Ramon Arceo v. Gonzales et al

Filing 147

ORDER DENYING Plaintiff's 146 Motion for Reporter's Transcript at Government Expense, signed by Magistrate Judge Michael J. Seng on 6/20/16. (Marrujo, C)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RAMON ARCEO,

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Plaintiff,
v.
J. GONZALES, et al.,

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CASE NO. 1:13-cv-02083-MJS (PC)
ORDER DENYING PLAINTIFF’S MOTION
FOR REPORTER’S TRANSCRIPT AT
GOVERNMENT EXPENSE
(ECF No. 146)

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. The case, now closed, proceeded

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against defendants Recio, Souvannakham, and Gonzales on Plaintiff’s Eighth

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Amendment excessive force and state law assault and battery claims. All parties

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consented to Magistrate Judge jurisdiction for all purposes in accordance with 28 U.S.C.

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§ 636(b)(1)(B).

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The case was tried to a jury, and judgment was entered in favor of Defendants.

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(ECF Nos. 135-138.) Plaintiff appealed. (ECF No. 143.) Before the Court is Plaintiff’s

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June 17, 2016 motion for transcripts at government expense. (ECF No. 146.)

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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 Plaintiff’s notice of appeal nor his motion for transcripts reveals the
grounds for his appeal or the issues he contests. Accordingly, the Court has no basis
from which to conclude that the appeal presents a substantial question or that the
transcripts are necessary for proper appellate review. See id. (transcript denied where

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indigent party failed to specify grounds for appeal); Hudson v. Brian, No. 1:08–cv–

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00249–AWI–JLT, 2012 WL 1019909, at *2 (E.D. Cal. Mar. 26, 2012) (same).

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Based on the foregoing, Plaintiff's motion for transcript at government expense
(ECF No. 146) is HEREBY DENIED without prejudice.

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IT IS SO ORDERED.
Dated:

June 20, 2016

/s/

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Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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