United States District Court, W.D. Wisconsin
STEPHEN L. CROCKER Magistrate Judge
se plaintiff James Davis is proceeding in this case on
(1) Eighth Amendment claims against prison officers at
Columbia Correctional Institution related to how they handled
his cell removal and medical care following a suicide
attempt, and (2) a First Amendment claim against defendant
Sandra Ashton related to her issuance of conduct reports.
This matter is proceeding to trial on October 16, 2017. In
accordance with the Trial Preparation Order (dkt. 91), Davis
filed six petitions for writs of habeas corpus ad
testificandum, seeking an order requiring six different
inmates to appear at trial to testify about the excessive
force incident and about Ashton's allegedly false and
retaliatory conduct reports. Davis submitted a declaration
swearing that each of them are willing to testify.
granting his three of his petitions without limitation,
granting one for video testimony, and directing Davis to
choose between two cumulative witnesses.
proposed witnesses are:
1. Robert Gant, who is incarcerated at
Waupun Correctional Institution. Gant is willing to testify
that he overheard Ashton tell another officer that Davis was
going to get his maximum release date extended because of the
conduct reports she wrote him, that Ashton was going to make
sure Davis was criminally charged, (dkt. 113) and that Ashton
admitted to Gant that she didn't care if her acts were
retaliatory (dkt. 120, Tr. at 16-17).
2. Quenton Thompson, who is incarcerated at
the Wisconsin Secure Program Facility. Thompson is willing to
testify about an incident on August 19, 2013, when he heard
Ashton tell Davis that she was going to keep writing conduct
reports against Davis as long as he kept filing grievances
against her (dkt. 109).
3. Curtis Daniels, who is incarcerated at
the Waupun Correctional Institution. Daniels is willing to
testify about a conversation he had with Ashton in which she
admitted to Daniels that she had written up Davis for sexual
misconduct because of all the inmate complaints he had filed
against her. (dkt. 108; dkt. 116, Tr. at 11-12).
4. Nikko Krohn, who is in federal custody at
USP Canaan in Waymart, PA. Krohn is willing to testify that
he witnessed a July 2013 incident where Ashton issued Davis a
conduct report accusing Davis of trying to touch Ashton with
his penis; according to Krohn, he could see that Davis did no
such thing (dkt. 107).
5. Hipolito Claudio, Jr., who is
incarcerated at Columbia. Claudio is willing to testify about
two incidents that took place on October 29, 2013, one
involving Ashton's claim that Davis attempted to sexually
assault her, and the second involving defendants' alleged
use of excessive force (dkt. 106).
6. Richard M. Arnold, who is incarcerated at
Columbia. Arnold states that he also is a witness to the
October 29, 2013, incidents (dkt. 105) about which Claudio is
willing to testify. Davis claims that Arnold had a different
angle of view from Claudio.
have filed transcripts of the depositions of five of these
witnesses: Robert Gant (dkt. 120), Richard Michael Arnold
(dkt. 119), Hipolito Claudio, Jr. (Dkt. 118), Quenton
Thompson (dkt. 117), and Curtis Daniels (dkt. 116). The
transcripts show that Davis cross examined each of these
witnesses about the issues he outlines in his petitions, so
it appears that these transcripts contain all of the
information Davis seeks to elicit at trial from these
witnesses. Because Davis will be able to submit admissible
portions of those depositions as evidence during trial, their
testimony is not necessary to Davis's claims.
I recognize that their in-person testimony carries
significant weight and Davis wants them in front of a jury.
As such, I am granting the writs for the in-person testimony
of Gant, Thompson, and Daniels, who each has different
testimony to offer.
grant Davis's petition for
or Arnold, but not both. Their
testimony is substantively duplicative and therefore
cumulative. Davis may choose which one of these witnesses he
wishes to offer corroboration of his version of events to the
jury, but he may not have both testify in person. Not later
than October 5, 2017, Davis must notify the court which of
these two witnesses he prefers to call at trial. If Davis
does not submit a timely statement of his choice, then on
October 6, 2017, the court will issue a writ for Arnold,
simply because the petition for his testimony has a lower
not grant Davis's request for
in-person testimony from Krohn. While it does not appear that
Krohn's deposition has been taken, his circumstances are
different from the other proposed witnesses: Krohn is a
federal prisoner incarcerated at a facility in Pennsylvania.
I will not impose upon the BOP the cost in time, effort and
money to transport Krohn to this court for his very limited
testimony. Instead, I will grant the motion insofar as the
court will allow Krohn to testify telephonically from his
facility if, in fact, USP Canaan has the existing capability
and staffing to arrange for video testimony by Krohn during
trial. The court will contact USP Canaan to discuss and
arrange this. It is not clear if Krohn is housed in USP
Canaan's high ...