In re Wilkinson

ALAN E. NORRIS, J., delivered the opinion of the court, in which MERRITT, J., joined. NATHANIEL R. JONES, J. (pp. 916-19), delivered a separate dissenting opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

This action challenges the district court’s decision ordering Ohio prison officials to permit an inmate to attend a pretrial deposition conducted as part of a civil action brought by the inmate. Petitioners seek a writ of mandamus (in the nature of a writ of prohibition) directing the district court to vacate its order. The question presented is whether plaintiff Joseph Smith, an inmate at the Lo-rain Correctional Institution (“LORCI”), has shown a specialized need to attend a pretrial deposition, a need that outweighs the safety and security concerns of the state prison system. We conclude that he has not.

I.

Plaintiff brought actions against Janice Yarrow, Staff Librarian at LORCI, Norman Rose, Warden at LORCI, and four other prison officials at LORCI, alleging violations of the Eighth Amendment and denial of access to legal materials. Plaintiffs actions were brought pursuant to 42 U.S.C. §§ 1983, 1985, 1986, and 18 U.S.C. §§ 241 and 242. The district court consolidated plaintiffs three actions and appointed counsel to represent him.1 Soon thereafter, defendants filed a consolidated motion for summary judgment that was denied without prejudice. Further discovery was then ordered.

During the discovery process, the parties agreed that certain defendants would be deposed and that the depositions would take place at LORCI. Plaintiff, who hoped to attend the depositions, was notified by officials from the Ohio Department of Rehabilitation and Correction (“O.D.R.C.”) that he would not be allowed to attend. Due to the perceived difficulties in maintaining security, safety, and order in its correctional institutions, the O.D.R.C. has adopted a number of practices intended to prevent disturbances. These include the policy of not permitting inmates to be present when their counsel deposes prison staff members. The O.D.R.C. cites five reasons for the deposition policy: (1) maintaining staff authority; (2) preventing the aggrandizement of inmates; (3) avoiding unnecessary tension; (4) protecting staff morale; and (5) preserving limited resources. The O.D.R.C. does permit inmates to confer privately with counsel before and after depositions, as well as by telephone during the depositions. According to petitioners, plaintiff had nearly two years to confer with counsel, and telephone communication between counsel and himself was to take place during the depositions.

*914Plaintiff filed a Motion To Order Defendants To Permit Plaintiff To Attend Depositions In His Case. In the course of granting the motion, the district court acknowledged that a prisoner has no constitutional right to attend depositions in civil actions, but concluded that plaintiff was entitled to attend the depositions in this case in light of the factors outlined in In re Collins, 73 F.3d .614 (6th Cir.1995). Petitioners then filed a Petition for Writ of Mandamus with this court. The proceedings in district court have been stayed pending the outcome of this action.

II.

This court is asked to issue a writ of mandamus ordering the district court to vacate its order. See 28 U.S.C. § 1651 (“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”). Mandamus directed at a district court is an extreme remedy that this court utilizes only in extraordinary situations. See In re Parker, 49 F.3d 204, 206 (6th Cir.1995). For a writ to issue, we must be presented with a demonstrable abuse of discretion or conduct amounting to usurpation of judicial power. See id. Discovery rulings that raise “questions of unusual importance necessary to the economical and efficient administration of justice” are appropriate for review in mandamus. Federal Deposit Ins. Corp. v. Ernst & Whinney, 921 F.2d 83, 85 (6th Cir.1990). Because depositions are important to the proper completion of discovery and an improper ruling by the district court in this case could be said to hamper the economical and efficient administration of justice, this matter is. appropriate for review in mandamus.

We begin with the fundamental rule that an incarcerated plaintiff has no constitutional right to attend the-depositions taken in his civil action. In re Collins, 73 F.3d at 615. The reasoning supporting the rule was articulated by the Supreme Court nearly a half century ago:

Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system. Among those so limited is the otherwise unqualified right given by § 272 of the Judicial Code, 28 U.S.C. § 394 [now 28 U.S.C. § 1654] to parties in all courts of the United States to “plead and manage their own causes personally.”

Price v. Johnston, 334 U.S. 266, 285-86, 68 S.Ct. 1049, 1060, 92 L.Ed. 1356 (1948), overruled on other grounds by McCleskey v. Zant, 499 U.S. 467, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991). We often have employed the Supreme Court’s reasoning in the context of limits placed upon prison inmates’ participation in their own civil litigation. In fact, in Holt v. Pitts, 619 F.2d 558 (6th Cir.1980), this court noted that “[generally speaking, prisoners who bring civil actions, including prisoners who bring actions under the rights statute, 42 U.S.C. § 1983, have no right to be personally present at any stage of the judicial proceedings.” See Holt, 619 F.2d at 560 (emphasis added).

We also recognize that the administration of state prisons is a matter consigned to the states as part of their sovereign power to enforce the criminal law. See, e.g., Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973)(“it is difficult to imagine an activity in which a state has a stronger interest, or one that is more intricately bound up with state laws, regulations, or procedures, than the administration of its prisons”); United States v. Michigan, 940 F.2d 143, 155 (6th Cir.1991). In the exercise of this authority, the state has the power to adopt policies it believes are best suited for managing its prisons and assuring the safety and security of those institutions.

