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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Lee Michael Beitman,

Plaintiff,

v. 

Correct Clear Solutions, et al.,

Defendants.

No. CV-17-03829-PHX-JAT

ORDER 

Before the Court is Plaintiff’s Motion for a Writ to Testify at Trial for Brian Finkel 

(the “Writ Motion”) (Doc. 182) and Defendants’ Motion in Limine No. 2 re Brian Finkel 

(the “Motion in Limine”) (Doc. 228). Defendants responded to the Writ motion (Docs. 191, 

193) and Plaintiff replied (Doc. 197), and Plaintiff responded to the Motion in Limine (Doc. 

257). The motions have been fully briefed and the Court concludes that oral argument will 

not aid in its decision.1 The Court now rules. 

I. Background 

Plaintiff is confined within the Arizona Department of Corrections (the “ADC”). In 

its April 1, 2020 Order Setting Final Pretrial Conference and Trial, the Court ordered 

Plaintiff to file a motion listing each inmate witness for whom he is seeking a writ to testify 

at trial, or writ of habeas corpus ad testificandum. (Doc. 169 at 2). For all witnesses, the 

Court ordered Plaintiff to state why each witness is necessary for trial and how Plaintiff 

intends to pay for the witness fees. (See id.). In response to the Court’s April 1, 2020 Order, 

1 Plaintiff’s request for oral argument is therefore denied. See Fed. R. Civ. P. 78(b); 

Partridge v. Reich, 141 F.3d 920, 926 (9th Cir. 1998).

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Plaintiff submitted the Writ Motion. (Doc. 182). Addressing the Writ Motion, Defendants 

submitted the Motion in Limine. (Doc. 228). 

II. ANALYSIS 

In the Writ Motion, Plaintiff seeks a writ of habeas corpus ad testificandum for 

inmate Brian Finkel (“Finkel”). (See Doc. 182 at 1). Plaintiff argues that Finkel is a 

necessary witness for trial because Plaintiff and Finkel have discussed Plaintiff’s alleged 

injuries, Finkel has a medical degree and experience, and, besides doctors who work for 

the ADC, “Finkel is the only other person with a medical degree that has had a chance to 

examine [Plaintiff’s] disfigured face.” (Id. at 1–3). Defendants object to Finkel’s testimony 

arguing that Plaintiff has not complied with Federal Rule of Civil Procedure (“FRCP”) 26 

regarding expert testimony, Finkel is not qualified to testify as an expert, and that Finkel’s 

proposed testimony is more prejudicial than it is probative. (See Doc. 191 at 2–3). Plaintiff 

responds that Finkel will not testify as an expert, but “as a reasonable person with common 

intelligence who just happens to be a [sic] unlicensed doctor with a medical background 

with extensive experience.” (Doc. 197 at 2). 

In the Motion in Limine, Defendants request that “any testimony of Brian Finkel be 

precluded from the trial of this matter. (Doc. 228 at 1). Defendants’ motion is based on the 

same arguments asserted in their response to the Writ Motion. (See Doc. 228). Plaintiff 

argues that Finkel is not going to be testifying as an expert because the cause of Plaintiff’s 

injuries “is apparent to and easily understood by laypersons.” (Doc. 257 at 2). 

“The determination whether to issue a writ of habeas corpus ad testificandum rests 

within the sound discretion of the district court.” Cummings v. Adams, No. CV F 03 5294 

DLB, 2006 WL 449095, at *3 (E.D. Cal. Feb. 21, 2006) (quoting Maurer v. Pitchess, 530 

F.Supp. 77, 80 (C.D. Cal. 1981), rv’d in part, 755 F.2d 936 (9th Cir. 1985)); see Jones v. 

Sandy, No. 2:04-CV01933 ALA (P), 2008 WL 5068967, at *1 (E.D. Cal. Nov. 26, 2008) 

(“A federal court has the discretion to issue a writ of habeas corpus ad testificandum.”). 

When making such a determination, a district court must weigh certain factors including:

[T]he costs and inconvenience of transporting the prisoner, potential danger 

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from the inmate’s presence in court, the substantiality of the matter at issue, 

the need for an early determination of the matter, the possibility of delaying 

trial until the prisoner is released, the probability of success on the merits, 

the integrity of the correctional system, and the interests of the inmate in 

presenting his testimony in person rather than by deposition.

Maurer, 530 F.Supp. at 80. Ultimately, a court must weigh the importance of an inmate

witness’s presence against the inconvenience and expense associated with the inmate 

witness’s testimony. See Walker v. Sumner, 14 F.3d 1415, 1422 (9th Cir. 1994). 

After weighing the above factors, the Court finds that the benefit of Finkel’s 

testimony does not warrant granting a writ of habeas corpus ad testificandum. Plaintiff does 

not argue that Finkel saw any of Plaintiff’s alleged injuries take place, but only that Finkel 

examined Plaintiff after his alleged injuries occurred. (See Doc. 182 at 1–2). Plaintiff, 

additionally, fails to indicate when Finkel examined his face in relation to Plaintiff’s 

alleged injuries. (See id.). Thus, Plaintiff does not assert that Finkel has any firsthand 

knowledge of Plaintiff’s alleged injuries or treatment, but only that Finkel saw Plaintiff’s 

face at some point in time after his alleged injuries.

Further, as asserted by Defendants, Plaintiff has not complied with FRCP 26 

regarding expert testimony, and the Court will not, nor has Plaintiff asked it to, waive 

compliance with FRCP 26. Thus, Finkel cannot testify as an expert, regardless of his 

qualifications. So, Finkel’s testimony would be that of a lay person giving an opinion of 

Plaintiff’s injuries based upon no firsthand knowledge. Such testimony would be of little 

to no probative value and is thus substantially outweighed by the costs of Finkel’s 

testimony and any prejudice that it may produce. See Pinson v. Fed. Bureau of Prisons, 

No. CV-18-00535-TUC-RM, 2019 WL 10250755, at *4 (D. Ariz. Dec. 17, 2019), aff’d 

sub nom. Pinson v. Estrada, 812 F. App’x 701 (9th Cir. 2020) (denying writ of habeas 

corpus ad testificandum because plaintiff failed to show that proposed witnesses possessed 

probative firsthand knowledge regarding claims at issue). 

IV. Conclusion 

Based on the foregoing, the Court will not issue a writ of habeas corpus ad 

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testificandum for inmate Brian Finkel. Further, because Finkel’s proposed testimony offers 

little to no probative value and may produce substantial prejudice, and Plaintiff has not 

complied with FRCP 26, the Court will grant the Motion in Limine. Accordingly,

IT IS ORDERED that Plaintiff’s Motion for Writ to Testify at Trial (Doc. 182) is

DENIED. 

IT IS FURTHER ORDERED that Defendants’ Motion in Limine No. 2 re Brian 

Finkel (Doc. 228) is GRANTED, and that any testimony of Brian Finkel is precluded from 

the trial of this matter. 

Dated this 11th day of February, 2021.

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