Fifth Circuit Court Cases - Case Law and Opinions from the 5th Circuit Federal Court - Court of Appeals

	ROMINGER LEGAL
		Fifth Circuit Court of Appeals Opinions - 5th Circuit
					Need Legal Help?
					Need Legal Help?
LEGAL RESEARCH CENTER
LEGAL RESEARCH CENTER			LEGAL HEADLINES - CASE LAW - LEGAL FORMS	NOT FINDING WHAT YOU NEED? -CLICK HERE

This opinion or court case is from the Fifth Circuit Court or Appeals. Search our site for more cases - CLICK HERE

LEGAL RESEARCH

COURT REPORTERS

PRIVATE INVESTIGATORS

PROCESS SERVERS

DOCUMENT RETRIEVERS

EXPERT WITNESSES

Find a Private Investigator

Find an Expert Witness

Find a Process Server

Case Law - save on Lexis / WestLaw.

Legal News - Legal Headlines

UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-30123
JACOB AMAR,
Plaintiff - Appellee,
VERSUS
JOHN P. WHITLEY; DAVID ROSS;
JOSEPH R. HOOKER; UNKNOWN SLAYTER, Sergeant,
Defendants - Appellants.
Appeal from the United States District Court
For the Middle District of Louisiana
November 8, 1996
Before REYNALDO G. GARZA, JONES, and DeMOSS, Circuit Judges.
DeMOSS, Circuit Judge:
This is an appeal arising from a final judgment in a prisoner
civil rights suit brought by Jacob Amar under 42 U.S.C. § 1983.
After a jury found in favor of the defendants, the magistrate judge
awarded costs against Amar. Defendants, John P. Whitley, the
warden of the Louisiana Department of Public Safety and
Corrections, Lieutenant David Ross, Sergeants Joseph R. Hooker and
Richard Slayter, Corrections Officers at the prison, moved for a
writ of sequestration to prevent Amar from depleting his prison
"bank" account before the defendants could collect on the court's

award of costs in this case. The magistrate judge denied such
motion and Defendants appealed from that denial. Because the
defendants were thereafter successful in obtaining payment of the
$55.70 in costs awarded against Amar, no case or controversy exists
and, therefore, we DISMISS this appeal as moot.
I. FACTS AND PROCEDURAL HISTORY
Jacob Amar brought this 42 U.S.C. § 1983 suit against the
prison warden and three corrections officers contending that the
officers violated his Eighth Amendment rights by using excessive
force and acting with deliberate indifference to his medical needs.
The parties consented to a jury trial before a magistrate judge.
The magistrate judge granted summary judgment as to the claims
against the warden, John Whitley.
The case as to the remaining parties then proceeded to trial.
The jury returned a verdict in favor of the defendants and the
court entered judgment accordingly. Amar did not appeal this take
nothing judgment. The defendants then filed an unopposed
application for costs. The magistrate judge granted the motion and
assessed $55.70 in costs against Amar. Immediately thereafter, the
defendants filed a motion for writ of sequestration of the funds in
Amar's prison "bank" account in order to prevent him from depleting
the $90.03 currently in his account before the defendants could
execute on their award of costs. The court denied the motion for
writ of sequestration and this appeal was filed. Thereafter, the
defendants successfully recovered their $55.70 in costs by writ of
2

garnishment. Nevertheless, defendants continued to pursue this
appeal contending that the case is not moot because this scenario
is "capable of repetition yet evading review."
II. DISCUSSION
Defendants argue that, because FED. R. CIV. P. 62(a)1 proscribes
a 10-day stay for the issuance of a writ of execution filed under
Rule 69(a),2 prisoners who have costs assessed against them for
filing lawsuits will have ample opportunity to deplete their prison
"bank" accounts. Defendants contend that there is a reasonable
expectation that in the future, another inmate will deplete his
account during the 10-day stay on the execution of an award of
costs and, thereby, prevent other defendants from recovering their
costs. The defendants express purpose of this appeal is to win
approval for the use of Rule 643 which would allow the court to use
1 "Except as stated herein, no execution shall issue upon a
judgment nor shall proceedings be taken for its enforcement until
the expiration of 10 days after its entry." FED. R. CIV. P. 62(a).
2 "Process to enforce a judgment for the payment of money
shall be a writ of execution, unless the court provides otherwise."
FED. R. CIV. P. 69(a).
3 Rule 64 provides, in pertinent part:
At the commencement of and during the course of an action, all
remedies providing for seizure of person or property for the
purpose of securing satisfaction of the judgment ultimately to
be entered in the action are available under the circumstances
and in the manner provided by the law of the state in which
the district court is held, existing at the time the remedy is
sought . . . . The remedies thus available include . . .
sequestration . . . .
FED. R. CIV. P. 64.
3

Louisiana sequestration laws to insure that the Louisiana Attorney
General's Office would receive awards of costs against inmates
before inmates could deplete their accounts.
We decline the invitation to address this appeal. This case
presents a textbook example of mootness and, as such, this Court
lacks the jurisdiction and the judicial resources to issue an
advisory opinion. The United States Constitution, Article III § 2,
cl. 1, requires the existence of a case or controversy to support
our jurisdiction. There must be an ongoing adversarial
relationship between the parties regarding a question which
judicial processes must be capable of deciding. See Matter of
Talbott, 924 F.2d 85, 87 (5th Cir. 1991). In the case sub judice
defendants have received their $55.70 award of costs from Amar.
Amar filed no appeal and did not file a brief or otherwise
challenge the appeal filed by the defendants.
Defendants argue that the "capable of repetition yet evading
review" exception to the mootness doctrine applies. See Mesquite
v. Aladdin's Castle, Inc., 455 U.S. 283 (1982). The "evading
review" prong of this exception requires that the type of alleged
harm is of a limited duration so that the case would likely be moot
before the litigation is completed. See Vieux Carre Prop. Owners,
Residents and Assoc., Inc. v. Brown, 948 F.2d 1436, 1447 (5th Cir.
1991). Assuming that the prisoners' use of this 10-day stay to
deplete prison "bank" accounts becomes rampant, we are confident
that the Louisiana Attorney General's Office will again appeal any
district court order refusing to grant a Motion for Writ of
4

Sequestration at that time. In that case, we will be left with a
case in controversy that may warrant a decision. This is not that
case.
III. CONCLUSION
For the foregoing reasons, we hold that this appeal is moot.
Finding no case or controversy, we DISMISS this appeal.
5