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Harcum v. Kirby

United States District Court, E.D. Virginia, Alexandria Division

December 13, 2016

Ulysses Harcum, Plaintiff,
Suzanne P. Kirby, Defendant.


          Gerald Bruce Lee United States District Judg.

         This 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 a claim.[1]


         Plaintiff 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.[2] 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.

         In 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 transcript." Id.


         In 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 1949-1950.


         To 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.

         It is 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).

         Here, 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. at 42.

         Under 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.

         Accordingly, it is hereby

         ORDERED that this action be and is DISMISSED WITH PREJUDICE for failure to state a claim, pursuant to 28 U.S.C. ...

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