1994 Decisions

Opinions of the United

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Precedential or Non-Precedential: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
 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.