Fierro v. Wilmot

Filing 60

ORDER that Plaintiff's Request for Documents at Government's Expense (Doc. 59 ) is DENIED without prejudice. See the attached order for additional information. Signed by Senior Judge James A. Teilborg on 7/19/2021. (RMW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Jose Luis Tapia Fierro,

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Plaintiff,

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ORDER

v.

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No. CV-19-03096-PHX-JAT

Leon N Wilmot,

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Defendant.

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Pending before the Court is Plaintiff’s Request for Documents at Government’s

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Expense (Doc. 59). For reasons that follow, the Court will deny the motion without

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prejudice.

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I.

BACKGROUND

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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 42 U.S.C. § 1983 case. (Doc. 9). The case proceeded to a bench

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trial on March 24, 2021, and the Court entered judgment in favor of Defendant. (Docs. 47,

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54, 55). Plaintiff now requests that the filings in this case and a transcript of the bench trial

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be provided to him free of charge pursuant to his in forma pauperis status. (Doc. 59).

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Because certain limitations apply to the provision of transcripts furnished at the

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government’s expense, the Court must determine whether Plaintiff is entitled to the

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transcripts.

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II.

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DISCUSSION
Congress addressed the issue of furnishing transcripts at public expense in 28 U.S.C.

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§ 753(f). The statute provides that “[f]ees for transcripts furnished in other proceedings to

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

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trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a

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substantial question).” 28 U.S.C. § 753(f) (parenthetical in original). A request for a

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transcript at government expense should not be granted unless “the appeal [or suit] presents

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a substantial issue.” See Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984).

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The rule’s purpose is to prevent the waste of taxpayer dollars on transcripts for use in

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baseless appeals. Therefore, the Court must determine whether Plaintiff’s proposed appeal

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has some merit before it directs the government to pay for his transcripts.

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The Plaintiff must articulate some ground for appeal that requires transcripts before

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the Court will subject the government to that expense. When proceeding in forma pauperis,

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transcripts cannot be provided merely to allow Plaintiff to search for grounds for relief. See

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Bonner v. Henderson, 517 F.2d 135, 135 (5th Cir. 1975) (per curiam). Instead, Plaintiff

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has the burden of demonstrating nonfrivolity and substantiality of the claims. See Maloney

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

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Court must examine whether the proposed appeal is not frivolous (but presents a substantial

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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 “if 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). On the other hand, a “substantial” question is defined as “reasonably

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debatable.” Maloney, 396 F.2d at 940 (citing Ortiz v. Greyhound Corp., 192 F. Supp. 903,

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905 (D. Md. 1959)). Regardless, the statute mandates that Plaintiff’s reason for obtaining

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free transcripts be nonfrivolous and also present a substantial question. Therefore, the

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Court must determine whether the Plaintiff stated a nonfrivolous, substantial reason for

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obtaining the transcripts.

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Plaintiff has failed to demonstrate that his proposed appeal is nonfrivolous or

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presents a substantial question. In his motion, Plaintiff failed to state what issues he

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proposes to appeal. Thus, the Court is unable to determine from the face of the motion

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whether his reason for obtaining the transcripts is substantial and nonfrivolous. The Court

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therefore will deny the motion without prejudice to Plaintiff refiling to make the required

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showing that his appeal is nonfrivolous and presents a substantial question.

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The same goes for Plaintiff’s request for essentially every filing in this case. Plaintiff

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fails to explain why the documents he requests are necessary for any grounds for appeal.

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Accordingly, the Court will deny this request for documents as well.

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III.

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CONCLUSION
For the foregoing reasons,
IT IS ORDERED that Plaintiff’s Request for Documents at Government’s Expense

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(Doc. 59) is DENIED without prejudice.

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Dated this 19th day of July, 2021.

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