Neal v. Burns

• Decision Date: 29 December 2022
• Docket Number: 3:19-CV-02908-N-BH
• Parties: ALEX PERRY NEAL, Plaintiff, v. ROBERT D. BURNS, III, Chief Justice, Defendant.
• Court: U.S. District Court — Northern District of Texas

ALEX PERRY NEAL, Plaintiff,
v.
ROBERT D. BURNS, III, Chief Justice, Defendant.

No. 3:19-CV-02908-N-BH

United States District Court, N.D. Texas, Dallas Division

December 29, 2022

FINDINGS, CONCLUSIONS, AND RECOMMENDATION REFERRED TO U.S. MAGISTRATE JUDGE ^[1]

IRMA CARRILLO RAMIREZ UNITED STATES MAGISTRATE JUDGE

Based on the relevant findings and applicable law, the case should be DISMISSED.

I. BACKGROUND

Alex Perry Neal (Plaintiff) sues the Chief Justice of the Fifth District Court of Appeals of Texas, individually and in his official capacity, and the State of Texas (collectively Defendants) under the Freedom of Information Act, 5 U.S.C. § 552 (FOIA); 28 U.S.C. § 753; the Texas Rules of Appellate Procedure, and various federal criminal statutes. (doc. 3 at 3-4; doc. 8 at 2-4; doc. 15 at 2.)^[2] He alleges that Defendant “improperly denied [his] right to public information related to a trial court record on appeal ... most likely because he was conspiring in malicious criminal activity allegedly committed by [a] Collin County Judge.” (doc. 3 at 4; see also doc. 8 at 5.) The trial court record appears to relate to criminal proceedings against Plaintiff in the 296th District Court of Collin County, Texas. (doc. 3 at 5-6.) He seeks either the complete Reporter's Record for case No. 199-83919-2018 in the 296th District Court or for cause no. 05-19-00753-CR in the Fifth District Court

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of Appeals Dallas, or monetary damages. (doc. 3 at 4; doc. 8 at 2, 6; doc. 15 at 2.) No process has been issued in this case.

II. PRELIMINARY SCREENING

Because Plaintiff is proceeding in forma pauperis, his complaint is subject to preliminary screening under 28 U.S.C. § 1915(e)(2)(B). It provides for sua sponte dismissal of the complaint, or any portion thereof, if found to be frivolous or malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief against a defendant who is immune to such relief.

A complaint is frivolous when it “lacks an arguable basis either in law or in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). A claim lacks an arguable basis in law when it is “based on an indisputably meritless legal theory.” Id. at 327. A complaint fails to state a claim upon which relief may be granted when it fails to plead “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); accord Ashcroft v. Iqbal, 556 U.S. 662, 687 (2009). To avoid dismissal for failure to state a claim, plaintiffs must allege facts sufficient to “raise the right to relief above the speculative level.” Twombly, 550 U.S. at 555. Mere “labels and conclusions” nor “a formulaic recitation of the elements of a cause of action” suffice to state a claim upon which relief may be granted. Id.

III. 28 U.S.C. § 1361

Because Plaintiff seeks to compel Defendants to provide him trial or appellate court records, his complaint may be liberally construed as seeking a writ of mandamus under 28 U.S.C. § 1361.^[3]

Section 1361 provides that “[t]he district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States or any agency

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thereof to perform a duty owed to the plaintiff.” 28 U.S.C. § 1361. “The common-law writ of mandamus, as codified in 28 U.S.C. § 1361, is intended to provide a remedy for a plaintiff only if he has exhausted all other avenues of relief and only if the defendant owes him a clear nondiscretionary duty.” Heckler v. Ringer, 466 U.S. 602, 616 (1984). It “is an extraordinary remedy for extraordinary causes.” In re Corrugated Container Antitrust Litig. v. Mead Corp., 614 F.2d 958, 961-62 (5th Cir.1980) (internal citations and quotations omitted). Federal district courts do not have the power to issue a writ of mandamus against state courts, officers or agencies. See Santee v. Quinlan, 115 F.3d 355, 357 (5th Cir.1997) (affirming dismissal of petition for writ of mandamus as frivolous because federal courts lack the power to mandamus state courts in the performance of their duties); Moye v. Clerk, DeKalb County Sup. Court, 474 F.2d 1275, 1275-76 (5th Cir.1973) (federal courts are without power to issue writs of mandamus against state officers in the performance of their duties where mandamus is the only relief sought).

