McElroy v. Cox et al

Filing 170

ORDER denying Plaintiff's 169 Motion for Trial Transcript signed by Magistrate Judge Gary S. Austin on 10/18/2018. (Lundstrom, T)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY,

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Plaintiff,

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v.

1:08-cv-01221-LJO-GSA-PC
ORDER DENYING PLAINTIFF’S MOTION
FOR TRIAL TRANSCRIPT
(ECF NO. 169.)

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ROY COX, et al.,
Defendants.

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I.

RELEVANT PROCEDURAL HISTORY

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Latwahn McElroy (“Plaintiff”) is a state prisoner proceeding pro se and in forma

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pauperis with this civil rights action filed pursuant to 42 U.S.C. § 1983. District Judge

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Lawrence J. O’Neill presided over a jury trial in this case. On June 19, 2012, the jury returned

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a unanimous verdict in favor of the defendants.
On September 27, 2018, Plaintiff filed a motion for the court to provide him with a

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transcript of the trial. (ECF No. 169.)

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II.

MOTION FOR TRANSCRIPT

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A.

Legal Standard

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To obtain a transcript at government expense, Plaintiff must satisfy the criteria of 28

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U.S.C. § 753(f). Section 753(f) provides, in part, that the United States shall pay the fees for

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transcripts furnished in civil proceedings to persons permitted to appeal in forma pauperis
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(IFP) if the trial judge or a circuit judge certifies that the appeal is not frivolous (i.e., it presents

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a substantial question). § 753(f). This requirement is applicable to pro se litigants. See Morris

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v. Long, No. 1:08–cv–01422–AWI–MJS, 2012 WL 5208503, at *1 (E.D. Cal. Oct. 22, 2012)

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(finding that the pro se litigant proceeding in forma pauperis was required to “identify the

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issues he intends to raise on appeal and explain why those issues are meritorious in order to

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meet the . . . standard [for production of trial transcripts at government expense].”); Woods v.

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Carey, No. CIV S–04–1225 LKK GGH P, 2009 WL 2905788, at *1 (E.D. Cal. Sept. 4, 2009)

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(same).

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B.

Plaintiff’s Motion

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Plaintiff requests the court to provide him with a transcript of the trial in this case.

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Plaintiff states that the court did not send him a transcript of the trial and that he will need one

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for appellate review.

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Plaintiff has already received approval to proceed in forma pauperis (ECF No. 4), and

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there is no indication in the record that his financial situation has changed. However, Plaintiff

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has not alleged that his appeal presents a substantial issue. The motion simply states that he

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needs a copy of the transcript for appellate review. There is no mention of the issues on appeal,

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let alone an argument that the issues on appeal are substantial. Therefore, Plaintiff’s motion

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shall be denied.

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III.

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CONCLUSION
Based on the foregoing, IT IS HEREBY ORDERED that Plaintiff’s motion for a

transcript of his trial, filed on September 27, 2018, is DENIED.

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IT IS SO ORDERED.
Dated:

October 18, 2018

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

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