                                                                                                                           Opinions of the United
1994 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-30-1994

Jones v. Lilly
Precedential or Non-Precedential:

Docket 93-5680




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Recommended Citation
"Jones v. Lilly" (1994). 1994 Decisions. Paper 147.
http://digitalcommons.law.villanova.edu/thirdcircuit_1994/147


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                 UNITED STATES COURT OF APPEALS

                      FOR THE THIRD CIRCUIT

                             ____________

                     NOS. 93-5680 and 93-5727
                           ____________

                            MICHAEL JONES

                                  v.

                   GERALD LILLY; WILFORD SMITH;
                 CAPTAIN HAGLER; HOWARD L. BEYER

                                  Louis Hagler, Appellant

                             ____________

          Appeal from the United States District Court
                 for the District of New Jersey
                         No. 91-cv-05582
                           ____________

                        Argued June 7, 1994
      Before:   MANSMANN, ALITO, and ROSENN, Circuit Judges
                     Opinion Filed September 30, 1994
                            ____________

DEBORATH T. PORITZ, Attorney General for New Jersey
JOSEPH L. YANNOTTI, Assistant Attorney General
MAMTA PATEL, Deputy Attorney General (Argued)
R. J. Hughes Justice Complex
CN 112
Trenton, NJ 08625
  Attorneys for Appellant

LAWRENCE S. LUSTBERG, ESQUIRE
JONATHAN ROMBERG, ESQUIRE (Argued)
Crummy, Del Deo, Dolan, Griffinger & Vecchione
One Riverfront Plaza
Newark, New Jersey 07102-5497
  Attorneys for Appellee
                           ____________

                         OPINION OF THE COURT

ROSENN, Circuit Judge.
          This appeal raises a novel question whether a writ of

habeas corpus can be expanded in its use to produce a prison

paralegal inmate to assist a fellow prisoner in his civil rights

action for damages.   The issue arises out of a § 1983 lawsuit

filed by Michael Jones, a prisoner at the New Jersey State Prison

in Trenton (TSP), against Captain Louis Hagler, a corrections

officer at TSP and the sole remaining defendant, in the United

States District Court for the District of New Jersey.    Jones

alleged that he was sexually assaulted by his two cellmates and

that, in placing him in a multiple-lock housing unit reputed to

contain homosexual inmates who "prey[] on other inmates for sex,"

Hagler acted with deliberate indifference to plaintiff's personal

safety.

          The parties filed cross-motions for summary judgment,

which the district court denied.    Additionally, Jones filed a

motion seeking the appointment of counsel to prosecute his civil

suit, which the court also denied.    The court concluded that, in

light of Jones' likelihood of success and the type and complexity

of the case, appointment of counsel was not warranted.    Moreover,

based upon his prior submissions, the court determined that Jones

was capable of adequately representing himself.

          Subsequently, after the court's refusal to appoint

counsel, Jones requested of the court that Thomas L. Hill, an

inmate paralegal at TSP, be allowed to assist him at trial.      The

district court consented and ordered that a writ of habeas corpus

be directed to the warden of TSP.    Hagler moved for a stay

pending appeal, which the district court denied.    Hagler then
filed a motion with this court for an emergency stay pending

appeal, which we granted.      This court also directed the clerk to

appoint counsel for Jones for this appeal.     Thereafter, Hagler

timely appealed the district court's order issuing a writ of

habeas corpus.    We vacate the order authorizing the writ.

                                   I.

          Before we address the propriety of the district court's

order issuing a writ of habeas corpus to produce a prisoner who

will act as a lay assistant at a civil trial, we must first

decide whether we have jurisdiction to hear this appeal at this

stage of the district court proceedings.     Hagler asserts that we

have jurisdiction under the collateral order doctrine.     See Cohen

v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).

          Under the doctrine, an interlocutory order is

immediately appealable if it conclusively determines the matter

in issue, resolves an important issue completely separate from

the merits of the action, and is effectively unreviewable on

appeal from a final judgment.     Powers v. Southland Corp., 4 F.3d

223, 231 (3d Cir. 1993) (citations omitted).     If an order fails

to satisfy either of these conditions, it is not immediately

appealable.     Id.   Although the collateral order doctrine is a

narrow exception, see Yakowicz v. Pennsylvania, 683 F.2d 778, 783

n.10 (3d Cir. 1982), we are convinced that the three requirements

are met here.

