Grady v. Jones, et al (INMATE 3)

Filing 38

ORDER denying 35 Motion, as further set out. Signed by Honorable Judge Wallace Capel, Jr on 9/27/12. (scn, )

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IN THE DISTRICT COURT OF THE UNITED STATES FOR THE MIDDLE DISTRICT OF ALABAMA EASTERN DIVISION LARRY JERONE GRADY, # 143344, Petitioner, v. KENNETH JONES, et al., Respondents. ) ) ) ) ) ) ) ) ) Civil Action No. 3:11cv430-WKW (WO) ORDER ON MOTION The petitioner, a state inmate whose petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is pending before the court,1 has filed a pleading in this action styled as a “Motion for Declaratory and Injunctive Relief,” in which he requests that this court direct Warden Kenneth Jones of the Bullock County Correctional Facility to return to him his § 2254 petition, his supporting brief, and all related evidentiary materials. Doc. No. 35. The court construes this pleading as a Motion to Compel. The petitioner maintains, in cursory fashion, that the requested documents are material to his litigation in this pending habeas action. Doc. No. 35 at 4. However, he fails to show how the loss of these legal materials has prevented him from presenting a claim or prosecuting this action, or that he has suffered any actual injury as a result. In this and previous pleadings, the petitioner alleges that he first lost access to these legal materials, as 1 The petitioner filed his § 2254 petition (Doc. No. 1) on June 3, 2011. a result of actions by prison officials, on or around March 7, 2012.2 Doc. No. 35 at 2; see also Doc. No. 19 at 1 & Doc. No. 22 at 2. However, the record reflects that around six months before that date, on September 7, 2011, the petitioner filed a response to this court’s order directing him to show cause why his § 2254 petition should not be dismissed because it was not filed within the one-year limitation period established by 28 U.S.C. § 2244(d)(1) and for the other reasons asserted by the respondents in their answer to the § 2254 petition. See Doc. Nos. 10 & 17. The petitioner included 21 pages of exhibits with that response. See Doc. No. 17-1, Exhibits. D-O. The petitioner makes no claim that he did not have access to the legal materials he now seeks when he filed the September 7, 2011, response, and it is clear to the court that he did in fact have access to those materials when filing his response. Accordingly, because the petitioner has failed to establish any actual injury resulting from the loss of his legal materials, it is ORDERED that the petitioner’s Motion to Compel (Doc. No. 35) be and is hereby DENIED. Done this 27th day of September, 2012. /s/Wallace Capel, Jr. WALLACE CAPEL, JR. UNITED STATES MAGISTRATE JUDGE 2 The petitioner alleges that prison officials seized all documents in his possession on March 7, 2012, after determining that he had an excessive amount of documents in his property locker box. Doc. No. 35 at 2. He alleges that, thereafter, prison officials have refused his requests that they return his legal materials to him. 2

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