United States District Court, W.D. Wisconsin
OPINION AND ORDER
BARBARA B. CRABB, District Judge
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.
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
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
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.
Witness Gregg Vandyke
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
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
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.
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.
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.
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.
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, ...