United States District Court, E.D. Virginia, Alexandria Division
December 13, 2016
Ulysses Harcum, Plaintiff,
Suzanne P. Kirby, Defendant.
MEMORANDUM OPINION AND ORDER
Bruce Lee United States District Judg.
Matter comes before the Court upon review of an initial
complaint filed by Ulysses Harcum, a Virginia inmate acting
pro se. Plaintiff seeks monetary damages and injunctive
relief pursuant to 42 U.S.C. § 1983 from the defendant,
a court reporter who has refused to provide plaintiff with a
free copy of a transcript. Plaintiff has applied to proceed
in forma pauperis in this action. After careful
review of the complaint, the action must be dismissed
pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state
alleges that on December 7, 2015, he wrote to Kirby Court
Reporting in Chesapeake, Virginia to obtain a copy of the
transcript of proceedings from January 17, 2013 in his case
number CR12-1374. The reporter, defendant Suzanne Kirby,
responded that plaintiff would have to pay $2.00 per page for
the 217-page transcript. Plaintiff asserts that he does not
have the money to do so because he is indigent.
June, 2016, Ms. Kirby wrote to plaintiff that she would send
him a PDF of the transcript if his family members or friends
would cover the printing cost. Plaintiff informed defendant
that he has no means to provide money for anything, nor does
he have access to a computer because he is confined in a
Level 5 facility "which lost [his] transcript copy of
1-17-13 which [he] needs to perfect [his] appeal by showing
proof of his claims of prejudice on appeal." Compl. at
5. Plaintiff alleges that although he informed Ms. Kirby of
his indigent status and suggested that she check with the
court to verify his indigence, she nonetheless "refused
to surrender [his] transcripts." The sole named
defendant is Ms. Kirby, and as relief plaintiff seeks a copy
of the transcript at issue and an award of $2, 000 "for
pain and suffering and mental anguish, " although he
states that he will "settle for $500 ... or the
reviewing a complaint pursuant to § 1915A, a court must
dismiss a prisoner complaint that is frivolous, malicious, or
fails to state a claim upon which relief can be granted. 28
U.S.C. § 1915A(b)(1). Whether a complaint states a claim
upon which relief can be granted is determined by "the
familiar standard for a motion to dismiss under Fed.R.Civ.P.
12(b)(6)." Sumner v.Tucker. 9 F.Supp.2d 641,
642 (E.D. Va. 1998); Hishon v. King & Spalding.
467 U.S. 69, 73 (1984). To survive a 12(b)(6) motion, "a
complaint must contain sufficient factual matter, accepted as
true, to 'state a claim to relief that is plausible on
its face.'" Ashcroft v. Iqbal. 556 U.S.
___, ___, 129 S.Ct. 1937, 1949 (2009) (quoting Bell
Atlantic Corp. v. Twombl v. 550 U.S. 544, 570 (2007)).
"A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Id. However,
"[t]hreadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not
suffice" to meet this standard, id, and a plaintiffs
"[f] actual allegations must be enough to raise a right
to relief above the speculative level...".
Twomblv. 550 U.S. at 55. Moreover, a court "is
not bound to accept as true a legal conclusion couched as a
factual allegation." Iqbal. 129 S.Ct. at
state a cause of action under § 1983, a plaintiff must
allege facts indicating that he was deprived of rights
guaranteed by the Constitution or laws of the United States
and that this deprivation resulted from conduct committed by
a person acting under color of state law. See West v.
Atkins. 487 U.S. 42 (1988). Here, even liberal
construction of plaintiff s allegations fail to reveal a
redressable § 1983 claim.
established in this circuit that an indigent defendant is not
entitled to copies of court documents or transcripts at
government expense "merely to comb the record in the
hope of discovering some flaw." United States v.
Gallo. 1988 WL 60934, at *1 (4th Cir. May 31, 1988)
(citing United States v. Glass. 317 F.2d 200, 202
(4th Cir. 1963)); United States v. Shoaf. 341 F.2d
832, 833-35 (1964). Although an indigent defendant is
constitutionally entitled to a free "transcript of prior
proceedings when that transcript is needed for an effective
defense or appeal, " Britt v. North Carolina.
404 U.S. 226, 227 (1971), there is no constitutional
requirement that an indigent who wishes to collaterally
attack a conviction or sentence must be supplied with
transcripts at government expense absent a showing of a
"particularized need" for the documents. United
States v. MacCollum. 426 U.S. 317, 323-30 (1976)
(federal habeas statute permitting district judge to deny
free transcript to indigent defendant raising frivolous claim
in petition for collateral relief does not violate the
Constitution); Gallo. 1988 WL 60934, at * 1;
Morin v. United States. 522 F.2d 8, 9 (4th Cir.
