JOHN W. PEROTTI, Plaintiff-Appellant,
DIANE QUINONES and BILLIE KELSHEIMER, Defendants-Appellees
Argued February 9, 2015.
Appeal from the United States District Court for the Southern District of Indiana, Terre Haute Division. No. 2:10-cv-00086-JMS-MJD-- Jane E. Magnus-Stinson, Judge.
For John W. Perotti, Plaintiff - Appellant: Daniel E. Manville, Attorney, Michigan State University Law College, East Lansing, MI.
Diane Quinones, Billie Kelsheimer, Defendants - Appellees: Shelese M. Woods, Attorney, Office of The United States Attorney, Indianapolis, IN.
Before ROVNER and SYKES, Circuit Judges, and WOOD, District Judge.[*]
Rovner, Circuit Judge.
After a one-day trial, a jury rejected federal prisoner John Perotti's claim that his promotion from education orderly to law clerk was delayed in retaliation for his history of filing administrative grievances. Perotti appeals, contending that the district court abused its discretion in denying his petition for a writ of habeas corpus ad testificandum and instead arranging for him to participate in the trial by video conferencing. At the least, Perotti suggests, the district court should have ordered all parties to appear by video conferencing rather than imposing that disadvantage solely on him. Finding no abuse of discretion in the court's decision, we affirm the judgment.
In 2005, a federal jury in the Northern District of Ohio convicted Perotti on the charge that he had unlawfully possessed ammunition in interstate commerce after having been previously convicted of a felony. See 18 U.S.C. § 922(g)(1). Finding that Perotti's prior convictions qualified him as an armed career criminal, see 18 U.S.C. § 924(e), the district judge ordered him to serve a prison term of 210 months.
Perotti was housed at the federal penitentiary at Terre Haute, Indiana, for a two-year period beginning in April 2008. Following his orientation at the Terre Haute facility, he found employment as an orderly in the prison's education department, commencing on April 24. In addition to providing classroom instruction to inmates, the education department houses and oversees the prison's leisure and law libraries. As an orderly, Perotti would have been responsible for a variety of janitorial tasks in the department. Orderlies
and other staff were supervised by the department's instructors.
Perotti alleged that in August 2008, defendant Billie Kelsheimer, one of the instructors in the education department, offered him a promotion to the position of law clerk, in which capacity he would assist other prisoners with legal research. He accepted the new position, only to be told later by Kelsheimer that defendant Diane Quinones, the department administrator, had disapproved the promotion because Perotti had filed too many grievances against the department. Only after associate warden Bonita Mosley intervened at his request was he finally given the new position, which he officially assumed as of September 17. Based on these allegations, Perotti claimed that Quinones and Kelsheimer, by rescinding or delaying the promotion until Mosley intervened, had retaliated against him for exercising his First Amendment right to pursue grievances through the prison's administrative remedies system.
Perotti's tenure as a law clerk ultimately proved to be quite short. He was removed from the position in early October 2008, after another instructor, Laura Wheeler, filed a misconduct report averring that Perotti had possessed another inmate's legal materials outside of the library, in violation of prison rules. He was ultimately vindicated on that charge and awarded back pay, but he was not reinstated to the law clerk position nor given any other job for the remainder of his stay at Terre Haute. He was transferred to a different facility in April 2010.
B. Complaint and pre-trial proceedings
Perotti filed suit against Quinones, Kelsheimer, and Wheeler under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), alleging that they unlawfully retaliated against him for the exercise of his constitutional rights--Quinones and Kelsheimer, by initially excluding him from the law clerk position for having filed too many administrative grievances, and Wheeler, for having him fired for assisting another prisoner with his legal case. The suit was originally filed in state court, but was removed to federal court by the defendants. The district court initially granted summary judgment to all three defendants. Perotti v. Quinones, 2011 WL 4346397 (S.D. Ind. Sept. 16, 2011).
