Damato v. Murphy

Filing 87

PRISCS - RULING AND ORDER. Petitioner's motions relating to an entry of default 68 72 74 79 80 are DENIED as moot. The motions seeking production of computer discs and tapes 67 78 and motions for free copies 77 84 86 are DENIED. Signed by Judge William I. Garfinkel on 3/5/09. (Corriette, M.)

UNITED STATES DISTRICT COURT DISTRICT OF CONNECTICUT GARY DAMATO v. WARDEN MURPHY RULING AND ORDER This ruling considers ten motions filed by petitioner in this habeas action. I. Motions for Default [docs. ##68, 72, 74, 79, 80] Petitioner has filed five motions in which he seeks entry of default against the respondent for failure to timely respond to the court's order to show cause and complains that the court has granted respondent extensions of time to file the response. The Second Circuit prefers that a case be decided on the merits rather than by entry of default followed by default judgment. See State St. Bank & Trust Co. v. Inversiones PRISONER Case No. 3:08cv855(SRU)(WIG)

Errazuriz Limitada, 374 F.3d 158, 168 (2d Cir. 2004) ("Default judgments `are generally disfavored and are reserved for rare occasions.'"), cert. denied, 543 U.S. 1177 (2005). Respondent

filed his answer and memorandum in opposition to the petition on January 30, 2009, before many of petitioner's motions were received by the court. As respondent has now complied with the

order to show cause, petitioner's motions relating to entry of default are denied as moot. 1

II.

Motions Seeking Computer Discs and Tapes [docs. ##67, 78] These two motions are identical with the first motion

including the referenced exhibits.

On December 9, 2008, the

court explained that petitioner had not indicated whether these materials still exist, who has them and what information he expects to discover. The court also stated that petitioner had

not provided specific information relating these materials to the claims raised in his federal habeas petition. See Doc. #43.

Petitioner states that he is complying with these requirements. Petitioner has attached to the first motion four pages of transcript from what appears to be the jury selection in petitioner's state criminal case. transcript. There is a discrepancy in the Page 13,

Defense counsel is introduced on page 12.

however, appears to jump back to the opening remarks of the prosecutor. page 14. The introduction of defense counsel appears again on

Based on this discrepancy, petitioner asks the court to

assume the existence of other errors and order production of the computer discs and tapes. Petitioner has not complied with the court's directions. has not provided evidence that the materials still exist or who has them. He has not related the one discrepancy he identified Petitioner's motions for production He

to any issue in this case.

of computer discs and tapes are denied.

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III. Motions for Copies [docs. #77, 84, 86] Petitioner seeks free copies of documents filed by respondent and free copies of the docket sheet. On January 21,

2009, the court sent petitioner a copy of the docket sheet and notified him that he will not be provided a free copy of the docket sheet every time he files motions or free copies of motions he has filed. See Doc. #55. Petitioner's request for a Petitioner may contact

free copy of the docket sheet is denied.

the Clerk to ascertain the number of pages in the docket sheet and the cost for a copy. In addition, petitioner has no constitutional right to free photocopies, see, e.g., Collins v. Goord, 438 F. Supp. 2d 399, 416 (S.D.N.Y. 2006), and in forma pauperis status does not entitle him to free copies of documents in the court's file. See, e.g., Guinn v. Hoecker, 43 F.3d 1483 (10th Cir. 1994) (28 U.S.C. § 1915 does not include right to free copy of any document in record; court may constitutionally require indigent plaintiff to demonstrate need for free copy) (Table), cert. denied, 514 U.S. 1118 (1995); Douglas v. Green, 327 F.2d 661, 662 (6th Cir. 1964) (28 U.S.C. § 1915 does not include the right to receive copies of court orders without payment). Petitioner's requests

for free copies of documents filed by respondent are denied. Petitioner may contact the Clerk to determine the cost of the copies he wants. If petitioner cannot pay the required copy fee,

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he may file a motion explaining his need for the particular documents and attach evidence demonstrating his lack of funds. IV. Conclusion Petitioner's motions relating to an entry of default [docs. ##68, 72, 74, 79, 80] are DENIED as moot. The motions seeking

production of computer discs and tapes [docs. ##67, 78] and motions for free copies [docs. #77, 84, 86] are DENIED. SO ORDERED at Bridgeport, Connecticut this March 2009. /s/ William I. Garfinkel WILLIAM I. GARFINKEL UNITED STATES MAGISTRATE JUDGE 5th day of

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