Thurman v. Jordan

Filing 22

ORDER vacating that portion of 7 constituting a Recommendation to dismiss plaintiff's injunctive/mandamus claim. Ordered by U.S. Mag Judge Claude W. Hicks, Jr. on 6/14/10. (CWH)

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IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF GEORGIA MACON DIVISION : : Plaintiff : : VS. : : DAN JORDAN, Clerk of the : Superior Court of Jasper County, : : Defendant : ____________________________________ TYRONE THURMAN, NO. 5:10-CV-22 (CAR) PROCEEDINGS UNDER 42 U.S.C. 1983 BEFORE THE U. S. MAGISTRATE JUDGE ORDER On February 23, 2010, the undersigned recommended that plaintiff's request that this Court order the defendant, Clerk of Jasper County Superior Court Dan Jordan, to produce the transcripts and records of his criminal trial, which the undersigned construed as a request for mandamus relief, be dismissed. Plaintiff's claim for damages was permitted to go forward. In English v. Laidler, Civil Action No. 5:09-CV-245 (CAR), the Honorable C. Ashley Royal, Chief U. S. District Judge, rejected the recommendation of the undersigned in a case presenting similar facts. Judge Royal found that the plaintiff's request in English was more in the nature of an injunction rather than mandamus and stated that plaintiff's claim for injunctive relief could not be "dismissed as frivolous on initial review." In light of Judge Royal's order in English and the uncertainty surrounding this issue (compare Bailey v. Silberman, 226 Fed. App'x 922 (11th Cir. Apr. 2, 2007) and Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1275-76 (5th Cir. 1973) with Carter v. Hardy, 526 F.3d 314, 315 (5th Cir. 1976), the undersigned hereby VACATES that portion of the ORDER AND RECOMMENDATION (Tab #7) constituting the recommendation to dismiss plaintiff's injunctive/mandamus claim. Such claim will be allowed to proceed and the defendant can address the issue in a dispositive motion. SO ORDERED, this 14th day of JUNE, 2010. CLAUDE W. HICKS, JR. UNITED STATES MAGISTRATE JUDGE NOTICE TO ALL PARTIES PURSUANT TO THE COURT'S ORDER REGARDING DISCOVERY SET OUT ABOVE, NO DISCOVERY SHALL BE PERMITTED IN THIS CASE UNTIL AN ANSWER OR DISPOSITIVE MOTION (e.g., MOTION TO DISMISS, MOTION FOR SUMMARY JUDGMENT, MOTION FOR JUDGMENT ON THE PLEADINGS) HAS BEEN FILED BY THE DEFENDANT. PURSUANT TO THE FEDERAL RULES OF CIVIL PROCEDURE, DISCOVERY (DEPOSITIONS, INTERROGATORIES, REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS, REQUESTS FOR ADMISSIONS, ETC., AND RESPONSES THERETO) SHALL NOT BE FILED WITH THE CLERK OF COURT. NOTE THAT THIS IS A CHANGE IN THE PROCEDURE HERETOFORE FOLLOWED IN THIS DISTRICT. DO NOT FILE ANY DISCOVERY WITH THE COURT UNLESS YOU ARE SPECIFICALLY DIRECTED TO DO SO BY THE COURT OR UNLESS FILING IS NECESSARY TO SUPPORT OR CONTEST A MOTION TO COMPEL DISCOVERY, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. THE CLERK IS DIRECTED TO RETURN ANY SUBMITTED DISCOVERY TO THE PARTY SUBMITTING IT UNLESS IT IS FILED PURSUANT TO AN ORDER OF THE COURT OR IN SUPPORT OF A MOTION TO COMPEL, OBJECTION TO DISCOVERY, DISPOSITIVE MOTION, OR SIMILAR MOTION. 2

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