APPEAL FROM THE TWENTY-THIRD JUDICIAL DISTRICT COURT PARISH
OF ST. JAMES, STATE OF LOUISIANA NO. 36, 508, DIVISION
"C" HONORABLE KATHERINE TESS STROMBERG, JUDGE
PLAINTIFF/APPELLANT, ABDULLAH MUHAMMAD A/K/A KIRK SPENCER In
composed of Judges Susan M. Chehardy, Fredericka Homberg
Wicker, and Robert A. Chaisson
appeal arises in the course of litigation instituted by
plaintiff, Abdullah Muhammad a/k/a Kirk Spencer, to obtain
records from the St. James Parish District Attorney's
Office relating to his 1992 first degree murder conviction.
For the reasons fully discussed herein, we reverse the
district court's judgment as amended June 13, 2017,
sustaining the State's exception of no right of action.
is serving a sentence of life imprisonment for his 1992
conviction of first degree murder. His conviction and
sentence were affirmed by this Court on direct appeal,
see State v. Spencer, 93-571 (La.App. 5 Cir.
1/25/94), 631 So.2d 1363, and became final in 1995 when the
Louisiana Supreme Court declined certiorari review. See
State v. Spencer, 94-488 (La. 2/3/95), 649 So.2d 400.
Since then, plaintiff has continued to challenge his
conviction and sentence. In 2004, he sent correspondence to
the St. James Parish District Attorney's Office
requesting copies of the District Attorney's files in
Docket Numbers 1695 and 1696. On July 7, 2004, Assistant
District Attorney Anthony T. Marshall ("A.D.A.
Marshall") sent plaintiff a letter notifying him that
the cost of copying his file was $182.00. On September 23,
2004, A.D.A. Marshall sent plaintiff a second letter which
read, "Enclosed is the copy of the District
Attorney's file as you requested."
February 3, 2005, plaintiff filed a "Motion to
Compel" production of the District Attorney's file
in Docket No. 1695, alleging that he had paid the District
Attorney for a copy of the files in Docket Nos. 1695 and
1696, but did not receive a copy of the file in Docket No.
1695. Plaintiff filed this motion to compel in the
Twenty-Third Judicial District Court under Docket No. 1695.
On February 3, 2005, the district court denied this motion
without reasons. Plaintiff sought supervisory review of that
denial, and on March 4, 2005, this Court denied
plaintiff's writ "on the presentation."
State of Louisiana ex rel. Abdullah Muhammad v. Burl
Cain, 05-249 (La.App. 5 Cir. 3/4/05) (unpublished writ
years later, on or about May 22, 2013, plaintiff's
counsel, Michael J. Rocks, sent a public records request via
certified mail to Ricky Babin, District Attorney for the
Twenty-Third Judicial District, requesting the opportunity to
inspect and copy all of the District Attorney's records
related to plaintiff's criminal case in Docket No. 1695.
The return receipt indicates that Mr. Rocks' letter was
received on May 31, 2013. On or about June 27, 2013, Mr.
Rocks sent a second request via certified mail. The return
receipt on the second certified letter indicates that the
letter was unclaimed. On August 2, 2013, Mr. Rocks sent a
third and final request via certified mail. The return
receipt on this final letter reflects that it was received,
though the date of receipt is illegible.
response forthcoming, on July 14, 2014, plaintiff filed a
"Petition for Writ of Mandamus under the Louisiana
Public Records Act, " naming as defendants the Office of
the District Attorney for the Parish of St. James and
District Attorney Ricky Babin, in his official capacity as
custodian of records (hereinafter referred to collectively as
"the District Attorney"). In this petition,
plaintiff alleged that he and his attorneys had repeatedly
requested from the District Attorney copies of the case files
from his first degree murder proceeding and that the District
Attorney had failed to respond to the requests.
Plaintiff's petition further alleged that, pursuant to
the Public Records Law, the custodian of records bore the
burden of establishing the current location of the requested
records, the last known location of the requested records, or
the efforts which had been made to attempt to locate the
requested records, and that the District Attorney had given
no such information to plaintiff. Accordingly, plaintiff
requested that the district court issue a writ of mandamus
ordering the District Attorney to provide the records to
plaintiff and award attorney's fees and court costs
incurred in obtaining the records, as well as other damages
and penalties provided by the Public Records Law. Plaintiff
attached to his petition the earlier record requests sent by
his attorney via certified mail.
August 18, 2014, the District Attorney filed an answer to
plaintiff's petition, denying the allegations therein,
and further asserting that, under La. R.S. 44:31.1, plaintiff
was not a "person" entitled to the requested
records because he is in custody after sentence following a
felony conviction and has exhausted his appellate remedies.
The District Attorney also alleged that plaintiff had already
been provided with a copy of the records, citing the
September 23, 2004 letter from A.D.A. Marshall, which
preceded plaintiff's 2005 motion to compel.
