* This order and judgment is not binding precedent, except under the doctrines of law

of the case, res judicata, and collateral estoppel. The court generally disfavors the citation

of orders and judgments; nevertheless, an order and judgment may be cited under the terms

and conditions of 10th Cir. R. 36.3. 

UNITED STATES COURT OF APPEALS

Filed 6/18/96

FOR THE TENTH CIRCUIT

DAVID BRUCE HAWKINS,

Plaintiff-Appellant,

v.

GARY D. MAYNARD, Warden, Previous

Director of the Oklahoma Department of

Corrections; LARRY FIELDS, Present

Director of the Oklahoma Department of

Corrections; OKLAHOMA

DEPARTMENT OF CORRECTIONS;

DAVID HAUCK, SAMUEL EARLS,

DAMON SMOOT, all employees of the

Oklahoma Department of Corrections;

SERGEANT MOOREY; RICK PETERS;

STEPHEN W. KAISER, Warden of

Lexington Correctional Center; STEVE

HARGETT, Warden, Oklahoma State

Reformatory,

Defendants-Appellees.

No. 95-6301

(D.C. No. CIV-93-181-T)

(W.D. Okla.)

ORDER AND JUDGMENT*

Before ANDERSON, LOGAN, and MURPHY, Circuit Judges.
2

After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of this appeal.

See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted

without oral argument.

Plaintiff-appellant David Bruce Hawkins appeals from the district court’s verdict in

favor of defendants on his complaint pursuant to 42 U.S.C. § 1983. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and affirm.

Plaintiff brought this action seeking monetary damages and injunctive relief for

alleged violations of his Eighth Amendment rights. He contends that he was sexually

assaulted by a male unit manager of the Department of Corrections. He alleges that he was

threatened and beaten when he refused the unit manager’s sexual demands, and that when

he eventually acceded to the demands out of fear, the unit manager repeatedly raped him.

He further claims that when he later stopped submitting to the unit manager’s demands, the

unit manager retaliated by allowing an article, which suggested that plaintiff had informed

on another inmate, to be published in an inmate newspaper. This article, he says, resulted

in a contract being placed on plaintiff’s life. Plaintiff claims that he filed an administrative

complaint concerning these facts, which was not acted upon but which resulted in further

retaliation and harassment against him by defendants. The defendants, he asserts, also
3

showed deliberate indifference to his medical needs resulting from the sexual assaults and

beatings.

This case was tried to the district court without a jury. The district court reached a

verdict in favor of defendants on all of plaintiff’s claims, and entered judgment against

plaintiff. Plaintiff raises a number of issues, both procedural and substantive, which he

contends entitle him to reversal of the judgment against him.

Plaintiff contends that he was entitled to be physically present at his trial, at the

arbitration hearing, at the settlement conference, and at depositions taken in his case. He also

argues that he was entitled to have certain inmate witnesses physically present at his trial.

He contests the district court’s denial of his requests for writs of habeas corpus ad

testificandum for this purpose. See 28 U.S.C. § 2241(c)(5). 

A prisoner does not have an absolute right to be present at his civil trial or pretrial

proceedings. See Price v. Johnston, 334 U.S. 266, 285-86 (1948). The decision to issue a

writ of habeas corpus ad testificandum to permit a prisoner’s presence is committed to the

sound discretion of the district court. Poole v. Lambert, 819 F.2d 1025, 1027 (11th Cir.

1987). In determining whether to grant the writ, the court must weigh the prisoner’s need

to be present against concerns of expense, security, logistics and docket control. Muhammad

v. Warden, Baltimore City Jail, 849 F.2d 107, 111-12 (4th Cir. 1988). A similar standard

applies where the testimony of incarcerated nonparty witnesses is sought. See Jerry v.

Francisco, 632 F.2d 252, 255-56 (3d Cir. 1980).
1 Plaintiff further asserts the district court abused its discretion by failing to analyze the

factors identified above in assessing his request for the writ. While a full analysis of the

factors surrounding a decision to grant or deny the writ is preferable, where as here there

were clear grounds for denying it, the omission was not reversible error. See Jones, 869 F.2d

at 1030 (magistrate simply wrote “denied” on petition; no reversible error).

4

Issuance of a writ of habeas corpus ad testificandum is merely one of many ways to

insure that an inmate receives his “day in court.” Holt v. Pitts, 619 F.2d 558, 562 (6th Cir.

