Rodgers v. Jefferson Parish Sheriff's Office et al

Filing 91

ORDER AND REASONS: ORDERED that 89 Motion for Transcripts at court's expense is DENIED. FURTHER ORDERED that 90 MOTION for Extension of Time to File is construed as a motion for extension of time to file an appeal with the Fifth Circuit, and the motion is likewise DENIED. Signed by Judge Martin L.C. Feldman.(cml)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA

GARY DANIEL RODGERS

CIVIL ACTION

v.

NO. 15-2642

JEFFERSON PARISH
SHERIFF’S OFFICE, ET AL.

SECTION "F"

ORDER AND REASONS

Before the Court are two motions by Gary Daniel Rodgers: (1)
motion for transcripts at the Court’s expense; and (2) motion for
extension of time for production of documents to properly file an
appeal.

For the reasons that follow, the motions are DENIED.
Background

Gary Daniel Rodgers is an inmate at Angola. 1

Proceeding pro

se and in forma pauperis, Rodgers sued Jefferson Parish Sheriff
Newell Normand, Roney McIntyre, Jr., Jairus Boudoin, and former
Jefferson Parish Sheriff’s Deputy Jamal Perrier pursuant to 42
U.S.C.

§

1983;

he

alleged

that

when

he

was

incarcerated

at

Jefferson Parish Correctional Center as a pretrial detainee on

Rodgers is serving a sentence of life in prison plus 60 years
after having been convicted of aggravated rape and sexual battery.
1
1

December 11, 2014, Perrier (then-a sheriff’s deputy) failed to
protect the plaintiff from the use of excessive force by other
deputies. After settling his claim against one defendant and after
his

claims

against

others

were

dismissed

without

prejudice,

Perrier was the only remaining defendant. 2
Magistrate Judge Wilkinson conducted a trial and evidentiary
hearing on November 29, 2016 in which the plaintiff, pro se,
participated by video.

Magistrate Judge Wilkinson found that

Perrier cannot be liable for any deliberate indifferent failure to
protect Rodgers or bystander liability. Finding that Perrier acted
reasonably under the circumstances that justified his reasonable
failure to intervene physically in the rapid and unforeseen attack
on Rodgers such that Rodgers has not proved his failure to protect
claim, Magistrate Judge Wilkinson recommended that Rodger’s claim
against Perrier be dismissed with prejudice and that judgment be
entered in favor of the defendant.

Over Rodger’s objections, the

Court adopted the magistrate judge’s findings and recommendations
and issued a judgment in favor of the defendants (dismissing
Rodgers’s claims against the Sheriff and against Perrier with

The plaintiff’s claims against the Sheriff were dismissed after
a settlement was reached with the Sheriff only, and his claims
against McIntyre and Boudoin were dismissed without prejudice
under Rule 4(m) when the U.S. Marshals could not locate them for
service.
2
2

prejudice and dismissing his claims against McIntyre and Boudoin
without

prejudice).

Rodgers

then

filed

a

motion

to

release

evidence, which the Court granted in part (insofar as he requested
the exhibits in the Clerk’s Office custody) and denied in part
(insofar as he requested free copies of transcripts).
For a second time, Rodgers requests copies of his trial
transcripts at the government’s expense, this time invoking a Fifth
Circuit rule; he also seeks additional time to prepare and file
his appeal.
I.
Rodgers

seeks

copies

of

transcripts

at

the

government’s

expense and also appears to request additional time to prepare and
lodge his appeal after he receives the documents he seeks.

In

support of his request for transcripts at the government’s expense,
he cites a rule applicable in the Fifth Circuit Court of Appeals,
Fifth Circuit Rule 27.1, which allows the Fifth Circuit Clerk of
Court to rule on certain motions. 3 Insofar as he seeks an extension
of time for production of documents, Rodgers offers no authority

Under Federal Rule of Appellate Procedure 27(b), the Clerk has
discretion to act on certain procedural motions, such as motions
to obtain transcripts at the government’s expense (Fifth Circuit
Rule 27.1.19). Any such motion is better directed to the Fifth
Circuit Clerk of Court.
3
3

that might support his request that this Court extend the Fifth
Circuit’s deadlines for filing appeals.

Both requests must be

denied.
The right to a free transcript in federal court is conditioned
upon the requester’s ability to prove his indigency, a particular
need for the transcript in connection with a subsequent proceeding,
and that no alternative would suffice.

See 28 U.S.C. 753(f).

Mr.

Rodgers has neither appealed this Court's prior order nor requested
permission to proceed in forma pauperis on appeal.

Even if he

had, the Court would nevertheless, at this time, deny his request
for free copies of transcripts.

Section 753(f) of Title 28 of the

United States Code states, in part:
Fees for transcripts furnished in other proceedings to
persons permitted to appeal in forma pauperis shall
also be paid by the United States if the trial judge
or a circuit judge certifies that the appeal is not
frivolous (but presents a substantial question).

See also Fisher v. Hargett, 997 F.2d 1095 (5th Cir. 1993)(citing
Britt v. North Carolina, 404 U.S. 226, 227 (1971)); United States
v. MacCollum, 426 U.S. 317 (1976).

In other words, an indigent

party may be entitled to transcripts without prepayment if the
Court certifies that an appeal is not frivolous.
has not been met.
4

This condition

Mr. Rodgers has not filed his notice of appeal with the Fifth
Circuit, nor has he requested pauper status on appeal.

Nor has he

provided the Court with an explanation of the issues he advances
or will advance on appeal.
whether

his

appeal

substantial question.

is

Thus, the Court is unable to determine
frivolous

or

whether

it

presents

a

Rodgers also fails to cite any authority in

support of his request that this Court allow him more time to file
his appeal with the Fifth Circuit.

Accordingly, IT IS ORDERED:

that the motion for production of documents to prepare his appeal
in which he requests transcripts without prepayment is hereby
DENIED.

IT IS FURTHER ORDERED: that the motion for extension of

time for production of documents is construed as a motion for
extension of time to file an appeal with the Fifth Circuit, and
the motion is likewise DENIED.

New Orleans, Louisiana, September 6, 2017.
_____________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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