United States District Court, M.D. Alabama, Northern Division
RECOMMENDATION OF MAGISTRATE JUDGE
WALLACE CAPEL, JR. CHIEF UNITED STATES MAGISTRATE JUDGE
has filed a Petition for Rule 27 Discovery (Doc. 1). This
case was referred to the undersigned Magistrate Judge
pursuant to 28 U.S.C. 636 for consideration and disposition
or recommendation on all matters as may be appropriate.
Plaintiff requested and was granted leave to proceed in
forma pauperis (Docs. 2 and 5), which obligates the
court to undertake review of Plaintiff's Complaint
pursuant to the provisions of 28 U.S.C. § 1915(e). Upon
review of the petition, the undersigned RECOMMENDS the
27(a)(1) of the Federal Rules of Civil Procedure provides
that “A person who desires to perpetuate testimony
regarding any matter that may be cognizable in any court of
the United States may file a verified petition.” David
Lucas has presented to the Court a verified petition for
relief pursuant to Rule 27. Lucas alleges in his Petition
that he expects to be a party to several civil and criminal
actions against Terry Raybon, a warden with the Alabama
Department of Corrections. Doc. 1 at 1. According to Lucas,
Rayborn has used inmate records to create false Facebook
pages to “attract women that his face could not
attract.” Id. at 1-2. Lucas states that he
cannot sue Raybon without obtaining certain information from
Facebook by court order. Id. He believes the
information he seeks will lead directly to Raybon's I.P.
address at Holman prison and Raybon's home. Id.
at 3. Lucas believes the I.P. address used to create the
false Facebook pages was used every time that Raybon logged
in to one of the fake Facebook pages. Id. He also
alleges that a second “tech firm” assigned the
I.P. address to Raybon, and that company will be revealed
from Facebook's documents. Id. at 4.
agree that allowing Rule 27 to be used for discovery
“before an action is commenced to enable a person to
fish for some ground for bringing suit would be ‘an
abuse of the rule.'” Gilford v. Bank of New
York Mellon Corp. as Tr. for Certificateholders of CWALT,
Inc., No. 12CV74, 2012 WL 13130213, at *2 (N.D.Ga. June
18, 2012), report and recommendation adopted, No.
12CV74, 2012 WL 13130212 (N.D.Ga. Sept. 10, 2012) (quoting
In re Landry-Bell, 232 F.R.D. 266, 267 (W.D. La.
2005) (quoting 8A Charles Alan Wright et al. Federal
Practice and Procedure, § 2071 at 651-52)); see
also In re Ford, 170 F.R.D. 504, 508 (M.D. Ala. 1997)
(finding that Rule 27 is available in special circumstances
to preserve testimony that could otherwise be lost but that
it is not a substitution for discovery); Petition of
State of N.C. , 68 F.R.D. 410, 412 (S.D.N.Y. 1975)
(holding that Rule 27 “cannot be used for the purpose
of ascertaining facts to be used in drafting a
complaint”); In re Gurnsey, 223 F.Supp. 359,
360 (D.D.C. 1963) (finding that Rule 27 may be used when
evidence might become unavailable but is not a method to
determine if a cause of action exists); cf. Goldin v.
Boce Grp., L.C., 773 F.Supp.2d 1376, 1388 (S.D. Fla.
2011) (holding that discovery is authorized for parties to
develop facts in a lawsuit but not in order to permit a
plaintiff to find out if he has a claim).
asserts a desire to obtain information that he needs in order
to file a lawsuit against Raybon but that he cannot obtain
without a court order. However, he has presented no evidence
that the information he seeks is in danger of being lost or
destroyed or that it otherwise needs to be preserved. Thus,
it is clear that he does not merely wish to preserve
testimony or evidence for later use in a lawsuit but,
instead, wishes to discover facts in order to determine if he
may bring suit. Rule 27 may not be used for this purpose.
reasons set forth above, it is the RECOMMENDATION of the
undersigned Magistrate Judge that the Rule 27 Petition for
Discovery be DENIED and that the action be DISMISSED.
that the Plaintiff is DIRECTED to file any objections to the
said Recommendation on or before August 14,
2019. Any objections filed must specifically
identify the findings in the Magistrate Judge's
Recommendation to which the party is objecting. Frivolous,
conclusive, or general objections will not be considered by
the District Court. The Plaintiff is advised that this
Recommendation is not a final order of the court and,
therefore, it is not appealable.
to file a written objection to the proposed findings and
recommendations in the Magistrate Judge's report shall
bar a party from a de novo determination by the
District Court of factual findings and legal issues covered
in the report and shall “waive the right to challenge
on appeal the District Court's order based on
unobjected-to factual and legal conclusions” except
upon grounds of plain error if necessary in the interests of
justice. 11th Cir. R. 3-1; see Resolution Trust Co. v.
Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir.
1993) (“When the magistrate provides such notice and a
party still fails to object to the findings of fact and those
findings are ...