Cortinas v. Gipson et al

Filing 98

ORDER Granting 97 Plaintiff's Request for a Copy of the Transcript of the Evidentiary Hearing at State Government Expense, signed by Magistrate Judge Stanley A. Boone on 5/28/15. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LARRY WILLIAM CORTINAS, 12 13 14 Plaintiff, v. M. PORTILLO, et al., 15 Defendants. 16 17 18 ) ) ) ) ) ) ) ) ) ) Case No.: 1:13-cv-01229-AWI-SAB (PC) ORDER GRANTING PLAINTIFF’S REQUEST FOR A COPY OF THE TRANSCRIPT OF THE EVIDENTIARY HEARING AT STATE GOVERNMENT EXPENSE [ECF No. 97] Plaintiff Larry William Cortinas is appearing pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. 19 On May 13, 2015, this Court conducted an evidentiary hearing to address the issue of 20 Plaintiff’s exhaustion of the administrative remedies. Subsequent to the hearing, the Court ordered 21 simultaneous briefing by the parties due May 29, 2015. 22 23 24 25 26 On May 14, 2015, Defendants requested a copy of the transcript of the evidentiary hearing. (ECF No. 94.) On May 22, 2015, Plaintiff filed a request for the evidentiary hearing transcripts per the request by defense counsel. (ECF No. 97.) A litigant who has been granted in forma pauperis status may move to have transcripts 27 produced at government expense. Two statutes must be considered whenever the district court 28 receives a request to prepare transcripts at the government’s expense. First, 28 U.S.C. § 1915(c) 1 1 defines the limited circumstances under which the Court can direct the government to pay for 2 transcripts for a litigant proceeding in forma pauperis. 3 4 5 6 7 8 9 10 11 (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 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 12 if “the trial judge or a circuit judge certifies that the suit or appeal is not frivolous and that the 13 transcript is needed to decide the issue presented by the suit or appeal.” A request for a transcript at 14 government expense should not be granted unless “the appeal presents a substantial issue.” Henderson 15 v. United States, 734 F.2d 483, 484 (9th Cir. 1984). 16 In this instance, based on the substantial amount of argument and evidence presented at the 17 evidentiary hearing relating to Defendants’ defense of Plaintiff’s failure to exhaust the administrative 18 remedies, the Court ordered subsequent briefing by both parties. Defense counsel has requested and 19 received a copy of the transcript of the evidentiary hearing, and under these circumstances, the Court 20 finds a substantial issue involved that warrants production of the evidentiary transcripts at government 21 expense to assist Plaintiff in drafting his brief. 28 U.S.C. § 1915(c)(2). Accordingly, the Court will 22 direct the court reporter to provide Plaintiff a copy of the transcript of the May 13, 2015, evidentiary 23 hearing at government expense. In light of this ruling, the Court will extend the deadline to submit 24 simultaneous briefs to June 15, 2015. 25 Based on the foregoing, it is HEREBY ORDERED that: 26 1. 27 Plaintiff’s request for a copy of the evidentiary hearing transcript at the expense of the United States government is GRANTED; 28 2 2. 1 The court reporter is directed to provide Plaintiff a copy of the transcript of the May 13, 2015, evidentiary hearing at the expense of the United States government; and 2 3. 3 The deadline to file a brief is extended to June 15, 2015. 4 5 IT IS SO ORDERED. 6 Dated: 7 May 28, 2015 UNITED STATES MAGISTRATE JUDGE 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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