Simon v. Phoenix, City of et al

Filing 146

ORDER - granting in part and denying in part 144 Motion for the Clerk of the Court to Forward the Entire Docket, all Original papers and the transcripts and Judgment to the Court of Appeals. This motion is denied without prejudice to re-filing as set forth in the attached Order. Signed by Senior Judge James A Teilborg on 3/4/2013. (Copy mailed to pro se plaintiff J. Simon on 3/5/2013). (TLB)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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John Steven Simon,

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Plaintiff,

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vs.

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City of Phoenix; et al.,
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Defendants.
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No. CV 09-701-PHX-JAT
ORDER

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Pending before this Court is Plaintiff’s Motion for the Clerk of the Court to Forward

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the Entire Docket, all Original Papers, and the Transcripts and Judgment to the Court of

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Appeals. To the extent Plaintiff is seeking to have the Clerk of the Court compile his

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excerpts of record for him for his appeal, that request is denied.

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To the extent Plaintiff is seeking a copy of certain transcript(s) for free, as a result of

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his in forma pauperis status, that request is denied without prejudice. Specifically, Plaintiff

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may file a new motion, within 14 days, if he can meet the test of 28 U.S.C. § 753(f). The

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statute provides that “[f]ees for transcripts furnished in other proceedings to persons

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permitted to appeal in forma pauperis shall also be paid by the United States if the trial judge

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or a circuit judge certifies that the appeal is not frivolous (but presents a substantial question).

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28 U.S.C. § 753(f) (1996) (parenthetical in original). More particularly, when proceeding

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in forma pauperis, transcripts cannot be provided merely to allow a plaintiff to search for

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grounds for relief. Bonner v. Henderson, 517 F.2d 135, 135 (5th Cir. 1975) (per curiam).

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Instead, Plaintiff has the burden of demonstrating nonfrivolity and substantiality of the

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claims. See Maloney v. E.I. Du Pont de Nemours & Co., 396 F.2d 939, 940 (D.C. Cir. 1967).

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Accordingly,

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IT IS ORDERED that Plaintiff’s Motion for the Clerk of the Court to Forward the

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Entire Docket, all Original Papers, and the Transcripts and Judgment to the Court of Appeals

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(Doc. 144) is denied in part with prejudice and denied in part without prejudice to re-filing,

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as specified above.

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DATED this 4th day of March, 2013.

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