In Re: Caraway , 303 F. App'x 220 ( 2008 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 17, 2008
No. 08-10354
Summary Calendar Charles R. Fulbruge III
Clerk
IN RE: RANDAL FRANKLIN CARAWAY
Petitioner-Appellant
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:08-MC-3
Before JOLLY, BENAVIDES, and HAYNES, Circuit Judges.
PER CURIAM:*
Randal Franklin Caraway, Texas prisoner # 756105, appeals the district
court’s denial of his motion to perpetuate testimony pursuant to FED. R. CIV. P.
27. He argues that the district court did not provide sufficient facts and reasons
to allow this court to conduct meaningful review. He argues that he was not
seeking discovery; rather he was seeking to perpetuate and obtain “known
testimony.” Caraway argues that he has met all the requirements under Rule
27 for perpetuating testimony and that he cannot file his complaint at this time
because he has not exhausted his administrative remedies.
Caraway has not shown that perpetuation of the testimony of the
identified witnesses in his case is necessary to prevent testimony from being lost
or to prevent a failure or delay of justice. See FED. R. CIV. P. 27(a)(3); Hibernia
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
No. 08-10354
Nat’l Bank v. Robinson, 67 F. App’x 241 (5th Cir. 2003); Ash v. Cort, 512 F.2d
909, 911 (3d Cir. 1975). He has not shown that exhaustion of his administrative
remedies will take an unusually long time or that there is a reasonable
likelihood that these witnesses may become unavailable before he exhausts his
administrative remedies. After exhausting his administrative remedies,
Caraway may file a complaint and seek discovery after the court completes its
judicial screening of the case. Therefore, Caraway has not shown that the
district court abused its discretion in denying his Rule 27 motion to perpetuate
testimony. See Shore v. Acands, 644 F.2d 386, 388 (5th Cir. 1981).
AFFIRMED.
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