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06/30/87 Carroll Montgomery, v. Allie Sheffield

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


June 30, 1987

CARROLL MONTGOMERY, APPELLANT

v.

ALLIE SHEFFIELD, ET AL. 1987.CDC.276 DATE FILED: JUNE 30, 1987

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA, CA85-02945.

MEMORANDUM

This case arises from the district court's dismissal of appellant's case under 28 U.S.C. § 1915(d) (1982). In light of the arguments made in appellant's brief, we reverse and remand the district court decision dismissing the claims against the remaining defendant.

In the district court, pro se appellant brought suit for alleged violations of his due process and equal protection rights under 42 U.S.C. § 1983 (1982) as a result of delay in the production of the transcripts of his criminal trial. He sued his criminal trial attorney Sheffield and unknown court-reporter. The district court concluded that the case did not fall within section 1983. The court below dismissed the case as meritless under 28 U.S.C. § 1915(d).

On appeal, a prior motions panel affirmed the district court decision dismissing the claims against Sheffield. That panel concluded that Sheffield did not act under color of state law and, consequently, was not liable under 28 U.S.C. § 1983. The prior panel also appointed counsel for appellant and directed the filing of briefs.

In her brief, appointed counsel argues that the entire district court decision should be reversed because the court did not give an adequate statement of reasons and because Sheffield's actions fell within exceptions to the immunity doctrine. The prior panel was cognizant of counsel's concerns and implicitly rejected these arguments. We are unpersuaded that the prior panel's decision should be disturbed. We do, however, find merit in the counsel's third argument regarding the claims against the unknown court-reporter.

We have said repeatedly that the district court cannot dismiss under 28 U.S.C. 1915(d) when "the complaint has at least an arguable basis in law and fact." Brandon v. Dist. of Columbia Board of Parole, 734 F.2d 56, 59 (D.C. Cir. 1984), cert. denied, 469 U.S. 1127 (1985) (emphasis in original). Due process claims for delay in transcript production have been upheld. See Rheuark v. Shaw, 628 F.2d 297, 302 (5th Cir. 1980), cert. denied, 450 U.S. 93 (1981). Furthermore, the unknown court-reporter may not be immune from liability for such delay. See Hold v. Dunn, 741 F.2d 169, 170 (8th Cir. 1984) and cases cited therein. We think that counsel's brief demonstrates the complaint's arguable basis inlaw and fact. Therefore, we reverse and remand the district court decision dismissing the claims against the unknown court-reporter.

JUDGMENT

This case came to be heard on the record on appeal from the United States District Court for the District of Columbia and a brief was filed by appellant. The issues have been accorded full consideration by the court, and occasion no need for a published opinion See D.C. Cir. Rule 13(c).

On consideration thereof, it is

ORDERED and ADJUDGED by the court that the district court's decision dismissing the claims against the Unknown Court-Report be reversed and remanded for the reasons set forth in the accompanying memorandum.

The Clerk is directed to withhold issuance of the mandate herein until seven days after disposition of any timely petition for rehearing. See D.C. Cir. Rule 14.

PER CURIAM DECISION

19870630

© 2002 VersusLaw Inc.



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