwards v.
Logan, 38 F. Supp. 2d 463, 467-68 (W.D. Va. 1999); see
generally El-Hadad v. United Arab Emirates, 496 F.3d 658,
668-69 (D.C. Cir. 2007); Air Turbine Technology, Inc. v. Atlas
Copco AB, 410 F.3d 701, 714 (Fed. Cir. 2005); Beltran-Tirado
v. INS, 213 F.3d 1179, 1185 (9th Cir. 2000); United States v.
Baker, 45 F.3d 837 (4th Cir. 1995). The state had offered to
make the plaintiff available by video conferencing for
the district court proceeding. Rule 43(a) of the civil
rules provides that “for good cause in compelling cir-
cumstances and with appropriate safeguards, the court
may permit testimony in open court by contemporaneous
transmission from a different location.” “Writting” prison-
ers to a distant court entails cost and even danger, see, e.g.,
United States v. Silverstein, 732 F.2d 1338, 1342 (7th Cir.
1984); Jones v. Lilly, supra, 37 F.3d at 966, and the
district judge deemed these compelling circumstances
for allowing (with appropriate safeguards) video con-
ferencing as an alternative.
The plaintiff appeals from the denial of the writ. His
appeal also challenges the district judge’s refusal to
attempt to obtain a lawyer for him under 28 U.S.C.
No. 08-1703 5
§ 1915(e)(1), but that ruling is nonfinal, since the case
continues in the district court, and therefore nonappeal-
able. Randle v. Victor Welding Supply Co., 664 F.2d 1064,
1066-67 (7th Cir. 1981) (per curiam); see also Marler v.
Adonis Health Products, 997 F.2d 1141 (5th Cir. 1993); Holt v.
Ford, 862 F.2d 850 (11th Cir. 1989) (en banc); Henry v. City
of Detroit, 763 F.2d 757, 761-64 (6th Cir. 1985) (en banc). So
that part of his appeal we dismiss for lack of appellate
jurisdiction. Well, but the district judge’s denial of the
writ of habeas corpus ad testificandum was also nonfinal,
since it did not terminate the litigation; so have we juris-
diction of the appeal from that denial?
Our court, as well as the other courts to address the
issue, has said that orders granting the writ are immedi-
ately appealable under the “collateral order” doctrine. E.g.,
Lynk v. LaPorte Superior Court No. 2, 789 F.2d 554, 561 (7th
Cir. 1986); Jones v. Lilly, supra, 37 F.3d at 965-66; Ballard v.
Spradley, 557 F.2d 476, 479 (5th Cir. 1977). As explained
in the Jones case, “A review of the propriety of the writ
after final judgment cannot erase the burden, risk, and
expense placed upon the state of New Jersey (the State) for
transporting and maintaining secure custody over the
paralegal prisoner. Although courts have consistently
rejected claims that the time and expense of litigating a
suit that may later be reversed are sufficient to warrant
an immediate appeal, the case sub judice is factually
distinguishable. In addition to the costs associated with
transporting Hill to Jones’ civil trial, the State will have
to bear the real risk, one that we have unfortunately
experienced in this circuit on more than one occasion
6 No. 08-1703
with other prisoners, that Hill will escape from its custody
during his temporary respite from prison . . . . Moreover,
the State’s entitlement, in the absence of exigent circum-
stances, to run its prisons efficiently and effectively
without outside federal interference will have been com-
promised, absent an immediate appeal.”
But we emphasize that these are cases in which the
appeal was from the grant of the writ (except Lynk, but our
statement in that case that “in the federal system, the
grant or denial of writs of habeas corpus ad testificandum
is appealable,” 789 F.2d at 561 (emphasis added), was
dictum because the case concerned the denial of the writ
by an Indiana state court). Denial does not impose the
costs and risks that justify, as the court in Jones v. Lilly
explained, allowing an immediate appeal. This point
argues for an asymmetric right of appeal under the
collateral-order doctrine in this class of cases. A precedent
for such asymmetry is the immediate appealability of
orders that deny a motion to require the posting of a bond
in a civil case but not of orders granting such a motion. 15A
Charles Alan Wright, Arthur R. Miller & Edward H.
Cooper, Federal Practice and Procedure § 3914.2 (2008 ed.).
Similarly, a defendant may appeal the denial of official
immunity immediately, Behrens v. Pelletier, 516 U.S. 299,
307 (1996), but not a grant. Theis v. Smith, 827 F.2d 260,
261 (7th Cir. 1987) (per curiam); Baird v. Palmer, 114 F.3d
39, 43 (4th Cir. 1997). Both examples are explicable in terms
of the purpose of the collateral-order doctrine, which
permits an appeal from a nonfinal order only when
deferring appeal could inflict irreparable harm on a party.
