Brush v. Woodford et al

Filing 221

ORDER DENYING 220 Motion for Transcripts, signed by Magistrate Judge Dennis L. Beck on 2/13/2012. (Marrujo, C)

1
2
3
4
5
6

UNITED STATES DISTRICT COURT

7
EASTERN DISTRICT OF CALIFORNIA
8
9

GARY H. BRUSH,

10
11

CASE NO. 1:07-cv-01009-DLB PC
Plaintiff,

OR DER DENYING
TRANSCRIPTS

MOTION

FOR

v.
(ECF Nos. 215, 220)

12

J. WOODFORD, et al.,

13

Defendants.
/

14
15

Plaintiff Gary H. Brush (“Plaintiff”) is a state prisoner proceeding pro se and in forma

16

pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Following an order to show cause

17

hearing this action was dismissed on November 1, 2011, as a sanction for Plaintiff filing false

18

declarations in support of his motion for the attendance of incarcerated witnesses. Plaintiff filed an

19

appeal on November 21, 2011. On November 8, 2011, Plaintiff filed a request for transcripts and

20

on February 7, 2012, Plaintiff filed a motion for transcripts.

21

Initially, in Plaintiff’s request for transcripts filed November 8, 2011, he requests a copy of

22

the Rules of Civil Procedure showing the alternatives available when an action has been dismissed

23

with prejudice and seeks advice on whether he can appeal the decision to the District Court Judge

24

or the Ninth Circuit. Since Plaintiff has filed an appeal with the Ninth Circuit these requests are

25

denied as moot.

26

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

27

produced at government expense. See 28 U.S.C. § 753(f); McKinney v. Anderson, 924 F.2d 1500,

28

1511-12 (9th Cir.1991) (subsequent history omitted). Two statutes must be considered whenever
1

1

the district court receives a request to prepare transcripts at the government’s expense. First, 28

2

U.S.C. § 1915(c) defines the limited circumstances under which the court can direct payment the

3

government to pay for transcripts for a litigant proceeding in forma pauperis.

4
5
6
7
8
9
10
11

(c) Upon the filing of an affidavit in accordance with subsections (a) and (b) and the
prepayment of any partial filing fee as may be required under subsection (b), the
court may direct payment by the United States of the expenses of (1) printing the
record on appeal in any civil or criminal case, if such printing is required by the
appellate court; (2) preparing a transcript of proceedings before a United States
magistrate judge in any civil or criminal case, if such transcript is required by the
district court, in the case of proceedings conducted under section 636(b) of this title
or under section 3401(b) of title 18, United States Code; and (3) printing the record
on appeal if such printing is required by the appellate court, in the case of
proceedings conducted pursuant to section 636(c) of this title. Such expenses shall
be paid when authorized by the Director of the Administrative Office of the United
States Courts.
28 U.S.C. § 1915(c).

12

Second, 28 U.S.C. § 753(f) allows the court to order the government to pay for transcripts

13

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

14

transcript is needed to decide the issue presented by the suit or appeal.” 28 U.S.C. § 753(f). A

15

request for a transcript at government expense should not be granted unless the appeal presents a

16

substantial question. Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984). Based on

17

Plaintiff’s notice of appeal, the Court finds that the appeal does not present a substantial question

18

and the request for a transcript at government expense is denied. Plaintiff may renew his request for

19

a transcript at government expense with the appellate court by filing a motion there if he wishes.

20
21
22
23
24
25

In addition, Plaintiff is notified that the appellate court has access to the court’s file in this
case, and will request any necessary documents that are in the record directly from this court.
Based on the foregoing, Plaintiff’s motions for a transcript of the order to show cause hearing
are HEREBY DENIED.
IT IS SO ORDERED.
Dated:
3b142a

February 13, 2012

/s/ Dennis L. Beck
UNITED STATES MAGISTRATE JUDGE

26
27
28
2