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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1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Jose Luis Tapia Fierro, 10 Plaintiff, 11 ORDER v. 12 No. CV-19-03096-PHX-JAT Leon N Wilmot, 13 Defendant. 14 15 Pending before the Court is Plaintiff’s Request for Documents at Government’s 16 Expense (Doc. 59). For reasons that follow, the Court will deny the motion without 17 prejudice. 18 I. BACKGROUND 19 Pursuant to 28 U.S.C. § 1915(a), the Court allowed the pro se Plaintiff to proceed 20 in forma pauperis in this 42 U.S.C. § 1983 case. (Doc. 9). The case proceeded to a bench 21 trial on March 24, 2021, and the Court entered judgment in favor of Defendant. (Docs. 47, 22 54, 55). Plaintiff now requests that the filings in this case and a transcript of the bench trial 23 be provided to him free of charge pursuant to his in forma pauperis status. (Doc. 59). 24 Because certain limitations apply to the provision of transcripts furnished at the 25 government’s expense, the Court must determine whether Plaintiff is entitled to the 26 transcripts. 27 II. 28 DISCUSSION Congress addressed the issue of furnishing transcripts at public expense in 28 U.S.C. 1 § 753(f). The statute provides that “[f]ees for transcripts furnished in other proceedings to 2 persons permitted to appeal in forma pauperis shall also be paid by the United States if the 3 trial judge or a circuit judge certifies that the appeal is not frivolous (but presents a 4 substantial question).” 28 U.S.C. § 753(f) (parenthetical in original). A request for a 5 transcript at government expense should not be granted unless “the appeal [or suit] presents 6 a substantial issue.” See Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984). 7 The rule’s purpose is to prevent the waste of taxpayer dollars on transcripts for use in 8 baseless appeals. Therefore, the Court must determine whether Plaintiff’s proposed appeal 9 has some merit before it directs the government to pay for his transcripts. 10 The Plaintiff must articulate some ground for appeal that requires transcripts before 11 the Court will subject the government to that expense. When proceeding in forma pauperis, 12 transcripts cannot be provided merely to allow Plaintiff to search for grounds for relief. See 13 Bonner v. Henderson, 517 F.2d 135, 135 (5th Cir. 1975) (per curiam). Instead, Plaintiff 14 has the burden of demonstrating nonfrivolity and substantiality of the claims. See Maloney 15 v. E.I. Du Pont de Nemours & Co., 396 F.2d 939, 940 (D.C. Cir. 1967). Therefore, the 16 Court must examine whether the proposed appeal is not frivolous (but presents a substantial 17 question). 18 The language in § 753(f) suggests that the inquiries of frivolity and substantiality 19 are not identical. Corgain v. Miller states that a claim is frivolous “if the petitioner can 20 make no rational argument in law or facts to support his claim for relief.” 708 F.2d 1241, 21 1247 (7th Cir. 1983). On the other hand, a “substantial” question is defined as “reasonably 22 debatable.” Maloney, 396 F.2d at 940 (citing Ortiz v. Greyhound Corp., 192 F. Supp. 903, 23 905 (D. Md. 1959)). Regardless, the statute mandates that Plaintiff’s reason for obtaining 24 free transcripts be nonfrivolous and also present a substantial question. Therefore, the 25 Court must determine whether the Plaintiff stated a nonfrivolous, substantial reason for 26 obtaining the transcripts. 27 Plaintiff has failed to demonstrate that his proposed appeal is nonfrivolous or 28 presents a substantial question. In his motion, Plaintiff failed to state what issues he -2- 1 proposes to appeal. Thus, the Court is unable to determine from the face of the motion 2 whether his reason for obtaining the transcripts is substantial and nonfrivolous. The Court 3 therefore will deny the motion without prejudice to Plaintiff refiling to make the required 4 showing that his appeal is nonfrivolous and presents a substantial question. 5 The same goes for Plaintiff’s request for essentially every filing in this case. Plaintiff 6 fails to explain why the documents he requests are necessary for any grounds for appeal. 7 Accordingly, the Court will deny this request for documents as well. 8 III. 9 10 CONCLUSION For the foregoing reasons, IT IS ORDERED that Plaintiff’s Request for Documents at Government’s Expense 11 (Doc. 59) is DENIED without prejudice. 12 Dated this 19th day of July, 2021. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -3-

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