1980). Other possibilities include a bench trial in the prison, presentation of evidence by

deposition, appointment of counsel, and postponement of the case if the inmate will be

released within a reasonable time. Id. Here, plaintiff had counsel to represent him at trial

and during the pre-trial proceedings. Both he and his witnesses gave trial depositions which

were considered by the district court during the bench trial. His counsel took the deposition

of the alleged perpetrator of the sexual abuse, and other defense witnesses, prior to trial. See

Jones v. Hamelman, 869 F.2d 1023, 1030 (7th Cir. 1989). Under these circumstances, the

district court did not abuse its discretion in denying plaintiff’s petition.1

Plaintiff next contends that the district court should have held his trial at his place of

incarceration. As Poole indicates, holding a trial at the penitentiary is one means of

addressing the inmate’s limited right to attend his own trial and to have witnesses present.

However, the question of whether to hold trial at the penitentiary is committed to the court’s

sound discretion. Cf. Poole, 819 F.2d at 1029 (identifying trial at penitentiary as an “option”

for district court to consider). Of the nineteen inmates plaintiff identified in the pretrial

conference order, only three were listed as being incarcerated at the Lexington Correctional
5

Center. Similarly, only seven of the nineteen inmates were listed as being incarcerated at

J.C.C.C. Trial at either J.C.C.C. or Lexington would not, therefore, have solved the “inmate

witness problem.” Given the other steps it took to provide plaintiff with his day in court, the

district court acted within its discretion in not holding trial at the penitentiary. 

A similar analysis applies to plaintiff’s contention that the district court should have

stayed his trial until he was released from prison. A stay or continuance until a prisoner is

released, if the release is imminent, is one of the options open to the district court. See id.

Plaintiff is serving an extended sentence, however, which would have made a stay a poor

option. The district court did not abuse its discretion by not granting a stay.

Plaintiff contends that he consented to a trial to the court on the understanding that his

trial would be held at the penitentiary. This contention is unsupported by the record. In the

same document in which he withdrew his request for jury trial, plaintiff requested that the

trial be held at J.C.C.C. The request makes no reference to any understanding or stipulation

with the district court concerning the place of trial. Plaintiff points us to no other evidence

of the purported agreement. 

Plaintiff next claims, perhaps inconsistently, that his counsel withdrew his jury

demand without his permission, requiring reversal. This claim also is frivolous. A civil

plaintiff may waive his right to jury trial through written stipulation by counsel. See Fed.

R. Civ. P. 39(a)(1). This is exactly what occurred here. Plaintiff cites no authority which

requires the court to inquire into the client’s authorization of such a waiver.
2 This court supplemented the record, on its own motion, to include a transcript of the

trial proceedings.

6

Plaintiff claims that defendants presented false and perjured testimony at the

arbitration hearing and the trial, and that they subverted his witnesses with inducements and

threats, causing them to lie at his trial. Plaintiff relies solely on the evidence presented to the

district court and contained in the record, which he contends demonstrates the falsehoods,

inducements and threats. In reaching its verdict, the district court discounted plaintiff’s

theory that defendants subverted witnesses who would otherwise have testified truthfully on

his behalf. We analyze the district court’s factual determination using a “clearly erroneous”

standard of review. See Anderson v. City of Bessemer City, 470 U.S. 564, 573 (1985).

Having reviewed the evidence cited to us by plaintiff, we cannot say that the district court’s

conclusions were clearly erroneous. We therefore reject plaintiff’s contention.

Plaintiff presents one piece of new “evidence” which he says shows that defendant

Rick Peters lied at trial. He attaches to his brief a photocopy of a photograph of a man

standing in front of a set of windows, some of which have venetian blinds. Plaintiff contends

that this unauthenticated photograph, lacking in foundation of any kind, demonstrates that

Rick Peters lied about his windows not being covered during the alleged acts of abuse. As

this photograph, by itself, proves nothing, plaintiff’s contention is without merit.

Plaintiff claims that the district court improperly failed to sequester the witnesses.

The trial minute order and the trial transcript2

 indicate that the sequestration rule was
7

invoked, and that the court properly informed plaintiff that party defendants could not be

excluded. Plaintiff’s issue is without merit.

Plaintiff argues that his counsel was prohibited from making an opening statement and

a closing argument. Plaintiff’s counsel waived his opening statement. Neither defendant nor

plaintiff made a closing argument; this was a trial to the court and closing argument was not

requested by either party. Plaintiff’s issue is without merit, as is his contention that his

counsel was prevented from calling any rebuttal witnesses or entering any evidence at trial.

Plaintiff’s assertion that his counsel was ineffective, requiring reversal, is without

merit. The Sixth Amendment right to effective assistance of counsel does not apply in a civil

cases; ineffective assistance of counsel does not result in reversal of civil judgments. See

MacCuish v. United States, 844 F.2d 733, 735 (10th Cir. 1988).

Plaintiff’s motions to supplement the record are denied. The judgment of the United

States District Court for the Western District of Oklahoma is AFFIRMED. 

The mandate shall issue forthwith. 

Entered for the Court

Stephen H. Anderson

Circuit Judge