In a prior appeal, we upheld the grant of summary judgment to Wheeler, reasoning that because Perotti had no constitutional right to provide legal assistance to other prisoners, he had no viable claim of retaliation against her for initiating his discharge. Perotti v. Quinones, 488 F.App'x 141, 146 (7th Cir. 2012) (non-precedential decision). But we vacated the judgment as to Quinones and Kelsheimer, concluding that questions of fact entitled Perotti to a trial as to whether they had barred (or temporarily removed) him from the law clerk position in retaliation for having filed grievances against the education department, in violation of his First Amendment rights. Id. at 145.
On remand, the district court appointed counsel for Perotti. That attorney served written discovery, deposed both Quinones
and Kelsheimer, and defended Perotti's deposition, among other tasks. However, roughly two months prior to trial, Perotti filed an ex parte request asking for the court's leave to assume responsibility for his own representation in light of a breakdown in the attorney-client relationship. The court granted that motion and allowed Perotti's counsel to withdraw.
One of counsel's last acts on behalf of Perotti was to file a motion asking the court to issue a writ of habeas corpus ad testificandum pursuant to 28 U.S.C. § 2241(c)(5) directing the Bureau of Prisons to produce Perotti for trial. At that time and through the conclusion of the trial, Perotti was incarcerated at the federal penitentiary in Fairton, New Jersey. Perotti was thus asking the court to order his transport to Indiana. The United States Attorney, on behalf of the Bureau of Prisons and the United States Marshals Service, filed a memorandum opposing the motion, citing the expense, logistical burden, and security risk posed by relocating Perotti to Indiana for trial.
In a written entry, the court denied Perotti's request for a writ securing his presence at the forthcoming trial. Perotti v. Quinones, 2013 WL 4008188 (S.D. Ind. Aug. 5, 2013). As guideposts for the exercise of its discretion as to the relief Perotti was requesting, the court looked to the factors we articulated in Stone v. Morris, 546 F.2d 730, 735-36 (7th Cir. 1976), while having in mind that Perotti could participate in the trial by video conferencing rather than in person.
The court took note of multiple factors that weighed against granting the writ. First, the issue to be resolved at trial was straightforward and required the testimony of relatively few witnesses, the quantity of any lost wages was small, and, although an award of punitive damages was possible, the court was aware of no evidence supporting such an award. 2011 WL 4008188, at *2-*3. Second, Perotti was implicitly asking the government to bear the expense of his transport, and the United States Marshals Service had lodged an objection to his transfer. The fact that Perotti had previously been transferred among various federal facilities on multiple occasions, as he pointed out, did not mitigate the expense his production for trial would entail. Id. at *3. Relatedly, Perotti had been classified as having a history of serious violence, and his transport would require extreme caution. Id. at *4. Finally, as to suitable alternatives, the court deemed a delay of the trial until the conclusion of Perotti's prison term (when he could appear in person without a writ) to be unrealistic, as his release would not occur until 2019 at the soonest. Id.
However, having Perotti appear by video was a realistic alternative to his physical presence at trial. Without question, Perotti had an interest in presenting his testimony in person. Id. Nonetheless, the court was convinced, based on Perroti's appearance by video at a recent pretrial conference, that this was an acceptable alternative to ordering his appearance in person for trial. The court noted that Perotti's demeanor and facial expressions had been visible to everyone in the courtroom at the pretrial conference, and that Perotti had been able to see the judge, the jury box, defense counsel, and the witness stand. Id. at *5. Furthermore, because Perotti was representing himself, having him appear by video did not pose logistical difficulties as to where his counsel should be and how he and his counsel might communicate. Id. In sum:
Even with all shortcomings considered, video-conferencing nonetheless facilitates Perotti's meaningful participation at trial: he will be virtually present and able to testify, present evidence, confront witnesses and address the jury. Perotti argues that he will not prevail in
this action if he is unable to appear in person. This Court, however, is convinced that if Perotti does not prevail in this civil action it will not be because he testified via video conference.
The use of videoconferencing technology presents a reasonable alternative to Perotti's presence at court and strikes a proper balance between Perotti's interests and the countervailing concerns relating to cost and security associated with producing the plaintiff at trial.
Id. Separately, the district court ordered the Fairton, New Jersey penitentiary to make Perotti ...