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Atkinson v. Mackinnon

United States District Court, W.D. Wisconsin

June 24, 2016

CHRISTOPHER SCOTT ATKINSON, Plaintiff,
v.
FELIPA MACKINNON, JOSEPH WARNKE and CRYSTAL SCHWERSENSKA, Defendants.

          OPINION AND ORDER

          BARBARA B. CRABB, District Judge

         Pro se plaintiff Christopher Scott Atkinson is proceeding on the following claims: (1) (1) defendants Joseph Warnke and Crystal Schwersenska removed plaintiff from his prison job at the Federal Correctional Institution in Oxford, Wisconsin because plaintiff is a Muslim, in violation of his rights under the free exercise and establishment clauses of the First Amendment, the equal protection component of the Fifth Amendment and the Religious Freedom Restoration Act; (2) defendant Felipa Mackinnon retaliated against plaintiff, in violation of his right to free speech, because he complained about defendants Warnke’s and Schwersenska’s alleged mistreatment. Trial is scheduled for July 25, 2016.

         Several motions filed by plaintiff are before the court: (1) a petition for a writ of habeas corpus ad testificandum with respect to Gregg Vandyke, dkt. #91; (2) two requests for the issuance of a subpoena duces tecum under Fed.R.Civ.P. 45, dkt. #98 and 106; and (3) a request for a subpoena to compel Kevin Garska, a prison employee, to testify, dkt. #115. For the reasons explained below, I am denying all of plaintiff’s requests.

         In addition to these motions, plaintiff has filed requests for the appearance of two other prisoner witnesses, dkt. ##108 and 110, but the parties are still briefing those requests. Although plaintiff has not yet filed a reply brief in support of his request to compel Garska to testify, I need not wait to issue a ruling because it is clear from the face of the request that plaintiff is not entitled to a subpoena at this time.

         Finally, earlier today defendants filed a motion for leave to file a surreply reply brief with respect to plaintiff’s petition for a writ of habeas corpus ad testificandum for Gregg Vandyke. Dkt. #120. I am denying that motion as moot because I did not need to consider the surreply brief to decide the petition.

         OPINION

         A. Witness Gregg Vandyke

         According to declarations submitted by both plaintiff and Gregg Vandyke, Vandyke was a prisoner at the Federal Correctional Institution in Oxford, Wisconsin during the time of some of the events relevant to this case. Dkt. ##92 and 93. Like plaintiff, Vandyke worked in food services. Vandyke says that he overheard defendant Warnke make discriminatory comments to plaintiff.

         Plaintiff says that Vandyke is now living at a halfway house in Grand Rapids, Michigan. Plaintiff asks the court to issue a writ of habeas corpus ad testificandum “directing the Executive Officer of the Community Alternatives Program to arrange [a] video conference trial appearance or deliver custody of Gregg Vandyke to the United States Marshal to bring Vandyke to” trial.

         In response, defendants argue that plaintiff’s request does not comply with the court’s procedures, which require a party requesting a writ of habeas corpus ad testificandum to show that the proposed witness has agreed to testify voluntarily. Preliminary Pretrial Conference Packet at 25-26, dkt. #31. Without this showing, the party must comply with the requirements for issuing a subpoena. Id. at 27-28. One of those requirements is that the individual being served with the subpoena must live within 100 miles of the courthouse or within the same state. Fed.R.Civ.P. 45(c)(1). Because Vandyke is in Grand Rapids, Michigan, he is outside this court’s subpoena power. Although plaintiff suggests testimony by video as an alternative, defendants cite Roundtree v. Chase Bank USA, N.A., No. 13-239 MJP, 2014 WL 2480259, at *2 (W.D. Wash. June 3, 2014), and Ping-Kuo Lin v. Horan Capital Management, LLC, No. 14 CIV. 5202 LLS, 2014 WL 3974585, at *1 (S.D.N.Y. Aug. 13, 2014), for the proposition that a party cannot avoid the geographic limitations of Rule 45 by requesting video testimony as a substitute.

         I agree with defendants that plaintiff has not shown that Vandyke has agreed to testify for him. The declaration from Vandyke that plaintiff submitted says nothing about testifying at trial. In his own declaration, plaintiff says that it “took [him] two years to convince Vandyke” to provide a declaration and that Vandyke “only agreed to [do so] after he naively stated and believed that leaving Wisconsin would eliminate him from any further involvement.” That statement suggests strongly that Vandyke has no interest in testifying at trial.

         In his reply brief, plaintiff attempts to modify his statement, saying that it is his “understanding” that “Vandyke thought that it was totally up to the Bureau of Prisons if he could travel back to Wisconsin and testify in a civil case against prison staff, Vandyke was naively unaware of the court’s subpoena power in this civil action.” That statement still does not support a view that Vandyke agreed to testify. Rather, it is simply an explanation as to why he believed he would not have to do so.

         In another part of his reply brief, plaintiff says expressly that Vandyke agreed to testify for him, but the only evidence he cites in support of that statement is a list of telephone numbers and addresses that plaintiff says belong to Vandyke’s friends and family. The document does not include any agreement by Vandyke. Perhaps more important, plaintiff’s new representation is inconsistent with his earlier statement that Vandyke would not have agreed to submit his declaration if he believed that he would be required to participate further in the case. Plaintiff does not provide a persuasive explanation for the inconsistency and he does not explain why he omitted from his opening brief Vandyke’s alleged agreement to testify. Under these circumstances, plaintiff needed to provide clearer evidence of the alleged agreement.

         Plaintiff does not respond to defendants’ argument that he is not entitled to a subpoena, so he has forfeited that issue. Accordingly, I am denying plaintiff’s request for a writ of habeas corpus ad testificandum as to Gregg Vandyke. Of course, ...


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