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White v. Buckley

United States District Court, E.D. Louisiana

November 17, 2017

ABRY L. WHITE
v.
THE 34TH JDC JUDGE ROBERT A. BUCKLEY, ET AL.

         SECTION: “B” (5)

          REPORT AND RECOMMENDATION

          MICHAEL B. NORTH UNITED STATES MAGISTRATE JUDGE

         This 42 U.S.C. §1983 proceeding was filed in forma pauperis (“IFP”) by pro se Plaintiff, Abry L. White, against Defendants, Judge Robert A. Buckley and Clerk Randy Nunez of the Thirty-Fourth Judicial District Court for the Parish of St. Bernard, State of Louisiana. (Rec. doc. 4, pp. 1, 5).

         Plaintiff is an inmate of the Elayn Hunt Correctional Center in St. Gabriel, Louisiana who is serving a 25-year sentence following his conviction for forcible rape on May 27, 2017. As his statement of claim herein, Plaintiff alleges as follows:

1. I want 3 True Copies of my Court Transcripts for No. 13-08492
2. I want 5 True Copies of my Court Minutes for No. 13-08492
3. I want 5 True Copies of my Waiver of Constitutional Rights Plea Bargain Agreement . . For No. 13-08492
(The 34th JDC will not send me these requested items through the mail for No. 13-08492)
My claim is that I have the right to these legal documents for legal purposes free of charge.

(Rec. doc. 4, p. 5).

         In his prayer for relief, Plaintiff seeks a court order directing Judge Buckley and Clerk of Court Nunez to provide him with the court records that he seeks via certified mail. (Rec. doc. 4, p. 6). He also requests court-appointed counsel to minimize the possibility of this matter being dismissed as frivolous, malicious, or failure to state a claim as he “ha[s] other suits to file.” (Id.).[1]

         As noted earlier, Plaintiff has instituted suit herein IFP pursuant to 28 U.S.C. §1915. (Rec. doc. 6). A proceeding brought IFP may be dismissed as frivolous under §1915(e)(2)(B)(i) if the claim alleged therein has no arguable basis of law or fact, Booker v. Koonce, 2 F.3d 114 (5th Cir. 1993), or if it fails to state a claim upon which relief can be granted. 28 U.S.C. §1915(e)(2)(B)(ii); see also 28 U.S.C. §1915A(b), 42 U.S.C. §1997e(c). Giving the instant complaint a liberal reading, it is the recommendation of the undersigned Magistrate Judge that this matter be dismissed as frivolous and for failing to state a claim upon which relief can be granted.

         A prisoner is not entitled to a free copy of his state trial transcript and record to search for possible error upon which to base a petition for collateral relief in the future merely because he is indigent. Bonner v. Henderson, 517 F.2d 135, 136 (5th Cir. 1975); United States v. Herrera, 474 F.2d 1049, 1049-50 (5th Cir.), cert. denied, 414 U.S. 861, 94 S.Ct. 77 (1973); Colbert v. Beto, 439 F.2d 1130, 1131 (5th Cir. 1971); Bennett v. United States, 437 F.2d 1210, 1211 (5th Cir. 1971); Walker v. United States, 424 F.2d 278, 278-79 (5th Cir. 1970). Rather, the burden is on the prisoner to demonstrate that the requested records are needed to resolve a real, specific issue or that there is a particularized need for the documents. See United States v. MacCollom, 426 U.S. 317, 326-27, 96 S.Ct. 2086, 2092-93 (1976); Moore v. Wainwright, 633 F.2d 406, 408-10 (5th Cir. 1980); Route v. Blackburn, 498 F.Supp. 875, 877 (W.D. La. 1980).

         Plaintiff's blanket request for a free copy of various documents that were generated in his state criminal case fails to establish a particularized need for those documents. Moreover, aside from his request for court-appointed counsel, a request the Court views as unwarranted given the meritless nature of his allegations, Potts v. Texas, 354 Fed.Appx. 70, 71 (5th Cir. 2009), the relief that Plaintiff seeks in the instant matter is in the nature of mandamus. On that score, the law is clear that federal courts possess no general mandamus powers to direct state courts and their judicial officers in the performance of their duties where mandamus is the only relief sought. See Page v. Bacarisse, 80 Fed.Appx. 299 (5th Cir. 2003); Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir. 1997); Russell v. Knight, 488 F.2d 96 (5thCir. 1973); Moye v. Clerk, Dekalb County Superior Court, 474 F.2d 1275 (5th Cir. 1973); Lamar v. 118th Judicial District of Texas, 44 ...


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