Polk v. Lattimore et al

Filing 182

ORDER DENYING 180 Motion for Transcripts at Government Expense as Moot; ORDER DENYING 181 Request to Proceed In Forma Pauperis on Appeal as Moot, signed by Magistrate Judge Barbara A. McAuliffe on 11/18/2022. The Clerk of the Court is directed to send a copy of this order to the Ninth Circuit Court of Appeals. (Rivera, O)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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SUSAN MAE POLK,

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Plaintiff,
v.
LATTIMORE, et al.,

Case No. 1:12-cv-01156-ADA-BAM (PC)
Appeal No. 22-16706
ORDER DENYING MOTION FOR
TRANSCRIPTS AT GOVERNMENT
EXPENSE AS MOOT
(ECF No. 180)

Defendants.
ORDER DENYING REQUEST TO PROCEED
IN FORMA PAUPERIS ON APPEAL AS
MOOT
(ECF No. 181)

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Plaintiff Susan Mae Polk (“Plaintiff”) is a state prisoner who proceeded pro se and in
forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983.
On October 12, 2022, the Court granted Defendant’s motion for summary judgment and

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dismissed this action, without prejudice, for the failure to exhaust available administrative

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remedies. (ECF No. 174.) Judgment was entered accordingly the same date. (ECF No. 175.)

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Plaintiff filed a notice of appeal on October 31, 2022, (ECF No. 176), which was

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processed to the Ninth Circuit Court of Appeals, (ECF No. 177). Plaintiff filed an amended

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notice of appeal on November 4, 2022. (ECF No. 179.)

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Currently before the Court are Plaintiff’s motion for transcripts, (ECF No. 180), and
request to proceed in forma pauperis on appeal, (ECF No. 181), filed November 10, 2022.
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In her motion for transcripts at government expense, Plaintiff requests that, pursuant to 28

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U.S.C. § 753(f), copies of certain documents be sent to her as well as to the Court of Appeals.

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(ECF No. 180.) Specifically, Plaintiff requests copies of:
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First through and including Fifth Amended Complaint
Original Complaint
Magistrate Judge’s Findings and Recommendations dismissing the Fifth Amended
Complaint (Doc. 161)
Plaintiff’s objections (Doc. 170)
Defendants’ Motion for Summary Judgment (Doc. 147)
Plaintiff’s Opposition (Doc. 159)
Plaintiff’s Response to Defendants’ Motion for Summary Judgment (Doc. 172)
Defendants’ Reply (Doc. 160)
District Judge’s Order Adopting Findings and Recommendations (Doc. 174)

(ECF No. 180, pp. 2–3.)

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Plaintiff’s request is denied as moot. Plaintiff cites 28 U.S.C. § 753(f) in support of her

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request, but this section allows persons proceeding in forma pauperis on appeal to be provided

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transcripts of recorded sessions or proceedings held before the District Court, not for copies of

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documents filed. None of the requested documents constitute transcripts as intended by this

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section, and all proceedings in this action were conducted by written briefing submitted by the

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parties. As such, no transcripts are available for this action.

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To the extent Plaintiff seeks transmittal of the record to the Ninth Circuit Court of

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Appeals, Plaintiff, as a pro se litigant, is not required to file an excerpt of record. Circuit Rule 30-

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1.3.

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With respect to Plaintiff’s request to proceed in forma pauperis on appeal, Plaintiff was

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proceeding in forma pauperis in this Court and therefore, the motion is denied as moot. Plaintiff

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may proceed in forma pauperis on appeal without further authorization. Fed. R. App. P. 24(a)(3).

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Accordingly, IT IS HEREBY ORDERED as follows:
1. Plaintiff’s motion for transcripts at government expense, (ECF No. 180), is DENIED as
moot;
2. Plaintiff’s request to proceed in forma pauperis on appeal, (ECF No. 181), is DENIED as
moot; and
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3. The Clerk of the Court is directed to send a copy of this order to the Ninth Circuit Court of
Appeals.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 18, 2022

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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