by Douglas Ankeny
I recently had the privilege of assisting a prisoner with a tort claim against the Commonwealth of Virginia. After ensuring the prisoner exhausted the offender grievance procedure, I helped him complete his notice of claim alleging a lieutenant deliberately destroyed his property. The Commonwealth at first denied liability, but then in light of the documentary evidence, capitulated and admitted liability. A trial was set for the purpose of determining the amount of damages.
I helped the prisoner prepare a writ of habeas corpus ad testificandum to have him transported to the circuit court for trial. The clerk returned the petition with a note saying the court did not have authority to grant the petition or issue the writ.
We then filed a motion requesting an order from the circuit court denying the petition so that we could take an appeal. We included in the motion relevant case law on a plaintiff’s right to be heard; on the circuit court’s authority to issue transportation orders for incarcerated litigants; and on the necessity of a final order before an appeal may be taken. Approximately one week later the prisoner received a copy of the granted petition for a writ of habeas corpus ad testificandum. The prisoner represented himself at trial and prevailed in obtaining an award that was more than was offered at negotiations. ■