1975) (indigent inmate is entitled to a copy of his trial
transcript only upon a showing of a particularized need). In
addition, in general there is no statutory requirement that
entitles a defendant to receive transcripts free of charge in
post-appeal proceedings. United States v. Groce. 838
F.Supp. 411 (E.D. Wis. 1993).
there is no indication that plaintiff has yet filed a
collateral challenge to his conviction or sentence, and
without a habeas petition having been filed, "[t]o grant
this request [for a transcript] at this juncture would only
encourage a 'fishing expedition'" by the
plaintiff. United States v. Anderson. No. 2:94crl63,
1997 WL 138970 (E. D. Va. Mar. 14, 1997). Moreover, plaintiff
makes no showing of a particularized need for the transcript
he seeks. As the Constitution does not require that an
indigent be supplied with a transcript for use in a
collateral proceeding absent a particularized need,
Britt. 404 U.S. at 227, plaintiff at present states
no claim for relief under §1983. West. 487 U.S.
other circumstances, plaintiff in deference to his pro se
status would be given an opportunity to particularize and
amend his allegations, to attempt to state a cognizable
§ 1983 claim. Here, however, such a step would be
futile, because plaintiff has chosen an inappropriate avenue
for the relief he seeks. In general, before a court can order
the clerk to provide a litigant with copies of court
documents at government expense, he must take the following
steps: (1) file a petition for a writ of habeas corpus or
other collateral relief; (2) obtain a court order allowing
him to proceed in forma pauperis: (3) file a request
for the documents in the same court where the habeas
application has been filed; and (4) provide a sufficient
explanation of his need for the documents to allow the court
to determine whether it is necessary to provide them.
United States v. Mitchell. 2008 WL 824226 (M.D. Fla.
Mar. 26, 2008). In this case, where there is no indication
that plaintiff has filed an application for collateral
relief, these requirements clearly have not been met.
Further, once such an application is filed, the appropriate
avenue to seek a copy of the transcript plaintiff allegedly
needs is to request it from the court from which collateral
relief is sought. Id.
it is hereby
that this action be and is DISMISSED WITH PREJUDICE for
failure to state a claim, pursuant to 28 U.S.C. §
1915A(b)(1); and it is further
that plaintiff is advised that, pursuant to 28 U.S.C. §
1915(g),  this dismissal may affect his ability to
proceed in forma pauperis in future civil actions;
and it is further
that the Clerk record this dismissal for purposes of the
Prison Litigation Reform Act; and it is further
that plaintiffs application to proceed in forma
pauperis (Docket # 2) be and is DENIED as moot.
is a final order for purposes of appeal. To appeal,
plaintiff must file a written notice of appeal with the
Clerk's Office within thirty (30) days of the date of
this Order. See Fed. R. App. P. 4(a). A written
notice of appeal is a short statement stating a desire to
appeal this Order and noting the date of the Order plaintiff
wants to appeal. Plaintiff need not explain the grounds for
appeal until so directed by the court.
Clerk is directed to send of copy of this Order to plaintiff
and to close this civil case.e
 Section 1915A provides:
(a) Screening.-The court shall review, before
docketing, if feasible or, in any event, as soon as
practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or
officer or employee of a governmental entity.
(b) Grounds for dismissal.-On review, the court shall
identify cognizable claims or dismiss the complaint, or any
portion of the complaint, if the complaint-
(1) is frivolous, malicious, or fails to state a claim
upon which relief can be granted; or
(2) seeks monetary relief from a defendant who is
immune from such relief.
Although plaintiff is confined at
Wallens Ridge State Prison, which is located in the Western
District of Virginia, the defendant is located in the Eastern
District of Virginia. Thus, venue is appropriate in this
district. See 28 U.S.C. § 1391.
 28 U.S.C. § 1915(g)
In no event shall a prisoner bring a civil action or
appeal a judgment in a civil action or proceeding under this
section if the prisoner has, on 3 or more prior occasions,
while incarcerated or detained in any facility, brought an
action or appeal in a court of the United States that was
dismissed on the grounds that it is frivolous, malicious, or
fails to state a claim upon which relief may be granted,
unless the prisoner is under imminent danger of serious