          First, the conclusiveness prong of the test is

satisfied because the district court issued its order in the

expectation that it will be the final word on the subject.     See
Praxis Properties Inc. v. Colonial Sav. Bank S.L.A., 947 F.2d 49,

55 (3d Cir. 1991).    Next, whether a court has authority to issue

a habeas corpus writ so that a prisoner can provide lay

assistance at trial is an important issue completely divorced

from the merits of the underlying civil rights action.

          Finally, without immediate review of the district

court's order, the legal and practical value of the right

asserted on appeal would be destroyed.   Praxis, 947 F.2d at 58

(citation omitted).   A review of the propriety of the writ after

final judgment cannot erase the burden, risk, and expense placed

upon the state of New Jersey (the State) for transporting and

maintaining secure custody over the paralegal prisoner.   Although

courts have consistently rejected claims that the time and

expense of litigating a suit that may later be reversed are

sufficient to warrant an immediate appeal, Powers, 4 F.3d at 232,

the case sub judice is factually distinguishable.    In addition to

the costs associated with transporting Hill to Jones' civil

trial, the State will have to bear the real risk, one that we

have unfortunately experienced in this circuit on more than one

occasion with other prisoners, that Hill will escape from its

custody during his temporary respite from prison.   See Price v.
Johnston, 159 F.2d 234, 237 (9th Cir. 1947) ("[T]emporary relief

from prison confinement is always an alluring prospect, and to

the hardened criminal the possibility of escape lurks in every

excursion beyond prison walls."), rev'd, 334 U.S. 266 (1948).

          Moreover, the State's entitlement, in the absence of

exigent circumstances, to run its prisons efficiently and
effectively without outside federal interference will have been

compromised, absent an immediate appeal.    Thus, because in the

case sub judice "review postponed will, in effect, be review

denied," Zosky v. Boyer, 856 F.2d 554, 561 (3d Cir. 1988),

cert. denied, 488 U.S. 1042 (1989), we conclude that the district

court's order issuing a writ of habeas corpus is effectively

unreviewable on final appeal.   Id.   See also Lynk v. La Porte

Superior Court No. 2, 789 F.2d 554, 561 (7th Cir. 1986) (holding

that the grant or denial of a writ of habeas corpus ad

testificandum is appealable under the collateral order doctrine);

Garland v. Sullivan, 737 F.2d 1283, 1285 (3d Cir. 1984) (same),

aff'd sub nom. Pennsylvania Bureau of Correction v. United States

Marshals Service, 474 U.S. 34 (1985); Ballard v. Spradley, 557

F.2d 476, 479 (5th Cir. 1977) (same).

                                II.

          Our inquiry does not end here.    We must still ascertain

whether appellant has standing to make the argument that the

district court's issuance of a writ of habeas corpus is

reviewable as a collateral order, as a decision regarding

immediate appealability will have no effect on him inasmuch as he

will not have to bear personally the expense and risk inherent in

transporting Hill.    A recent Supreme Court decision compels an

affirmative answer.   See Hafer v. Melo, 112 S.Ct. 358 (1991).
          In discussing the distinction between personal and

official capacity suits, the Court explained that the real party

in interest in an official capacity suit is not the individual

but rather the entity of which the officer is an agent.   Id. at
361.   "A suit against a state official in her official capacity

therefore should be treated as a suit against the State."         Id.

As set forth on the caption of Jones' complaint, Hagler also has

been sued in his official capacity.       In actuality, then, the

State is also a defendant in this action and Hagler, as a named

defendant and as an agent of the State, may properly present its

arguments and concerns.    Accordingly, we conclude that we have

jurisdiction to hear this appeal.

                                 III.

           We now turn to the merits of the appeal.      Hagler

contends that a federal district court lacks the authority to

order state officials to produce a state inmate for the purpose

of providing paralegal assistance at a civil trial.       Whether the

district court had authority to issue a writ of habeas corpus

directing the warden of TSP to transport Hill to assist Jones in

his civil suit is a legal question subject to plenary review.

See Tudor Dev. Group, v. United States Fidelity & Guar. Co., 968

F.2d 357, 359 (3d Cir. 1992).     When review is plenary, no form of

appellate deference is acceptable.      Salve Regina College v.
Russell, 499 U.S. 225, 238 (1991).

