Robledo #250767 v. Taylor et al

Filing 223

ORDER: IT IS ORDERED Plaintiff's motion to expedite (Doc. 221 ) is granted. IT IS FURTHER ORDERED that Plaintiff's request for transcripts at the government's expense (Doc. 219 ) is denied, without prejudice [see attached Order for details]. Signed by Senior Judge James A Teilborg on 6/23/17.(MAW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Paul Anthony Robledo,

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Plaintiff,

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ORDER

v.

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No. CV-14-01864-PHX-JAT

Nicole Taylor, et al.,

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Defendants.

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Plaintiff moves for a free copy of the transcript from the show cause hearing on
November 14, 2016. (Doc. 219).

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Pursuant to 28 U.S.C. ' 1915(a), the Court allowed the pro se Plaintiff to proceed

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in forma pauperis in this case. (Doc. 7). Plaintiff requests that a transcript of the

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November 14, 2016 hearing be provided to him free of charge because of his in forma

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pauperis status. Plaintiff seeks the transcript for purposes of his appeal. Because certain

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limitations apply to the provision of transcripts at the government=s expense, the Court

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must determine whether Plaintiff is entitled to the transcript.

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Congress addressed the issue of furnishing transcripts at public expense in 28

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U.S.C. ' 753(f). The statute provides that A[f]ees for transcripts furnished in other

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proceedings to persons permitted to appeal in forma pauperis shall also be paid by the

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United States if the trial judge or a circuit judge certifies that the appeal is not frivolous

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(but presents a substantial question).

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28 U.S.C. ' 753(f) (1996) (parenthetical in

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original).1 The statute’s purpose is to prevent the waste of taxpayer dollars on transcripts

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for use in baseless appeals. Therefore, the Court must determine whether Plaintiff=s

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proposed appeal has some merit before it directs the government to pay for his

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transcripts.

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Accordingly, Plaintiff must articulate some ground for appeal that requires

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transcripts before the Court will subject the government to that expense.

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proceeding in forma pauperis, transcripts cannot be provided merely to allow [Plaintiff]

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

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(per curiam).

When

Instead, Plaintiff has the burden of demonstrating nonfrivolity and

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substantiality of the claims. See Maloney v. E.I. Du Pont de Nemours & Co., 396 F.2d

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939, 940 (D.C. Cir. 1967). Therefore, the Court must examine whether the proposed

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appeal is not frivolous (but presents a substantial question).

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The language in ' 753(f) suggests that the inquiries of frivolity and substantiality

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are not identical. Corgain v. Miller states that a claim is frivolous Aif the petitioner can

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make no rational argument in law or facts to support his claim for relief.@ 708 F.2d 1241,

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1247 (7th Cir. 1983).

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Areasonably debatable.@ Maloney, 396 F.2d at 940 (citing Ortiz v. Greyhound Corp., 192

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F.Supp. 903, 905 (D. Md.1959)). Regardless, the statute mandates that Plaintiff=s reason

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for obtaining free transcripts must be nonfrivolous and also present a substantial

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question.

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nonfrivolous, substantial reason for obtaining the transcripts.

On the other hand, a Asubstantial@ question is defined as

Therefore, the Court must determine whether the Plaintiff stated a

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In his motion, Plaintiff states, “[T]ranscripts of the 11-14-2016 hearing are needed

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so the Plaintiff can refer to portions in his brief(s) to the U.S. Court of Appeals for the

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Ninth Circuit.” (Doc. 219 at 1). This is Plaintiff’s sole justification for transcripts.

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Defendants oppose the request for transcripts arguing that the November 14, 2016

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Plaintiff=s motion falls within the meaning of Aother proceedings@ that are
contemplated by '753(f), which describes the procedure for obtaining transcripts at the
government=s expense in the context of criminal or habeas corpus proceedings. See 28
U.S.C. 753(f).
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hearing did not bear on the Court’s summary judgment ruling; thus the hearing will not

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be relevant to the appeal. (Doc. 222). On this record, the Court cannot determine if

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Defendant is correct because the Court does not know for exactly what purpose on appeal

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Plaintiff seeks the transcript. Therefore, the Court cannot determine whether Plaintiff’s

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purpose is nonfrivolous and substantial. Accordingly, on this record, the Court cannot

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grant Plaintiff’s request.

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Thus,

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IT IS ORDERED Plaintiff’s motion to expedite (Doc. 221) is granted.

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IT IS FURTHER ORDERED that Plaintiff’s request for transcripts at the

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government’s expense (Doc. 219) is denied, without prejudice.
Dated this 23rd day of June, 2017.

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