IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60198
Summary Calendar
JOHN BENTON,
Plaintiff-Appellant,
versus
CAROLE TAYLOR, Individually and in official capacity as Marshall
County Court Reporter; LUCY CARPENTER, Individually and in
official capacity as Marshall County Circuit Court Clerk,
Defendants-Appellees.
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Appeal from the United States District Court
for the Northern District of Mississippi
USDC No. 3:99-CV-176-P-A
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June 23, 2000
Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.
PER CURIAM:1
John Benton, Mississippi prisoner #R6103, appeals the
dismissal of his 42 U.S.C. § 1983 petition for failure to state a
claim. Benton argues that he did state a claim because his
complaint alleged that his Due Process rights were violated by the
lengthy delay in the production of his trial transcript and record
when he was unable to pursue his appeal.
A claim against a court clerk for not providing court records
on appeal is properly brought in a § 1983 civil rights suit because
1
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that this opinion should not be published and is not precedent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.
the prisoner is not challenging his conviction and he is not
seeking his release from custody. Rheuark v. Shaw, 547 F.2d 1257,
1259 (5th Cir. 1977). “[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 completion of an appellate record.” Rheuark v. Shaw,
628 F.2d 297, 302 (5th Cir. 1980). The district court erred in
finding that a delay in the production of a transcript and trial
record could not state a cognizable § 1983 claim, and it failed to
analyze Benton’s claim using the four factors enunciated in
Rheuark. See Rheuark, 628 F.2d at 303 n.8. Accordingly, the
judgment of the district court is vacated and the cause remanded
for further proceedings.
VACATED and REMANDED.
2