To the extent Plaintiff seeks mandamus relief to compel Defendants to provide him trial or appellate court records, his claim should be dismissed as frivolous or for failure to state a claim.

IV. FOIA

Plaintiff expressly sues under FOIA.

FOIA embodies a philosophy of full disclosure by government agencies and requires them to make their records available to the public. 5 U.S.C. § 552; Halloran v. Veterans Admin., 874 F.2d 315, 318 (5th Cir. 1986). Many of these records must be published in the Federal Register; the rest may be requested from an agency. 5 U.S.C. § 552(a). Upon receipt of a request for records, an agency must make the requested records promptly available to the requesting party, unless the records fall under one of nine exemptions listed in the FOIA. Id. § 552(a) & (b). The agency must

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disclose any “reasonably segregable portion of a record” after deletion of the exempt portion of the record. Batton v. Evers, 598 F.3d 169, 178 (5th Cir. 2010) (citing id. § 522(b)). If an agency improperly withholds agency records, a district court has jurisdiction to enjoin it from withholding those records and to order their production. 5 U.S.C. § 552(a)(4)(B); U.S. Dep't of Justice v. Tax Analysts, 492 U.S. 136, 143 (1989). An agency record is “improperly” withheld if it does not fall within one of the nine exemptions enumerated in the FOIA. See Tax Analysts, 492 U.S. at 150-51. An agency has the burden of proving that particular documents or portions thereof are exempt from disclosure. Sharyland Water Supply Corp. v. Block, 755 F.2d 397, 398 (5th Cir. 1985).

FOIA applies only to documents under the control of federal agencies, not state agencies. Wells v. State Attorney Generals of La., 469 Fed.Appx. 308, 309 (5th Cir. 2012) (per curiam) (citing FOIA); Wright v. Curry, 122 Fed.Appx. 724, 725 (5th Cir. 2004) (per curiam) (citing FOIA); Coleman v. CCI, No. 3:17-cv-1866-D-BN, 2017 WL 3530596, at *1 (N.D. Tex. July 18, 2017) (collecting cases), recommendation adopted, 2017 WL 3531532 (N.D. Tex. Aug. 16, 2017). Because Plaintiff does not allege that court records he seeks are in the control of a federal agency, he fails to state a claim upon which relief may be granted under FOIA.

V. 28 U.S.C. § 753

Plaintiff also expressly sues under 28 U.S.C. § 753.

Section 753(a) provides that federal district courts “shall appoint one or more court reporters.” 28 U.S.C. § 753(a). Paragraph (f) provides:

Each reporter may charge and collect fees for transcripts requested by the parties, including the United States, at rates prescribed by the court subject to the approval of the Judicial Conference. He shall not charge a fee for any copy of a transcript delivered to the clerk for the records of court. Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by

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the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose if the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal. 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). The reporter may require any party requesting a transcript to prepay the estimated fee in advance except as to transcripts that are to be paid for by the United States.

28 U.S.C. § 753(f). This

Section 753, also known as “The Court Reporters Act,” does not create a private cause of action for its enforcement or for monetary relief. Horan v. Wilcox & Fetzer Ltd., 153 Fed.Appx. 100, 101-102 (3d Cir. 2005). As the Third Circuit Court of Appeals explained:

Section 753 does not create or imply a right of action for individuals to support a federal question cause of action under Section 1331. There is no language in the statute indicating that Congress intended to create or alter any civil liabilities for a violation of Section 753. Further, Congress expressly provided judicial means for enforcing compliance with the Act. See 28 U.S.C. § 753(c) (“The reporters shall be subject to the supervision of the appointing court and the Judicial Conference in the performance of their duties, including dealings with parties requesting transcripts.”)

Id. at 102. Because the Court Reporters Act expressly applies to federal district courts and does not create a private cause of action, Plaintiff fails to state a claim upon which relief may be granted under this statute.

VI. 25 C.F.R. § 11.448

Plaintiff also sues for abuse of office under 25 CFR § 11.448.

Section 11.448 of the Code of Federal Regulations, entitled “Abuse of Office,” provides:

A person acting or purporting to act in an official capacity or taking advantage of such actual or purported capacity commits a misdemeanor if, knowing that his or her conduct is illegal, he or she:

(a) Subjects another to arrest, detention, search, seizure, mistreatment, dispossession,

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assessment, lien or other infringement of personal or property

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