Perkins v. Miller et al

Filing 66

OMNIBUS ORDER AND ORDER denying 61 Motion to Produce as moot; denying 63 Motion to Dismiss Due to Clerical Error of the Court as moot. Signed by Magistrate Judge Michael T. Parker on May 19, 2011. (jsm)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
JACKSON DIVISION
MARVIN PERKINS

PLAINTIFF

V.

Civil Action No.: 3:09cv169-TSL-MTP

MARLIN MILLER et al.

DEFENDANTS
OMNIBUS ORDER

The Plaintiff appeared and participated in an omnibus hearing before the undersigned
United States Magistrate Judge on May 10, 2011. Plaintiff appeared pro se; no appearance was
made by the one remaining defendant, Harvey Rayborn. The court scheduled this hearing for the
combined purposes of conducting a Spears hearing,1 a scheduling/case management hearing, and
a discovery conference. The court’s purpose in conducting the hearing is to ensure the just,
speedy, and inexpensive determination of this pro se prisoner litigation. After due consideration
of the issues involved in this case and the requests for discovery, the court does hereby find and
order as follows:
JURISDICTION AND SUMMARY OF CLAIMS
Jurisdiction of this case is based upon 42 U.S.C. § 1983. Plaintiff’s claim against
Defendant Harvey Rayborn accrued while he was a post-conviction inmate at South Mississippi
Correctional Institute. Currently, Plaintiff is still incarcerated there. A May 19, 2010 Order by the
court dismissed Defendants Marlin Miller and Ronnie Pennington because the court liberally
construed Plaintiff’s claims as to those defendants as habeas corpus claims pursuant to 28 U.S.C.
§ 2254, which the court found to be barred due to a failure to available exhaust state remedies
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Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985).

pursuant to 28 U.S.C. § 2254 (b)(1)(A). See Order [42]. Plaintiff’s claims were clarified and
amended by sworn testimony during the Spears hearing. As a result, the following claim,
pursuant to 42 U.S.C. § 1983, is pending before the Court, and no further amendments will be
allowed absent a showing of good cause:
Plaintiff asserts a violation of due process claim against Harvey Rayborn, who served as
the court reporter during the course of Plaintiff’s supervised release revocation hearing on
January 12, 2009. See Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980)(“[D]ue process can be
denied by any substantial retardation of the appellate process, including an excessive delay in the
furnishing of a transcription of testimony necessary for the completion of an appellate record.”).
In support of this claim, Plaintiff alleges that he has submitted at least two requests to Harvey
Rayborn for a free transcript of Plaintiff’s revocation hearing. Plaintiff alleges that he was denied
those requests on both occasions and argues that a failure to provide his transcript without a fee
violates his right to due process in that it prevents him from developing his habeas claims and/or
petition for post conviction relief in state court. Plaintiff seeks injunctive relief from the court,
namely that the court order Defendant to provide Plaintiff with a transcript without assessing
Plaintiff a fee. Currently, Plaintiff has no post conviction relief petition pending before the state
trial court or the Mississippi Supreme Court. See Order [42] at 4.
DISCOVERY ISSUES
All discovery requests made by Plaintiff are contained in Plaintiff’s pending motion. See
Docket Entry [61].

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PENDING MOTIONS
Plaintiff filed a [61] Motion for Production of Documents wherein he moves to have
Rankin County Jail produce incarceration records, medical records, and any records of
disciplinary infractions or administrative grievances submitted by Plaintiff Rankin County Jail
from June 19, 2007 until his release date of August 30, 2008. This motion is denied as moot
given that Plaintiff’s claims against Marlin Miller and Ronnie Pennington were dismissed. This
request for production of documents is not relevant to Plaintiff’s claim against Harvey Rayborn.
Plaintiff filed a [63] Motion to Dismiss Due to Clerical Error of the Court wherein
Plaintiff reasserts his habeas corpus claims against the State of Mississippi. This motion is
likewise dismissed as moot given that no habeas corpus claims are pending before this court in
the instant suit.
MOTIONS DEADLINE
No deadline for motions has been set. The court will take Plaintiff’s claim under
advisement and will issue a separate order addressing the merits of the claim. In the event that
Plaintiff is found to have a cognizable claim against Defendant, the court will enter a scheduling
order at such time.
Plaintiff’s failure to advise this court of a change of address or failure to comply with any
order of this court will be deemed as a purposeful delay and may be grounds for dismissal
without notice to Plaintiff.
SO ORDERED, this the 19th day of May, 2011.
s/ Michael T. Parker
United States Magistrate Judge
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