Rheuark v. Shaw, 76-1486
| Decision Date | 03 March 1977 |
| Docket Number | No. 76-1486,76-1486 |
| Parties | Jack RHEUARK, Plaintiff-Appellant, v. Bill SHAW, Clerk of Dallas County Court, and the State of Texas, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Jack Rheuark, pro se.
John T. Mitchell, Dallas, Tex. (Court-appointed-not under the act), for plaintiff-appellant.
Henry Wade, Criminal District Atty., Dallas, Tex., for defendants-appellees.
Appeal from the United States District Court for the Northern District of Texas.
Before MORGAN and HILL, Circuit Judges, and NOEL, * District Judge.
The issue in this case is whether a prisoner's suit for damages and injunctive relief against a state court clerk and court stenographer for their alleged failure to forward a state trial court transcript to the state appellate court is in the nature of a civil rights suit or a habeas corpus petition. Since we conclude that the action is in the nature of a civil rights suit, we reverse the dismissal by the district court and remand for further proceedings.
Appellant, Jack Rheuark, filed a complaint in the district court seeking injunctive and monetary relief against the clerk of the Dallas County Court and the court reporter pursuant to 42 U.S.C.A. § 1983. Appellant was convicted of armed robbery in a Texas state court and sentenced on February 10, 1975. His attorney promptly filed a notice of appeal to the Texas Court of Criminal Appeals. The state trial court then ordered that the transcript of the trial be prepared at state expense. Approximately twelve months thereafter, appellant instituted the instant proceeding against the court clerk and the court stenographer alleging that they were unreasonably delaying the preparation and transmittal of his state trial court records because of his indigent status. Appellant contends that the actions of the defendants discriminate against him and deny him equal access to the appellate process.
The district court dismissed the complaint. It concluded that appellant's proper remedy was a habeas petition since he was challenging his physical imprisonment. This appeal was then perfected.
Subsequent to the dismissal, appellant filed a habeas petition in the district court, alleging speedy trial violations and other constitutional errors in his Texas robbery trial. The district court denied relief on the basis that appellant's state appeal was pending and, thus, he had failed to exhaust his state remedies.
On appeal from the dismissal of his habeas petition, this court reversed. Rheuark v. Wade, 540 F.2d 1282 (5th Cir. 1976). Noting that the district court took no notice of appellant's allegation that fifteen months of unexcused delay in preparing a transcript had rendered his state remedies practically unavailable, we remanded the case to the district court "with instructions to determine if the delay in preparing a transcript of (appellant's) state trial has been justifiable." Id. at 1283. Thus, after two years, two district court cases, and now two appellate decisions, appellant remains without a transcript ordered furnished to him by the state court two years ago, and which he must have in order to prosecute his appeal. In addition, appellant has made a variety of requests directed to the Texas state courts to no avail.
Suits against state court clerks are not particularly uncommon in this circuit and have uniformly been considered civil rights actions. The most analogous case to the one sub judice is Qualls v. Shaw, 535 F.2d 318 (5th Cir. 1976). In Qualls, a state prisoner, preparatory to filing a motion for collateral relief, requested of the court clerk the cost of sending him copies of records of another similar lawsuit and of the grand jury lists for 1970, 1971 and 1972. The request was not acknowledged. The prisoner alleged that the records he sought were regularly made available to others. He sued for monetary relief and requested an order directing the clerk to provide the information requested. The district court dismissed the complaint as in the nature of habeas corpus. In reversing, this court said The district court erred in its analysis of appellant's complaint. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) provides that a state inmate may not utilize the civil rights act to challenge his conviction, thus bypassing habeas corpus procedures and the requirement that he exhaust state remedies. In this case, the appellant is not challenging his conviction and he is not seeking his release from custody. He is claiming that he has been denied access to records which are made available to others and has been subjected to discriminatory treatment. Were he to prevail in this action the court's opinion would not impinge in any manner on...
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