Shepard v. Quillen

Filing 161

ORDER DENYING 160 Motion for Trial Transcripts at Government Expense, signed by Magistrate Judge Barbara A. McAuliffe on 05/20/2013. (Martin-Gill, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LAMONT SHEPARD,

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Plaintiff,

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v.
T. QUILLEN,

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Defendant.

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Case No.: 1:09-cv-00809-BAM PC
ORDER DENYING PLAINTIFF’S MOTION FOR
TRIAL TRANSCRIPTS
(ECF No. 160)

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I.

Introduction

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Plaintiff Lamont Shepard (“Plaintiff”), a state prisoner, proceeded pro se and in forma pauperis

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in this civil rights action pursuant to 42 U .S.C. § 1983. Plaintiff initiated this action on May 7, 2009.

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(ECF No. 1.) The matter proceeded to a jury trial on March 19, 2013. The jury returned a special

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verdict in favor of Defendant Quillen on March 20, 2013, and judgment for Defendant Quillen was

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entered on March 26, 2013. (ECF Nos. 153, 154.) Plaintiff appealed to the Ninth Circuit Court of

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Appeals. (ECF No. 155.) Currently pending before the Court is Plaintiff's motion for trial transcripts

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at government expense, which was filed on April 29, 2013. (ECF No. 166.)

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II.

Discussion

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

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

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1511-12 (9th Cir.1991), overruled on other grounds by Helling v. McKinney, 502 U.S. 903, 112 S.Ct.
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291, 116 L.Ed.2d 236 (1991). Two statutes must be considered whenever the district court receives a

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request to prepare transcripts at government expense. First, 28 U.S.C. § 1915(c) defines the limited

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circumstances in which the court can direct payment by the United States for printing the record on

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appeal for an indigent litigant. Section 1915(c) provides:

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

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

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presents a substantial question).” 28 U.S.C. § 753(f). A request for a transcript at government expense

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should not be granted unless the appeal presents a substantial question. Henderson v. United States,

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734 F.2d 483, 484 (9th Cir.1984).

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Based on Plaintiff's notice of appeal, which is devoid of any information or basis of appeal, the

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Court cannot find that the appeal presents a substantial question and the request for a trial transcript at

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government expense shall be denied. Plaintiff is notified that the appellate court will request any

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necessary documents that are in the record directly from this Court. However, Plaintiff may renew his

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request for a transcript at government expense with the appellate court by filing a motion in that court.

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III.

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Based on the above, Plaintiff's motion for trial transcripts at government expense is DENIED.

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Conclusion and Order

IT IS SO ORDERED.
Dated:

/s/ Barbara

May 20, 2013

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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