McNeal v. Fleming, et al

Filing 394

ORDER signed by District Judge Troy L. Nunley on 9/14/18 GRANTING 393 Request for Transcripts at the government's Expense.(Kaminski, H)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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VERNON WAYNE McNEAL,

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No. 2:02-cv-02524-TLN-CKD

Plaintiff,

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v.

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FLEMING, et al.,

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ORDER

Defendant.

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This matter is before the Court pursuant to Plaintiff Vernon McNeal’s (“Plaintiff”)

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renewed Request for Transcripts at Government Expense. (ECF No. 393.) Transcript requests by

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persons permitted to appeal in forma pauperis shall be paid by the United States if the trial judge

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certifies the appeal is not frivolous. 28 U.S.C. § 753(f). Plaintiff’s request includes three grounds

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for appeal for which he needs trial transcripts. (ECF No. 393 at 2.) Plaintiff explains his appeal

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is not frivolous because: (1) he stated multiple times Defendant Hatley restarted the tape recorded

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of Plaintiff’s incident statement; (2) he was not provided adequate medical care and MTA Baton

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could not even remember what she wrote on the medical report about the incident; and (3) the

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make-up of the jury violated his constitutional rights because the jury was all white. (ECF No.

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393 at 2.)

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As to the first ground for appeal, Plaintiff was afforded an opportunity at trial to question
Defendant Hatley about restarting the tape. Plaintiff’s statement that “he has been stating from
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the beginning that Defendant Hatley restarted the tape,” is a disputed fact that was discussed at

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trial. Plaintiff elicited testimony on this fact which either contradicted Plaintiff’s version of

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events or made it clear the witness could not recall whether the tape was restarted. The jury, not

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the Court, weighs the credibility of witnesses and the jury credited other testimony over

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Plaintiff’s testimony regarding the tape. Moreover, the tape Plaintiff references is a tape made

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after the incident where prison staff interviewed Plaintiff about the alleged excessive force. The

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fact that the tape was restarted during Plaintiff’s interview is not relevant to the question of

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whether the incident itself constituted excessive force. Thus, the appeal is frivolous as to this

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ground.

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As to the second ground, the fact that MTA Baton cannot recall what she wrote on the

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medical report is not sufficient grounds for appeal. Plaintiff was afforded an opportunity to

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question MTA Baton about the medical care Plaintiff received. Additionally, Plaintiff was

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permitted to testify about his medical care. While the Court recognizes Plaintiff’s frustration that

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MTA Baton could not recall what she wrote on the medical report, the Court notes this case is

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over 15 years old and thus forgetting details of the incident is understandable. MTA Baton’s

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failure to remember is not a sufficient ground for appeal.

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Finally, the Court turns to Plaintiff’s contention that his constitutional rights were violated

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because he had an all-white jury. The Court’s process of selecting jurors is first to pull in a

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random cross-section of the community, then to randomly select jurors to be placed in the jury

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box for questioning. The Court conducted this trial as it does all other trials. Plaintiff was given

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an opportunity to question jurors, remove jurors for cause, and afforded three preemptory

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challenges. Plaintiff did not object to the jury selection process at trial. However, out of an

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abundance of caution, the Court finds this ground for appeal is not frivolous and invites the Ninth

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Circuit to review this District’s jury selection process to ensure litigants are given all means

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necessary for a fair trial.

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For the reasons set forth above, the Court finds the last ground for appeal is not frivolous

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and hereby GRANTS Plaintiff’s request for transcripts at the government’s expense. (ECF No.

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393.)
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IT IS SO ORDERED

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Dated: September 14, 2018

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Troy L. Nunley
United States District Judge

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