No. 08-1703 7
An order granting a writ of habeas corpus ad testificandum
is a parallel example, where an immediate appeal is
allowed because the order appealed from is contended to
have created a risk of irreparable harm, which a denial
of the writ would not do. Any harm to the plaintiff from
the denial can be remedied by appeal should he lose
his suit. We are not surprised, therefore, to have found
no case in which an immediate appeal has been allowed
from the denial of the writ.
But 28 U.S.C. § 2253(a) makes the final order in a federal
habeas corpus proceeding appealable. The order denying
the writ in this diversity case, though interlocutory from
the standpoint of the case, is the final order in the plain-
tiff’s habeas corpus proceeding and thus may seem
appealable because made so by the statute, regardless
of the inapplicability of the collateral-order doctrine. Yet
no case that has allowed an appeal from the grant of a
writ of habeas corpus ad testificandum has referred to the
statute.
As a matter of semantics, section 2253(a) could be read
to apply to every subsection of section 2241, including
(c)(5), though it is odd to think of the denial (or for that
matter the grant) of such a writ as a “final order” in a
habeas corpus proceeding, since the petitioner is not
seeking his freedom by asking for such a writ and the real
proceeding is another case altogether (in this case, the
plaintiff’s diversity suit) which the order does not end.
But the decisive objection to deeming the grant or denial
of the writ a final order within the scope of section 2253(a)
is that any order appealable under that statute is
8 No. 08-1703
also subject to section 2253(c)(1)(A) if the petitioner is
detained as a consequence of a state judgment, as our
plaintiff is. So he would need a certificate of appealability
to be allowed to proceed with this appeal. He does not
have such a certificate and could not get one because
(given the videoconference option) he has not made “a
substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2).
Carbo v. United States, supra, is relevant here. It holds that
the geographical limitation of writs of habeas corpus in
section 2241(a) does not apply to writs issued under (c)(5),
even though there is nothing in section 2241(a), just as
there is nothing in section 2253(a), to suggest an exception
for (c)(5) writs (i.e., writs of habeas corpus ad testificandum
and ad prosequendum).
There is a further distinction between this case and the
ones that have allowed an immediate appeal from the
grant of a writ of habeas corpus ad testificandum. Those
were all third-party cases. A writ of habeas corpus
issued to a warden is like a subpoena issued to a stranger
to the case. The stranger is not a party and will not be
allowed to appeal from the final decision, which does not
aggrieve him. So he is allowed to appeal immediately if
he can demonstrate irreparable harm, even though he is
not faced with the prospect that a judgment will be entered
against him in the case that the party wants to drag him
into. When a court declines to issue or enforce a sub-
poena, the aggrieved litigant can get appellate review at
the end of the case; from his perspective the order is no
more final than any other step in discovery. And so it is
No. 08-1703 9
here. Our plaintiff wanted the judge to do something that
would make it easier for him to litigate. Appellate review
of other interlocutory steps that a judge might take, such as
recruitment of counsel, waiving certain fees, or ordering
the defendants to answer interrogatories, but refuses to
take, must await the end of the case in the district court.
The denial of a writ of habeas corpus ad testificandum is one
of those steps. The appeal from the denial must be dis-
missed for want of appellate jurisdiction.
The State of Wisconsin has filed an amicus curiae brief
arguing another jurisdictional ground for why this
case must terminate: that the writ of habeas corpus ad
testificandum to compel the delivery to the district court of
a state prisoner violates the Eleventh Amendment. But the
state is not a party to or even remotely interested in the
plaintiff’s suit, and is not charged with a violation of
federal law. The writ sought in this case would if granted
be like an order commanding a state official who is not a
party to a case between private persons to produce docu-
ments in the state’s possession during the discovery
phase of the case; such orders, because they do not com-
promise state sovereignty to a significant degree, cf.
Tennessee Student Assistance Corp. v. Hood, 541 U.S. 440
(2004); California v. Deep Sea Research, Inc., 523 U.S. 491
(1998); Green v. Mansour, 474 U.S. 64, 71-73 (1985); Florida
Dept. of State v. Treasure Salvors, Inc., 458 U.S. 670 (1982), do
not violate the Eleventh Amendment. See In re Missouri
Dep’t of Natural Resources, 105 F.3d 434, 436 (8th Cir. 1997);
Allen v. Woodford, 544 F. Supp. 2d 1074, 1078-79 (E.D. Cal.
2008).
10 No. 08-1703
Nevertheless, for the reasons stated earlier the appeal
must be, and it hereby is,
D ISMISSED.
9-12-08