          We begin with the district court's statutory authority

to issue a writ of habeas corpus.       District courts are authorized

to issue writs only in a number of limited circumstances.         See 28

U.S.C. § 2241(c) (1994).    Under this statute, a writ may extend

to a prisoner when "[i]t is necessary to bring him into court to

testify or for trial."     Id. § 2241(c)(5).   Under its terms, this

provision does not provide authority for a court to remove a
prisoner so that he could provide assistance to another prisoner

at trial.    Rather, the statute represents the codification of the

common law writs of habeas corpus ad testificandum and ad

prosequendum issued when necessary to produce a prisoner to

prosecute him or obtain his appearance as a witness.    See United

States v. Hooker, 607 F.2d 286, 288 (9th Cir. 1979), cert.

denied, 445 U.S. 905 (1980).    See also United States v. Larkin,

978 F.2d 964 (7th Cir. 1992), cert. denied, 113 S. Ct. 1323

(1993).   Jones did not request the court to grant the writ for

the foregoing purposes.    Thus, § 2241(c)(5) cannot confer upon

the district court the power to grant the instant writ.

            Jones does not take issue with this conclusion.

Rather, he argues that the All Writs Act (the Act), 28 U.S.C. §

1651 (1994), "is a flexible and expansive grant of authority for

federal courts to issue modified versions of habeas writs not

specifically enumerated in § 2241."   He asserts that his case

turns not on the district court's power to issue the writ of

habeas corpus, but on whether the courts may issue the writ "to

allow lay assistance."

            The Act, not specifically relating to habeas corpus,

provides that "[t]he Supreme Court and all courts established by

Act of Congress may issue all writs necessary or appropriate in

aid of their respective jurisdictions and agreeable to the usages

and principles of law."    The language of the Act contains a

number of fundamental limitations on its scope.    First, the writ

issued must aid the court in the exercise of its jurisdiction.

See In Re Grand Jury Proceedings, 654 F.2d 268, 276 (3d Cir.),
cert. denied, 454 U.S. 1098 (1981).   Additionally, the means

selected must be analogous to a common law writ.    Id.

          Jones contends that the first requirement is met

inasmuch as the district court possessed jurisdiction over Jones'

underlying civil rights claims and the court's order granting the

habeas writ will aid the court by allowing it to manage the case

to a just conclusion.   As mentioned, the Act authorizes writs to

be issued only when necessary (or appropriate) to the

preservation or exercise of a court's jurisdiction.       Rosen v.

Cascade Intern., Inc., 21 F.3d 1520, 1527 n.13 (11th Cir. 1994)

(citation omitted).   The cases appear to be elusive in

establishing a rule of law as to when the writ is "necessary or

appropriate in aid" of a court's jurisdiction.     Issuance of the

writ in the present case would appear to have absolutely no

effect on the district court's jurisdiction to hear and decide

the underlying civil rights claims.   The court's jurisdiction

over those claims is independent of the existence of a writ.

Moreover, the absence of a writ will not destroy the court's

jurisdiction.   Thus, as the writ is not indispensable to the

court's disposition of Jones' claims, it facially cannot be

deemed to be necessary, or even appropriate, and therefore the

writ is not authorized under the Act.   Id.
          Contrary to Jones' assertion, In Re Grand Jury does not

compel a different conclusion.   In In Re Grand Jury we explained

that the term "necessary" does not have to be interpreted in a

narrow or rigorous manner.   In Re Grand Jury, 654 F.2d at 276.
Rather, a court may avail itself of the Act and issue a writ
where helpful "to achieve the ends of justice entrusted to it."

Id. (quoting Adams v. United States ex rel. McCann, 317 U.S. 269,

273 (1942)).

            Although interpreting the term "necessary" in a less

rigorous fashion, In Re Grand Jury nonetheless required that the

writ issued must actually aid the court in the performance of its

duties.    In the present case, however, the presence of Hill at

trial does not seem to bestow any benefit on the district court.

The principal beneficiary will, of course, be Jones.

            It appears, however, that this distinction is illusory

in light of United States v. New York Telephone Co., 434 U.S. 159

(1977).    Although that case did not involve a writ of habeas

corpus, the court directed a third party, the New York Telephone

Company (the Company), to permit the FBI to install and use pen

registers with respect to two telephones and furnish the FBI with

information and technical assistance necessary to employ the

devices.    In response to the Company's challenge to the power of

a court to authorize the foregoing orders, the Supreme Court held

that the order compelling the Company to provide assistance was

clearly authorized by the All Writs Act.    Justice Byron White,

author of the majority opinion, dismissed, as specious, the

dissent's distinction under the Act "between orders in aid of a

court's own duties and jurisdiction and orders designed to better

enable a party to effectuate his rights and duties."    Id. at 175
n.23.     He explained that "[c]ourts normally exercise their

jurisdiction only in order to protect the legal rights of

parties."    Id.   Thus, Justice White's construction of the phrase
"in aid of" a court's jurisdiction does not appear to preclude

issuance of the instant habeas corpus writ.

