Walker v. Smith et al

Filing 296

ORDER: IT IS ORDERED that Plaintiff Paul Walker's Request for Transcripts (Doc. 290 ) is DENIED without prejudice [see attached Order for details]. Signed by Senior Judge James A Teilborg on 6/12/18. (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 Edward Walker,
Plaintiff,

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ORDER

v.

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No. CV-14-01893-PHX-JAT

Dennis R Smith, et al.,

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Defendants.

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Pending before the Court is Plaintiff’s Request for Transcripts (Doc. 290) in the

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above-captioned matter, which is now on appeal before the U.S. Court of Appeals for the

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Ninth Circuit (“Ninth Circuit”).

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I.

BACKGROUND

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Plaintiff Paul Walker (“Plaintiff”) is a prisoner who proceeded pro se and in forma

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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. (See Doc. 2 at 7; Doc.

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200 at 1). A jury rendered a verdict in favor of the Defense on August 30, 2017 after a

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trial in this matter. (Doc. 267). Plaintiff filed his Notice of Appeal (Doc. 281) on

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September 13, 2017. On October 23, 2017, Plaintiff filed the pending Request for

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Transcripts (Doc. 290) of the trial proceedings, which the Court construes as a request for

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transcripts at the government’s expense.

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II.

LEGAL STANDARD

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A litigant proceeding in forma pauperis may petition the Court to have transcripts

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produced at the government’s expense. 28 U.S.C. § 753(f); see also McKinney v.

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Anderson, 924 F.2d 1500, 1511 (9th Cir. 1991), vacated on other grounds sub nom.,

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Helling v. McKinney, 502 U.S. 903 (1991). 28 U.S.C. § 1915(c) grants the Court the

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authority to authorize payment for trial transcripts when necessary. 28 U.S.C. § 753(f),

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however, provides that a court should only order the government to pay for transcripts if

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“the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that

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the transcript is needed to decide the issue presented by the suit or appeal.” Id. A request

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for transcripts at the government’s expense should not be granted unless “the appeal is

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not frivolous and presents a substantial issue.” Henderson v. United States, 734 F.2d 483,

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484 (9th Cir. 1984).

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III.

ANALYSIS

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Here, Plaintiff’s Notice of Appeal (Doc. 281) omits any explanation for the basis

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of his appeal. Plaintiff’s Request for Transcripts (Doc. 290) similarly makes no showing

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as to “why his appeal raises a substantial question and how a transcript of [trial

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proceedings] is necessary.” Ekweani v. Ameriprise Fin., Inc., No. CV-08-01101-PHX-

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FJM, 2010 WL 1541583, at *1 (D. Ariz. Apr. 19, 2010) (internal quotation marks

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omitted). Although Plaintiff provides that the Ninth Circuit requested transcripts of the

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trial proceedings, he may—and indeed did—request them from the Ninth Circuit.

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(Compare Doc. 290 with Ninth Cir. Doc. 14 (No. 17-16857)). The Ninth Circuit denied

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Plaintiff’s motion without prejudice to renew the motion after the appointment of pro

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bono appellate counsel. (Ninth Cir. Doc. 17 (No. 17-16857)). The appeal is currently

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stayed pending further order of the Ninth Circuit. (Id.). Plaintiff may renew his request

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for transcripts with the Ninth Circuit at the appropriate time, should he so wish. However,

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this Court notes that the Ninth Circuit can request any necessary documents directly from

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this Court. See, e.g., Hawkins v. Adams, No. 1:09-CV-0771-LJO-JLT, 2013 WL

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4647910, at *1 (E.D. Cal. Aug. 28, 2013). Accordingly, Plaintiff’s Request for

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Transcripts (Doc. 290) is denied.

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IV.

CONCLUSION

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Based on the foregoing,

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IT IS ORDERED that Plaintiff Paul Walker’s Request for Transcripts (Doc. 290)

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is DENIED without prejudice.1
Dated this 12th day of June, 2018.

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Nothing in this Court’s Order restricts Plaintiff from renewing his request before
the Ninth Circuit at the appropriate time.
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