Branch v. Grannis, et al.,

Filing 332

ORDER DENYING Plaintiff's 330 Motion for In Forma Pauperis Request for Trial Record, signed by Magistrate Judge Stanley A. Boone on 03/31/2017. (Martin-Gill, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LOUIS BRANCH, 14 15 ORDER DENYING PLAINTIFF’S IN FORMA PAUPERIS REQUEST FOR TRIAL RECORD Plaintiff, 12 13 Case No. 1:08-cv-01655-SAB (PC) v. D. UMPHENOUR, et al., (ECF No. 330) Defendants. 16 17 This action proceeded to a jury trial on January 30, 2017. On January 31, 2017, the jury 18 returned a verdict in favor of Defendants Umphenour, Szalai, and Alvarez. Plaintiff Louis 19 Branch filed a notice of appeal on March 1, 2017. On March 30, 2017, Plaintiff filed an in forma 20 pauperis request for trial records and attaches a transcript order requesting transcripts of the 21 entire trial. (ECF No. 330.) Plaintiff states that the records are sought pursuant to 28 U.S.C. § 22 753(f). There are two statutes that the Court considers in determining whether to provide 23 transcripts at government expense. 24 First, 28 U.S.C. § 1915(c), identifies limited circumstances under which the court can 25 direct payment of such expenses at the government expense. Section 1915(c) provides for 26 payment where “(1) printing the record on appeal in any civil or criminal case, if such printing is 27 required by the appellate court; (2) preparing a transcript of proceedings before a United States 28 magistrate judge in any civil or criminal case, if such transcript is required by the district court, 1 1 in the case of proceedings conducted under section 636(b) of this title or under section 3401(b) 2 of title 18, United States Code; and (3) printing the record on appeal if such printing is required 3 by the appellate court, in the case of proceedings conducted pursuant to section 636(c) of this 4 title.” None of these circumstances exist in this instance. 5 Second, Section 753(f) provides that fees for transcripts are furnished in criminal 6 proceedings, habeas corpus proceedings, or proceedings brought under section 2255 of Title 28. 7 In all other proceedings in which a person is permitted to appeal, transcripts shall be paid by the 8 United States “if the trial judge or a circuit judge certifies that the appeal is not frivolous (but 9 presents a substantial question).” 28 U.S.C. 753(f). The Court should not enter an order 10 granting such a request unless it finds that the appeal presents a substantial question. Henderson 11 v. United States, 734 F.2d 483, 484 (9th Cir. 1984). 12 Plaintiff seeks the trial transcripts to appeal his change of venue motion, requests for 13 appointment of counsel, a racial epithet proclaimed by defense counsel, the admission of hearsay 14 evidence, and defense counsel’s violations of Rule 404 of the Federal Rules of Evidence. (ECF 15 No. 330.) Plaintiff contends that defense counsel uttered a racial epithet. In his motion for the 16 parties to bear their own costs, Plaintiff stated that “counsel for defendants’ racial epithet that 17 plaintiff was a ‘black gorilla’ then amended to state plaintiff was a ‘member of the Black 18 Guerrilla Family’ was inexcusable.” (ECF No. 329 at 2:19-21.) However, even if defense 19 counsel made such a statement it could not reasonably be construed as a racial epithet, rather the 20 statement was related to Plaintiff’s membership in the Black Gorilla gang. To the extent that 21 Plaintiff raises the change of venue, appointment of counsel, admission of hearsay evidence, and 22 violations of Rule 404, the Court does not find a substantial question has been presented. 23 Plaintiff may renew his request for a transcript at government expense with the appellate 24 court by filing a motion there if he wishes. Additionally, Plaintiff is advised that the appellate 25 court has access to the court’s file in this case, and will request any necessary documents that are 26 in the record directly from this court. 27 / / / 28 / / / 2 Based on the foregoing, Plaintiff’s motion for a transcript of the trial proceedings is 1 2 DENIED. 3 4 IT IS SO ORDERED. 5 Dated: March 31, 2017 UNITED STATES MAGISTRATE JUDGE 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3

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