          Therefore, we turn to the All Writs Act again to

determine whether the present writ also is "agreeable to the

usages and principles of law," as that phrase is used in the Act.

Although the Supreme Court recognized that courts are not

"confined to the precise forms of that writ in vogue at the

common law," Price v. Johnston, 334 U.S. 266, 282 (1948), this in

no way implies that courts have the power to fashion any writ

they deem desirable.   Rather, courts must "look to the usages and

principles which have attached themselves to the writ of habeas

corpus down through the years to the present time."     Id.

          Historically, under the common law and prior thereto

under the English judicial system, the purpose of the writ has

been to "produce the body of a person before a court for whatever

purpose might be essential to the proper disposition of a cause."

Id. at 283.    For example, over time, the writ has provided a

"swift and imperative remedy" in cases where a person has claimed

that his or her personal liberty is being illegally restrained.

Id.   Thus, to the extent that courts have to deal with claims for

various types of illegal restraint not specifically provided for

in a statute, a variation or modification of an established writ

is in order.   For this reason, the Court in Price held that the

Act confers authority upon courts of appeal to order a prisoner

to be brought before it to argue his own appeal in a case

involving the prisoner's life or liberty.     Id. at 278.   Through

the centuries of its use, during colonial times and since the
founding of our Republic, the writ has been "the fundamental

instrument for safeguarding individual freedom against arbitrary

and lawless state action."    Harris v. Nelson, 394 U.S. 286, 290-

91 (1969).    The usages and principles which have attached to the

writ down through the ages have their focus on illegal detention

and confinement of persons and the correction of miscarriages of

justice within their reach.    Id. at 291.

          The writ in issue in this case, however, is not

directly or indirectly related to the usages or principles of law

of any of the writs of habeas corpus.1   It is neither reasonable

nor practical to use a writ historically associated with the

fight for human freedom to provide a plaintiff, especially in a

civil proceeding, with a lawfully confined prisoner for

assistance.   In short, Jones points to no authority, principle,

or interest of justice, nor have we found any, that would

convince us to expand the usage of a habeas writ to produce a

prisoner so that he can aid a fellow prisoner in prosecuting a

civil suit.   Thus, the writ in issue cannot be said to be

consistent with typical habeas writs and is therefore not

"agreeable to the usages and principles of law."   Permitting such

an expanded usage of the writ would inevitably encourage the


1
 . The Court in Price noted that Blackstone described the common
law versions of the habeas corpus writ as habeas corpus ad
respondendum, ad satisfaciendum, ad proseqeundum, testificandum,
deliberandum, ad faciendum et recipiendum , and ad subjiciendum.
Price, 334 U.S. at 281 n.9. Each of these writs has as its
purpose the production of a prisoner in court with respect to
proceedings dealing with the prisoner's personal detention and
restraint.
usage of "jailhouse" lawyers in the courts, elevate prison costs

in the transportation and guarding of prisoners to, from, and in

the courthouse, and seriously increase the risks associated with

having prisoners outside prison walls.

           Furthermore, the legal issues raised in the underlying

litigation are not extraordinary and ordinarily prisoners have

other reasonable options available.   First, they could proceed

pro se.   Second, they might, upon a showing of special

circumstances, even in a civil case, request the trial court to

appoint counsel for themselves.   See 28 U.S.C. § 1915(d) (1966);

Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984).     The

plaintiff in this case did move for the appointment of counsel,

but after analyzing the complexity of the case and the likelihood

of success, the district court found that appointment of counsel

was not warranted.   Finally, there is the possibility of

obtaining private counsel on a pro bono or contingent fee basis.

                                IV.

           Accordingly, as the writ issued by the district court

is not consistent with the usages and purposes behind the

variants of the habeas writ, we hold that a federal court is not

empowered, pursuant to the All Writs Act, to order state

officials to produce a state inmate for the purpose of providing

assistance at a civil trial.

           Therefore, the order of the district court of November

3, 1993, awarding the writ of habeas corpus and the subsidiary

order of November 15, 1993, granting plaintiff's motion that

inmate Thomas Hall assist him at the trial will be vacated and
the case remanded to the district court for further proceedings

consistent with this opinion.

          Each side to bear their own costs.
