Wood v. Texas Department of Criminal Justice—Rehabilitation & Re-Entry Program

Fifth Circuit

Wood v. Texas Department of Criminal Justice—Rehabilitation & Re-Entry Program

419 F. App'x 471

CourtCourt of Appeals for the Fifth Circuit

DecidedMarch 22, 2011

Docket10-40532

StatusUnpublished

This text of 419 F. App'x 471 (Wood v. Texas Department of Criminal Justice—Rehabilitation & Re-Entry Program) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Wood v. Texas Department of Criminal Justice—Rehabilitation & Re-Entry Program, 419 F. App'x 471 (5th Cir. 2011).

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Opinion

PER CURIAM: *

Damon Lee Wood, Texas prisoner #590030, filed a “Petition to Perpetuate (Pre-Suit Discovery) Testimony”, pursuant to Federal Rule of Civil Procedure 27(a), seeking to depose various prison officials and to conduct -written discovery. Wood stated that he intended to file a 42 U.S.C. § 1983 action, asserting retaliation for exercising his First Amendment rights and denial of due process in connection with the denial of parole, but that he could not do so without first conducting court-ordered discovery. The petition was filed by the clerk of court as a § 1983 complaint.

Proceeding pro se and informa pauper-is, Wood appeals the district court’s: dismissal of his action for failure to comply with the magistrate judge’s order to file a proper § 1983 complaint; and denial of his Rule 27 motion concerning pre-action discovery.

*473 Wood states he complied with the magistrate judge’s order by filing a proper § 1988 lawsuit, albeit in the Beaumont, rather than the Lufkin, Division. The clerk’s office confirms Wood’s § 1988 action is pending in the Beaumont Division. Because our court cannot grant further relief on that issue, that portion of this appeal is dismissed as moot. See Bailey v. Southerland, 821 F.2d 277, 278-79 (5th Cir.1987).

The denial of the Rule 27 motion is reviewed for abuse of discretion. Hibernia Nat. Bank v. Robinson, 67 Fed.Appx. 241, - (5th Cir.2003). Wood did not show he required pre-action discovery to prevent the failure or delay of justice; specifically, he failed to show the pre-action discovery he sought would otherwise be lost. See Fed.R.Civ.P. 27(a)(3). Wood’s contentions appear predicated on his believing he has an absolute right to such discovery; that belief is incorrect. See In re Eisenberg, 654 F.2d 1107, 1112 (5th Cir.1981). There was nothing to prevent Wood from filing a complaint and seeking discovery after the court completed its judicial screening of the case. See id. Because Wood has not shown the district court’s denial of his Rule 27 motion was an abuse of discretion, that portion of the district court’s judgment is affirmed. See In re Price, 723 F.2d 1193, 1194 (5th Cir.1984).

DISMISSED IN PART; AFFIRMED IN PART.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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PER CURIAM: *

Damon Lee Wood, Texas prisoner #590030, filed a “Petition to Perpetuate (Pre-Suit Discovery) Testimony”, pursuant to Federal Rule of Civil Procedure 27(a), seeking to depose various prison officials and to conduct -written discovery. Wood stated that he intended to file a 42 U.S.C. § 1983 action, asserting retaliation for exercising his First Amendment rights and denial of due process in connection with the denial of parole, but that he could not do so without first conducting court-ordered discovery. The petition was filed by the clerk of court as a § 1983 complaint.

Proceeding pro se and informa pauper-is, Wood appeals the district court’s: dismissal of his action for failure to comply with the magistrate judge’s order to file a proper § 1983 complaint; and denial of his Rule 27 motion concerning pre-action discovery.

*473 Wood states he complied with the magistrate judge’s order by filing a proper § 1988 lawsuit, albeit in the Beaumont, rather than the Lufkin, Division. The clerk’s office confirms Wood’s § 1988 action is pending in the Beaumont Division. Because our court cannot grant further relief on that issue, that portion of this appeal is dismissed as moot. See Bailey v. Southerland, 821 F.2d 277, 278-79 (5th Cir.1987).

The denial of the Rule 27 motion is reviewed for abuse of discretion. Hibernia Nat. Bank v. Robinson, 67 Fed.Appx. 241, - (5th Cir.2003). Wood did not show he required pre-action discovery to prevent the failure or delay of justice; specifically, he failed to show the pre-action discovery he sought would otherwise be lost. See Fed.R.Civ.P. 27(a)(3). Wood’s contentions appear predicated on his believing he has an absolute right to such discovery; that belief is incorrect. See In re Eisenberg, 654 F.2d 1107, 1112 (5th Cir.1981). There was nothing to prevent Wood from filing a complaint and seeking discovery after the court completed its judicial screening of the case. See id. Because Wood has not shown the district court’s denial of his Rule 27 motion was an abuse of discretion, that portion of the district court’s judgment is affirmed. See In re Price, 723 F.2d 1193, 1194 (5th Cir.1984).

DISMISSED IN PART; AFFIRMED IN PART.

*

Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.

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