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Atkinson v. Mackinnon

United States District Court, W.D. Wisconsin

July 15, 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 August 1, 2016.

         Several requests filed by plaintiff are before the court: (1) a motion for reconsideration of the order denying plaintiff’s petition for a writ of habeas corpus ad testificandum for Gregg Vandyke, dkt. #137; (2) petitions for writs of habeas corpus ad testificandum with respect to prisoners Tyrone Sturdivant and George Johnson, dkt. ## 108 and 110; and (3) requests for subpoenas for each of the defendants, dkt. ##124, 125 and 126. For the reasons explained below, I am denying each of plaintiff’s requests.

         OPINION

         A. Motion for Reconsideration

         In an order dated June 24, 2016, dkt. #122, I denied plaintiff’s petition for a writ of habeas corpus ad testificandum with respect to Gregg Vandyke because plaintiff failed to show that Vandyke had agreed to testify voluntarily. (Although an involuntary witness may be compelled to testify with a subpoena, plaintiff did not request a subpoena and he did not refute defendants’ argument that Vandyke was outside the scope of the court’s subpoena power.) In a declaration accompanying his motion for reconsideration, plaintiff describes for the first time an alleged conversation he had with Vandyke before Vandyke was transferred to a halfway house in Michigan in which Vandyke agreed to testify for plaintiff and in fact “became enthusiastic about testifying.” Dkt. #138 at ¶ 3.

         Plaintiff’s new declaration is the third version of events that plaintiff has described regarding Vandyke’s willingness to testify. Originally, plaintiff said that it “took [him] two years to convince Vandyke” to provide a declaration related to his observations and that Vandyke “only agreed to [do so] after he naively stated and believed that leaving Wisconsin would eliminate him from any further involvement.” Dkt. #92 at ¶ 6. Plaintiff then revised his story to say that it was 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.” Dkt. #112.

         Plaintiff’s new version of the story is too little, too late. The deadline for seeking a writ passed on June 27, 2016, but plaintiff did not mail his new declaration until June 30, 2016. Further, plaintiff does not provide any explanation as to why his story keeps changing.

         In response to plaintiff’s evolving narrative, defendants have submitted a declaration in which Vandyke says that he does not wish to testify in this case. Dkt. #142 at ¶ 4. That is the end of the matter. Even if plaintiff’s allegation that Vandyke agreed to testify at some time in the past is true, that point is moot in light of Vandyke’s more recent statement. Accordingly, I am denying plaintiff’s motion for reconsideration.

         B. Witnesses Tyrone Sturdivant and George Johnson

         Plaintiff requests writs of habeas corpus ad testificandum for Tyrone Sturdivant and George Johnson, both of whom are prisoners at the Federal Correctional Institution in Oxford, Wisconsin. Plaintiff states expressly that Sturdivant is not willing to testify voluntarily, so plaintiff requests a subpoena for Sturdivant as well as a writ. Plaintiff does not say whether Johnson is willing to testify voluntarily.

         According to plaintiff, Sturdivant is a prisoner who will testify that, after unidentified prison staff witnessed him stealing food, defendant Mackinnon gave Sturdivant the choice of voluntarily resigning from his job or going through the formal disciplinary process. Dkt. #109 at ¶¶ 2 and 6. Plaintiff was not given this choice. Instead, defendants reduced plaintiff’s pay, hours and duties without any process.

         Plaintiff says that George Johnson will testify about ways in which plaintiff changed his religious practices. In particular, Johnson observed plaintiff attempting to hide his kufi by “covering [it] with excessive hair nets.” Dkt. #111 at ¶ 3.

         I am denying plaintiff’s request for writs because he has not shown that his desire to obtain the testimony of Sturdivant and Johnson outweighs the potential financial and security costs of bringing these witnesses to the courthouse. Perotti v. Quinones, 790 F.3d 712 (7th Cir. 2015) (discussing factors that courts should ...


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