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
COUNSEL FOR PLAINTIFF/APPELLANT, ABDULLAH MUHAMMAD Jane Hogan
composed of Judges Fredericka Homberg Wicker, Jude G.
Gravois, and Marc E. Johnson
FREDERICKA HOMBERG WICKER JUDGE.
instant appeal arises from a mandamus proceeding, wherein
plaintiff, Abdullah Muhammad a/k/a/ Kirk Spencer, sought to
obtain records under the Public Records Law from the St.
James Parish District Attorney's Office relating to his
1992 first degree murder conviction. In this appeal,
plaintiff seeks review of the trial court's denial of his
motion for costs, attorney's fees, and penalties pursuant
to La. R.S. 44:35. For the following reasons, we affirm the
district court's judgment.
facts of this case have been well established as plaintiff
has come before this Court on three other occasions relating
to his writ of mandamus. A reiteration of the facts is provided
1992, plaintiff was convicted of first degree murder and
sentenced to imprisonment at hard labor for a term of life
without the benefit of parole, probation, or suspension of
sentence. Plaintiff's conviction and sentence became
final in 1995 when this Court affirmed his conviction and
sentence on direct appeal and the Louisiana Supreme Court
declined certiorari review. See State v. Spencer,
93-571 (La.App. 5 Cir. 1/25/94), 631 So.2d 1363, writ
denied, 94-488 (La. 2/3/95), 649 So.2d 400.
2004, plaintiff sent correspondence to the Office of the
District Attorney for the Twenty-Third Judicial District
requesting copies of the District Attorney's case files
in Docket Nos. 1695 and 1696. On July 7, 2004, Assistant
District Attorney Anthony T. Marshall sent plaintiff a letter
notifying him that the cost to copy the requested files
totaled $182.00, which plaintiff paid. On September 23, 2004,
Mr. 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. On February 3, 2005, the district court denied
plaintiff's motion without reasons. Plaintiff sought
supervisory review of the denial of his motion, 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 disposition).
about May 22, 2013, plaintiff's retained 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.
receiving no response, 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 his petition,
plaintiff alleged that he and his attorneys had repeatedly
requested copies of the case file from his first degree
murder criminal proceeding and that the District Attorney
consistently 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. 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
August 18, 2014, the District Attorney filed an answer to
plaintiff's petition, denying the allegations therein,
and further asserting that plaintiff, as a convicted felon
still in state custody, is not a "person" as
defined in the Public Records Act and, thus, under La.
R.S.44:31.1,  is not entitled to the requested records.
The District Attorney also alleged that it had already
provided plaintiff with a copy of the records, citing the
September 23, 2004 letter from Mr. 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
than 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" (hereinafter "Rule for Contempt"). 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 prior order.
court's 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 find 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 its October
17, 2014 "Response to Court's Order," and
requesting the court schedule a hearing on the exception.
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 assistant district
attorney Mr. 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 Mr.
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 district 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." Plaintiff timely appealed,
arguing that the district court erred in refusing to enforce
its order to compel the District Attorney to produce the
public records for an in camera inspection and to
provide a written certification detailing the alleged
destruction of the public records.
appeal, this Court vacated the district court's judgment
sustaining the District Attorney's exception of res
judicata, finding that the District Attorney failed to show
that the denial of plaintiff's motion to compel was a
final judgment on the merits or that the causes of action in
plaintiff's petition for a writ of mandamus and his
motion to compel were identical claims or causes of action as
required for res judicata to apply. 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. Regarding plaintiff's
entitlement to records under the Public Records Law, this
Court found that the ...