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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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