Opinion
2012 CA 1625
04-26-2013
BARON THOMPSON v. HILLAR MOORE III, DISTRICT ATTORNEY
Baron Thompson Louisiana State Penitentiary Angola, Louisiana Plaintiff/Appellant In Proper Person Hillar C. Moore, III District Attorney Baton Rouge, Louisiana Defendant/Appellee In Proper Person
NOT DESIGNATED FOR PUBLICATION
On Appeal from the Nineteenth Judicial District Court
In and for the Parish of East Baton Rouge
State of Louisiana
No. 609,721
Honorable Kay Bates, Judge Presiding
Baron Thompson
Louisiana State Penitentiary
Angola, Louisiana
Plaintiff/Appellant
In Proper Person
Hillar C. Moore, III
District Attorney
Baton Rouge, Louisiana
Defendant/Appellee
In Proper Person
BEFORE: WHIPPLE, C.J., McCLENDON, AND HIGGINBOTHAM, JJ.
McCLENDON , J.
Baron Thompson, an inmate in the custody of the Louisiana Department of Public Safety and Corrections, appeals the district court's judgment, dismissing his application for mandamus for the failure to state a cause of action. We affirm.
In February 2011, Mr. Thompson wrote to the district attorney's office for East Baton Rouge Parish, requesting to inspect and copy the public records in its possession pertaining to his conviction and sentence for second degree murder in 2003. On February 25, 2011, the district attorney's office responded, stating that it was no longer in possession of the records, as they were destroyed after three years, and suggesting that Mr. Thompson request his criminal record from the Clerk of Court. After writing to the Clerk of Court, Mr. Thompson was informed that the clerk of court's office had no access to district attorney files and that he would have to ask the district attorney's office for its records. Mr. Thompson was also informed he could get copies of his file maintained by the clerk of court's office in criminal records at a cost of $1.00 per copy and that the cost of copying his file was $175.00.
Pursuant to the Public Records Act, LSA-R.S. 44:1 et seq., after a person "has been denied the right to inspect or copy a record" he "may institute proceedings for the issuance of a writ of mandamus." LSA-R.S. 44:35A; see also LSA-R.S. 44:31.1 (An inmate in custody after sentencing following a felony conviction, who has exhausted his appellate remedies, is a "person" permitted access to a public record only when his request is limited to the grounds upon which the inmate could file for post conviction relief under LSA-C.Cr.P. art. 930.3.).
Louisiana Revised Statutes 44:36E(1) permits the district attorney to dispose of a file at the conclusion of the three-year retention period. It provides:
The public records of a prosecuting agency, pertaining to a criminal prosecution that results in a conviction, in a manner other than a plea, shall be retained for a period of three years from the date on which a court of appeal affirms the conviction, the Louisiana Supreme Court denies writs, or the Louisiana Supreme Court makes its final ruling on the appeal, whichever occurs last.
On February 29, 2012, Mr. Thompson filed an "Application for Writ of Mandamus Injunctive or Declaratory Relief," naming Hillar Moore, III, in his capacity as District Attorney of East Baton Rouge Parish, as the defendant in the action. In his application, Mr. Thompson requested that the district court "Order" the district attorney's office to furnish to him its entire record regarding his second degree murder conviction at no cost or at a reduced cost.
Thereafter, in a screening report, the Commissioner concluded, assuming that all of the facts alleged in his petition were true, that Mr. Thompson stated no cause of action for any relief from the district attorney or the court. The Commissioner found that the district attorney's office response letter informed Mr. Thompson that the records he sought were disposed of and no longer in existence, as allowed by LSA-R.S. 44:36E(1). Recognizing that ordering the district attorney to provide records it no longer possessed would be a vain and useless act, the Commissioner recommended dismissal without service on the district attorney, on the court's own motion, for failure to state a cause of action. On May 2, 2012, the district court adopted the Commissioner's recommendation and signed a judgment dismissing Mr. Thompson's suit for failing to state a cause of action. Mr. Thompson appealed.
The enforcement provisions of LSA-R.S. 44:35 presuppose the existence of the records in the office of the custodian. Wallace v. Ware, 94-2204 (La.App. 1 Cir. 6/23/95), 657 So.2d 734, 737. Ordering the district attorney to provide records or a cost estimate for records that he no longer possesses would be a vain and useless act. Chapman v. District Attorney, 05-0577 (La.App. 1 Cir. 3/29/06), 934 So.2d 128, 130; Wallace, 657 So.2d at 737. Accordingly, we are unable to find error in the district court's dismissal of Mr. Thompson's application for a writ of mandamus.
For the above-stated reasons, the district court judgment is affirmed by memorandum opinion in accordance with Uniform Rules-Courts of Appeal, Rule 2-16.1B. All costs of this appeal are assessed to the plaintiff/appellant, Baron Thompson.
AFFIRMED.