In opposing plaintiff’s motion for an order permitting him to attend the depositions, the state defendants presented to the district , court evidence of the reasons that warrant its adoption of the deposition attendance policy. They also submitted an affidavit from James G. Ricketts, Ph.D., a person they say qualifies as an expert in the field of prison administration. In Ricketts’ opinion:

Although there are many requirements for maintaining safety, security, and order within a prison, there are at least five that *915would be directly implicated by allowing inmates to be present at the deposition of staff members. Those include the need to consistently reinforce the superior/subordinate relationship between staff and inmates, the need to prevent inmates from having an opportunity to distinguish themselves amongst the inmate population, the need to avoid unnecessary tension between inmates and staff, the need to avoid circumstances and situations which undermine staff confidence, the need to efficiently utilize the limited resources available to a correctional institution.

According to Ricketts, staff authority is undermined when inmates are allowed to confront and challenge staff members during depositions, albeit through their attorneys. Permitting inmates to attend depositions will likely result in their attempt to distinguish or aggrandize themselves within the inmate population, with the result, says Ricketts, that they become more difficult to control. Furthermore, the confrontational nature of a deposition intensifies the underlying dispute between the inmate and staff member, increasing the strain between parties who frequently come in close contact with one another during normal prison routine. Ricketts concludes that staff confidence and morale likely will be undermined when staff members are confronted and challenged during depositions. This would also result in staff members becoming more reluctant to “exercise their lawful authority towards inmates with a reputation for litigiousness, thereby significantly limiting their effectiveness.” Finally, the costs of inmate litigation significantly drain the resources available to prisons. According to Ricketts, the ability to “grill” staff members through depositions would provide a powerful motivation for inmates to file additional claims against prison staff.

Apparently, the district court concluded that the points raised in Ricketts' affidavit did not amount to valid security concerns, as the court noted that it was “not persuaded ... that general security is compromised when inmates are permitted to attend hearings in which they perceive themselves to be on equal footing with their superiors, unnecessary tension is created, staff confidence is undermined and resources are not efficiently utilized.” We disagree and conclude that the reasons relied upon by the department were adequate to justify its deposition policy.

Despite petitioners’ compelling arguments that justify the existence of the deposition policy, the general rule embodied in that policy cannot serve to ban inmate attendance at depositions in their own civil actions in all instances. Under some circumstances an inmate may be able to make a specialized showing of the necessity of his attending a particular pretrial deposition. And, when an inmate can demonstrate that his circumstances should invoke an exception to the general rule, federal courts have the power, in the exercise of their discretion, to issue a writ requiring penal authorities to produce the prisoner at federal civil litigation proceedings. Holt v. Pitts, 619 F.2d at 561.

In order to attend a pretrial deposition, then, the inmate has the burden of producing evidence that will convince the district court that his attendance at this particular deposition is required. This includes a demonstration that his physical presence will contribute significantly to a fair adjudication of his claim. Id. Furthermore, when determining whether the prisoner has made a specialized showing of need, the court must consider the interests of prison officials as well as the inmate. Collins, 73 F.3d at 615. In Collins, we outlined the relevant factors a district court should weigh in exercising its discretion in making this determination. The factors formulated in Collins include:

[T]he costs and security risks involved in transporting the inmate to the deposition site and in maintaining his presence at the deposition, the importance of the testimony of the deponent to the claims alleged, the 1 need for the inmate to be physically present during the deposition, the inmate’s individual security history, general security issues, and the availability of alternative means to accommodate the concerns of both the inmate and the prison officials. ’

Id. This formulation allows the district court to consider both the interests of the inmate in attending the deposition and of the prison *916system in maintaining security and safety in the prison.

In granting plaintiffs motion to attend the depositions, the district court improperly placed the burden upon petitioners to establish that plaintiff should not be permitted to attend. In lieu of citing any evidence that plaintiff may have put forward to argue that his attendance was necessary, the court observed that “although there is no absolute need for Smith to be physically present during these depositions, ... Smith may be able to assist his attorneys with personal knowledge and facts that are relevant to his ease____” After discussing the Collins factors in the context of assigning to petitioners the task of demonstrating that plaintiff should not attend the deposition, the court concluded that “Smith’s presence at the depositions could contribute significantly to the fair adjudication of his claims.” These observations come nowhere near what is required for a prisoner to show that his circumstances demonstrate a specialized need for an exception to be granted to the general rule of non-attendance. Otherwise, the exception would swallow' up the general rule, since a prisoner would nearly always be able to demonstrate that his presence at a deposition “may” prove beneficial to his counsel and “could” contribute to a fair adjudication.

III.

Accordingly, we conclude that the district court abused its discretion in ordering the petitioners to permit Smith to attend the depositions. The petition for the writ of mandamus is granted to the extent that the order of the district court is vacated unless Joseph Smith is able to make the specialized showing of need required by this opinion.

. Plaintiff is no stranger to the litigation process. In the last four years alone, he has pursued six lawsuits in federal courts, filing more than 241 pro se motions, memoranda, and other pleadings. These motions included 19 requests for extraordinary injunctive relief.

. Indeed, it would seem that an official prison policy excluding inmates from depositions would have been raised by the petitioners earlier than the critical moment in which the depositions were to take place.