           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                   Fifth Circuit

                                                                            FILED
                                                                           May 20, 2008
                                     No. 07-60318
                                   Summary Calendar                   Charles R. Fulbruge III
                                                                              Clerk

JAMES WESLEY SCOTT,

                                                  Plaintiff-Appellant,

v.

SANDRA HENDRIX FORTENBERRY; JOHN DOE,

                                                  Defendants-Appellees.


                   Appeal from the United States District Court
                     for the Southern District of Mississippi
                             USDC No. 2:06-CV-190


Before SMITH, BARKSDALE, and ELROD, Circuit Judges.
PER CURIAM:*
       James Wesley Scott, Mississippi prisoner # 20590, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 suit against court reporter Sandra
Hendrix Fortenberry and her insurance carrier. Because the district court erred
in holding that Scott’s claims are barred by the Rooker/Feldman doctrine and
Heck v. Humphrey, 512 U.S. 477 (1994), we reverse and remand.
       A Mississippi jury convicted Scott of a crime in August 2001. After filing
a notice of appeal, Scott requested that Fortenberry, the trial court reporter,

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 07-60318

prepare a transcript of the proceedings. After numerous extensions of her
deadline to prepare the transcript, Fortenberry was sanctioned by the
Mississippi Supreme Court in January 2004 for failing to perform her duties.
A replacement court reporter finally completed the transcript in July 2004,
almost three years after Scott’s trial.1
       Scott filed a civil suit against Fortenberry and her insurance carrier,
alleging that the delay of his criminal appeal caused by Fortenberry’s failure to
prepare the trial transcript violated his due process rights. The district court
dismissed Scott’s claims for lack of jurisdiction with prejudice sua sponte,
holding that they were barred by both the Rooker/Feldman doctrine and Heck
v. Humphrey, 512 U.S. 477 (1994). As Scott argues on appeal, the district court’s
ruling was incorrect. Scott’s complaint seeks damages resulting from a court
reporter’s failure to prepare a trial transcript; it does not seek review of his
criminal conviction or any other state court order.                       Accordingly, the
Rooker/Feldman doctrine, which provides that “federal district courts, as courts
of original jurisdiction, lack appellate jurisdiction to review, modify, or nullify
final orders of state courts,” is inapplicable. Weekly v. Morris, 204 F.3d 613, 615
(5th Cir. 2000).       Likewise, Scott’s complaint does not implicate Heck v.
Humphrey, as a judgment in his favor would not “necessarily imply the
invalidity of his conviction or sentence.” 512 U.S. at 487. We therefore reverse
the district court’s dismissal of Scott’s complaint on these grounds.
       Our standard for evaluating Scott’s claims is properly set forth in a case
he cites on appeal: “[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). To determine whether such


       1
         Because the district court’s sua sponte dismissal was based on the lack of jurisdiction
on the face of the complaint, we accept Scott’s factual allegations as true for purposes of our
analysis. See Williamson v. Tucker, 645 F.2d 404, 412 (5th Cir. 1981).

                                               2
                                  No. 07-60318

a delay violates due process, the court must examine four factors: (1) length of
delay; (2) the reason for the delay; (3) the defendant’s assertion of his right; and
(4) the prejudice to the defendant. Id. at 303 n.8. There are three main types
of potential prejudice that may result from appellate delay: (1) extended
oppressive incarceration pending appeal; (2) the anxiety and concern of the
convicted party awaiting the outcome of the appeal; and (3) impairment of the
convicted party’s grounds for appeal or the viability of his defenses in the event
of retrial. Id. We express no view on how the district court should evaluate and
apply this standard on remand.
      REVERSED AND REMANDED.




                                         3
