Birgans v. Claiborne Parish Detention Center
Filing
46
ORDER granting 41 Motion to Provide Petitioner with a copy of the State Court Record. Respondent, shall provide Petitioner with a paper copy of the entire record within the fourteen days of the date of this Order. IT IS FURTHER ORDERED that Res pondent file a certificate of compliance immediately upon furnishing Petitioner with a copy of the entire record. FURTHER ORDER granting in part 45 Motion for Extension of Time. Petitioner's deadline to file his response is hereby extended twenty-one days following the filing of the State's certificate of service of the entire state court record. Signed by Magistrate Judge Karen L Hayes on 8/19/14. (crt,Crawford, A)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
FREDERIC LUBRON BIRGANS
LA. DOC # 564392
CIVIL ACTION NO. 3:12-cv-2568
SECTION P
VS.
JUDGE DONALD E. WALTER
WARDEN JOHNNY SUMLIN
MAGISTRATE JUDGE HAYES
ORDER1
Before the undersigned Magistrate Judge, on reference from the District Court, is a
“Motion for the State to Provide the Entire Record,” [doc. # 41], and a “Motion for Extension of
Time to File [a] Rebuttal,” [doc. # 45], filed by pro se Petitioner Frederic L. Birgans.
Respondent does not oppose the Motions. For the reasons stated below, the Motion to provide
the state court record, [doc. # 41], is GRANTED and the Motion for an extension of time, [doc.
# 45], is GRANTED IN PART.
I. Motion to Provide the State Court Record
On April 8, 2014, the Court ordered Respondent to file an answer, a memorandum brief
of law, a certified copy of the state court record, a certified copy of all documents filed in
connection with any appeal or application for post-conviction relief, and certified copies of all
state court dispositions. [doc. # 24, p. 4-6]. As a condition to the Clerk’s acceptance of the
filings, the Court ordered Respondent to “include a certificate indicating that a copy thereof has
been furnished to [Petitioner].” Id. at 6.
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As this is not one of the motions excepted in 28 U.S.C. § 636(b)(1)(A), nor dispositive
of any claim on the merits within the meaning of Rule 72 of the Federal Rules of Civil
Procedure, this ruling is issued under the authority thereof, and in accordance with the standing
order of this Court. Any appeal must be made to the district judge in accordance with Rule 72(a)
and L.R. 74.1(W).
On June 24, 2014, Respondent complied with the Court’s Order to file the entire state
court record, but Respondent failed to provide Petitioner with a copy. In fact, Respondent filed a
letter stating that it did not send Petitioner a copy of the record because it “was uncertain as to
whether the Court expected a paper copy served upon [Petitioner] of the entire record.” [doc. #
32-2]. Respondent further stated that it “can forward [Petitioner] one in electronic form either on
a disc or thumb drive or paper copy if you so order.” Id.
Petitioner filed the instant Motion on July 3, 2014. [doc. # 41]. He claims that he has not
received a copy of the state court record and that, without that record, he is unable to prepare an
effective response. Id. at 2. He therefore asks the Court to order Respondent to send him a paper
copy of the entire record. Id. Upon consideration, Petitioner’s Motion is GRANTED.
IT IS HEREBY ORDERED that Respondent, within fourteen (14) days of the date of
this Order (i.e. by September 2, 2014), provide Petitioner with a paper copy of the entire record.
IT IS FURTHER ORDERED that, immediately upon furnishing Petitioner with the
entire record, Respondent shall file a certificate indicating that it has furnished the documents
accordingly.
II. Motion for an Extension of Time
Petitioner’s Response was due on August 14, 2014. [See doc. # 37]. Petitioner submits
that he has been unable to prepare a response because he “has been transferred many times
attempting to gain meaningful access to an adequate law library.” [doc. # 45, p. 1]. Although he
is now housed in a facility with an adequate law library, he submits that he is currently unable to
utilize the library because he is in “lockdown.” Id. at 2. According to Petitioner, “all new
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arrivals must serve 6 to 10 weeks in lockdown . . . where there is no access to anything.” Id.
Consequently, he asks the Court to grant him an “undetermined amount of time” in which to
respond, or “until such time as DWCC officials remove[] him from lockdown and place[] him
into normal inmate population . . . .” Id. at 1, 3. While Petitioner’s argument regarding his need
an extension due to his being placed in administrative segregation upon arrival at a new facility is
reasonable, the court is not inclined to grant an indefinite extension, and finds that he has not
adequately supported a need for same. However, the undersigned finds that it would be
unreasonable to require the Petitioner to re
to the Respondent’s answer before being
provided with a copy of the state court record. Therefore,
IT IS HEREBY ORDERED that Petitioner’s motion for an extension of time [doc. #
45] is GRANTED to the following extent: Petitioner’s deadline to file his response is hereby
extended to twenty-one (21) days following the filing of the State’s certificate of service as
referenced above.
In Chambers, Monroe, Louisiana, this 19th day of August, 2014.
__________________________________
KAREN L. HAYES
UNITED STATES MAGISTRATE JUDGE
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