Cleveland v. Cochise, County of

Filing 41

ORDER denying 38 Petitioner's Request for Transcript. Signed by Magistrate Judge Bernardo P Velasco on 11/7/2016.(BAR)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Walter L Cleveland, Jr.,
Plaintiff,

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County of Cochise, et al.,

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ORDER

v.

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No. CV-15-00400-TUC-BPV

Defendant.

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On September 3, 2015, Plaintiff Walter Cleveland, who is proceeding pro se and

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in forma pauperis, filed this action alleging civil rights violations and state tort claims.

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Following a bench trial, judgment was entered in favor of Defendants on all but one

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claim (Docs. 32, 33), and Plaintiff has filed a Notice of Appeal (Doc. 39; see also Doc.

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40). Pending before the Court is Plaintiff’s request for a copy of the trial transcript.1

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(Doc. 38).

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A litigant who has been granted in forma pauperis status may move to have

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transcripts produced at government expense. See 28 U.S.C. § 753(f); McKinney v.

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Anderson, 924 F.2d 1500, 1511-12 (9th Cir. 1991), vacated and remanded on other

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Plaintiff does not specifically identify the transcript requested. Plaintiff’s Notice
of Appeal states that he appeals “(from the final judgment) (from an order (describing it))
entered in this action on the 12th day of September, 2016.” (Doc. 39). Based upon
Plaintiff’s Notice of Appeal, the court construes the instant motion as requesting a
transcript of the trial resulting in the Court’s September 12, 2016 Findings of Fact and
Conclusions of Law, and Judgment.

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grounds sub nom., Helling v. McKinney, 509 U.S. 25, 113 (1991), reinstated, 959 F.2d

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853 (9th Cir. 1992); see also 28 U.S.C. § 1915(c).

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“Production of the transcript at government expense for an appellant in forma

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pauperis in a civil case is proper under 28 U.S.C. § 753 if a trial judge certifies that the

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appeal is not frivolous and presents a substantial question.” McKinney, 924 F.2d at 1511

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(citing 28 U.S.C. § 753(f)); see also Henderson v. United States, 734 F.2d 483, 484 (9th

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Cir. 1984) (the court cannot enter an order directing production of a transcript at

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government expense under §753(f) unless the appeal presents a “substantial issue”).

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Here, neither Plaintiff’s Notice of Appeal nor his Request for Transcript provide any

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description, explanation or other discussion of the issues Plaintiff raises on appeal.

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Because the Court is unable to determine the basis on which Plaintiff seeks to overturn

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the judgment, the Court is unable to certify that the appeal is not frivolous and presents a

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substantial question. See McKinney, 924 F.2d at 1512 (affirming district court’s denial of

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motion for transcript at government expense where the movant “merely stated

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conclusorily in his motion that the trial court erred in granting defendants’ motion for a

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directed verdict but failed to point to specific errors made by the magistrate in entering

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the directed verdict.”).

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Accordingly,

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IT IS ORDERED that Petitioner’s Request for Transcript (doc. 38) is DENIED.

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Dated this 7th day of November, 2016.

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