Dews v. County of Kern et al

Filing 56

ORDER Denying Plaintiff's 55 Request for Reporter's Transcript at Government Expense signed by Magistrate Judge Michael J. Seng on 08/19/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CLARENCE LEON DEWS,

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ORDER DENYING PLAINTIFF’S
REQUEST FOR REPORTER’S
TRANSCRIPT AT GOVERNMENT
EXPENSE

Plaintiff,

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CASE NO. 1:12-cv-0245-AWI-MJS (PC)

v.
COUNTY OF KERN, et al.,

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(ECF No. 55)

Defendants.

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Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil

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rights action brought pursuant to 42 U.S.C. § 1983.

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On April 28, 2014, the undersigned filed findings and recommendations that

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Plaintiff‟s action be dismissed for failure to state a claim. (ECF No. 43.) On June 30,

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2014,

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recommendations (ECF No. 49), judgment was entered thereon (ECF No. 50), and the

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case was closed.

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the

District

Judge

assigned

to this case

adopted

the findings and

Plaintiff appealed the dismissal to the United States Court of Appeals for the Ninth
Circuit (ECF No. 51), which has not yet ruled on the appeal.
Before the Court is Plaintiff‟s August 6, 2014 pleading, which appears to be a
request for an unspecified reporter‟s transcript at government expense. (ECF No. 55.)

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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), overruled on other grounds by

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Helling v. McKinney, 502 U.S. 903 (1991). Two statutes must be considered whenever

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the District Court receives a request to prepare transcripts at the government‟s expense.

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First, 28 U.S.C. § 1915(c) defines the limited circumstances under which the Court can

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direct the government to pay for transcripts for a litigant proceeding in forma pauperis:

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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 only if “the trial judge or a circuit judge certifies that the appeal is not frivolous
(but presents a substantial question).” 28 U.S.C. § 753(f); Henderson v. United States,
734 F.2d 483, 484 (9th Cir. 1984). A “substantial question” under § 753(f) is “one which
is „reasonably debatable‟ based on an objective standard.” United States v. Frost, 344 F.
Supp. 2d 206, 208 n.1 (D. Me. 2004) (citation omitted). “In addition, the requested trial
transcript must be „required for proper appellate review.‟” Id.
Here, neither the District Court nor the Court of Appeals has required the record
on appeal or a transcript of any proceedings. Based on Plaintiff's notice of appeal, the
Court finds that the appeal does not present a substantial question, and there is no
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indication that any transcript is necessary for proper appellate review. See id. (transcript

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denied where indigent party failed to specify grounds for appeal).

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In addition, Plaintiff is notified that the Court of Appeals has access to the District

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Court's file in this case, and will request directly from this Court any necessary

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documents that are in the record. If Plaintiff desires copies of documents contained in

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the record he may request such from the District Court Clerk at $0.50 per page.

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Based on the foregoing, it is HEREBY ORDERED that Plaintiff's Motion for

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Reporter‟s Transcript at Government Expense (ECF No. 55) is DENIED. Plaintiff may

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renew his request for a transcript at government expense with the Court of Appeals by

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filing a motion there if he wishes.

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IT IS SO ORDERED.
Dated:

August 19, 2014

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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