                IN THE UNITED STATES COURT OF APPEALS
                        FOR THE FIFTH CIRCUIT



                             No. 00-60198
                           Summary Calendar



                             JOHN BENTON,

                                                 Plaintiff-Appellant,

                                versus

CAROLE TAYLOR, Individually and in official capacity as Marshall
   County Court Reporter; LUCY CARPENTER, Individually and in
   official capacity as Marshall County Circuit Court Clerk,

                                                Defendants-Appellees.

                         --------------------
             Appeal from the United States District Court
               for the Northern District of Mississippi
                       USDC No. 3:99-CV-176-P-A
                         --------------------
                             June 23, 2000

Before DAVIS, DUHÉ, and DeMOSS, Circuit Judges.

PER CURIAM:1

     John    Benton,   Mississippi   prisoner   #R6103,   appeals   the

dismissal of his 42 U.S.C. § 1983 petition for failure to state a

claim.      Benton argues that he did state a claim because his

complaint alleged that his Due Process rights were violated by the

lengthy delay in the production of his trial transcript and record

when he was unable to pursue his appeal.

     A claim against a court clerk for not providing court records

on appeal is properly brought in a § 1983 civil rights suit because

     1
        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that this opinion should not be published and is not precedent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.
the prisoner is not challenging his conviction and he is not

seeking his release from custody.         Rheuark v. Shaw, 547 F.2d 1257,

1259 (5th Cir. 1977).         “[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).          The district court erred in

finding that a delay in the production of a transcript and trial

record could not state a cognizable § 1983 claim, and it failed to

analyze    Benton’s   claim   using   the   four   factors   enunciated   in

Rheuark.    See Rheuark, 628 F.2d at 303 n.8.           Accordingly, the

judgment of the district court is vacated and the cause remanded

for further proceedings.

     VACATED and REMANDED.




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