September 24, 2014 hearing on plaintiff's petition, the
district court, sua sponte, raised the issue of
whether the February 3, 2005 denial of plaintiff's motion
to compel precluded plaintiff's petition under the
doctrine of res judicata, to which plaintiff's counsel
responded in the negative. The District Attorney, without
discussing the issue of res judicata, argued that plaintiff
was not entitled to the records under La. R.S. 44:31.1, and
further stated, "for argument sake, Judge, we don't
know if the records still exist. They should have been
shredded." At the conclusion of the hearing, the court
ordered the District Attorney to produce the records within
thirty days to allow the court to conduct an in
camera inspection for privileged information, after
which, if no privileged information was discovered, the court
would give the records to plaintiff.
of complying with this order and turning over the records to
the district court, on October 17, 2014, the District
Attorney filed a "Response to Court's Verbal Order
of September 24, 2014, " in which the District Attorney
raised the exception of res judicata and repeated its
argument that plaintiff was not entitled to the records under
La. R.S. 44:31.1. The District Attorney further asserted
that, pursuant to La. R.S. 44:36(E)(1) and the Records
Retention Schedule of the District Attorney's Office,
files of major felony criminal cases may be destroyed five
years from the end of the calendar year in which a
defendant's conviction and sentence become final, and
that after a diligent search the District Attorney had been
unable to locate any of plaintiff's requested records.
November 26, 2014, plaintiff filed a "Rule for Contempt
for Failure to Comply with Court Order, and Motion to
Strike." In his rule for contempt, plaintiff alleged
that the District Attorney failed to timely comply with the
district court's order to produce the records, that the
District Attorney failed to provide a definitive statement
denying that the records were in its custody, and that the
District Attorney failed to provide a "detailed, written
certification . . . stating the reason for the absence of the
records from their custody, " as required by La. R.S.
44:34. Wherefore, plaintiff urged the court to find the
District Attorney guilty of contempt and order the District
Attorney to produce the records in compliance with the
district court's order.
court minutes reflect that at the February 24, 2015 hearing
on plaintiff's rule for contempt, the district court
ordered the District Attorney to provide a certificate to the
court within thirty days detailing where and when the records
were destroyed. On April 7, 2015, plaintiff filed a
"Motion to Reset Plaintiff's Rule for Contempt and
Motion to Strike, " wherein he alleged that the District
Attorney failed to provide the district court with a
certificate detailing the destruction of the records as
ordered by the court and repeated his request that the court
adjudge the District Attorney guilty of contempt and order
production of the documents or production of the certificate
detailing destruction of plaintiff's records. On April
15, 2015, the District Attorney filed a "Motion to
Re-set Hearing, " asserting that the court had not ruled
on the exception of res judicata raised in the District
Attorney's October 17, 2014 "Response to Court's
Order, " and requesting the court schedule a hearing on
court scheduled a hearing on plaintiff's rule for
contempt and the District Attorney's exception of res
judicata for July 28, 2015, and, pursuant to the court's
order, both parties filed memoranda in support of their
positions regarding the exception of res judicata. In its
supporting memorandum and at the hearing, the District
Attorney argued that the denial of plaintiff's motion to
compel in 2005 precluded plaintiff's mandamus action
under the doctrine of res judicata, because the denial of the
motion was a valid and final judgment, the parties to the two
actions are the same, the cause of action asserted in
plaintiff's public records request existed at the time
plaintiff filed his motion to compel, and the cause of action
asserted in plaintiff's public records request arose out
of the transaction or occurrence that was the subject matter
of the motion to compel.
response, plaintiff argued that the parties to the two
actions are not the same, because plaintiff's motion to
compel named A.D.A. Marshall as a defendant, whereas, in the
instant action, the District Attorney, in his capacity as
custodian of records, and the Office of the District Attorney
are named as defendants. Plaintiff further argued that the
cause of action asserted in plaintiff's petition did not
exist at the time of the earlier litigation, because
plaintiff's motion to compel was provoked by A.D.A.
Marshall's failure to provide plaintiff with the case
files for which he had paid, whereas plaintiff's petition
was filed as a result of the District Attorney's failure
to respond to plaintiff's public records requests.
Lastly, plaintiff argued that the transaction or occurrence
that gave rise to plaintiff's petition is not the same as
that which gave rise to plaintiff's motion to compel,
because the request for copies of his case files made in 2004
was a different transaction than plaintiff's public
records requests made in 2013.
hearing arguments from both sides, the court took the matter
under advisement. On September 14, 2015, the court issued a
written judgment with incorporated reasons, granting the
District Attorney's exception of res judicata and denying
plaintiff access to the records under La. R.S. 44:31.1. This
judgment did not discuss plaintiff's rule for contempt.
timely appealed, arguing that the District Attorney erred in
refusing to provide the public records to plaintiff, and that
the district court erred in refusing to enforce its order to
produce the public records for an in camera
inspection and its order to provide certification detailing
the alleged destruction of the public records.
appeal, this Court found that the district court erred in
sustaining the District Attorney's exception of res
judicata. See Muhammad v. Office of the DA for St.
James, 16-9 (La.App. 5 Cir. 4/27/16), 191 So.3d 1149,
1155-56. Noting the four prerequisites for the application of
res judicata-(1) the parties must be identical in both suits,
or in privity; (2) the prior judgment must have been rendered
by a court of competent jurisdiction; (3) there must be a
final judgment on the merits; and (4) the same claim or cause
of action must be ...