Opinion
1:16-cv-00524-ADA-EPG (PC)
04-05-2023
JOHNNY C. THOMAS, Plaintiff, v. MARK KUO, Defendant.
ORDER DENYING PLAINTIFF'S APPLICATION FOR A WRIT OF HABEAS CORPUS AD TESTIFICANDUM (ECF No. 198)
On March 29, 2023, Plaintiff filed an application for a writ of habeas corpus ad testificandum, seeking to secure the attendance of Hiram Summers as a Plaintiff witness at trial. (ECF No. 198.) According to the application, Mr. Summers is “a necessary and material witness” in the trial. (Id. at 1.) Trial is set to begin on April 11, 2023. (See ECF No. 190.)
I. LEGAL STANDARD
The following factors generally govern the determination of whether to issue a writ of habeas corpus ad testificandum directing the production of an inmate witness for trial: (1) whether the prisoner's presence will substantially further the resolution of the case; (2) security risks presented by the prisoner's presence; (3) the expense of the prisoner's transportation and safekeeping; and (4) whether the suit can be stayed until the prisoner is released without prejudice to the cause asserted. See Wiggins v. Cnty. of Alameda, 717 F.2d 466, 468 n. 1 (9th Cir. 1983). The Court may impose a deadline to submit to the Court a list of proposed witnesses for writs of habeas corpus ad testificandum. See Carpenter v. Sullivan, No. 1:07-cv-00114-SAB (PC), 2014 WL 411110, at *4 (E.D. Cal. Feb. 3, 2014).
II. DISCUSSION
On January 31, 2020, the Court granted Plaintiff's motion for the attendance of incarcerated witnesses and informed the parties that it would issue a writ of habeas corpus ad testificandum to have Mr. Summers brought to testify at the trial. (ECF No. 154.) However, the Court was unable to locate the witness with the CDCR number provided. (ECF No. 181 at 2.) Therefore, the Court, on September 12, 2022, set a deadline for Plaintiff to provide updated information on Mr. Summers or a notice stating that a writ of habeas corpus ad testificandum is not necessary to secure the witness's attendance at trial. (Id.) The Court provided Plaintiff fourteen (14) days to notify the Court. (Id.) Plaintiff did not provide any notice. (See docket.) Trial begins in twelve (12) days of service of this order. (See ECF No. 190.) Given the untimely nature of Plaintiff's application and what appears to be Plaintiff's failure to follow court orders, the Court denies Plaintiff's untimely application.
III. CONCLUSION
Accordingly, 1. Plaintiff's application for a writ of habeas corpus ad testificandum, (ECF No. 198), is denied with prejudice.
IT IS SO ORDERED.