Rios v. Tilton, et. al.

Filing 281

ORDER signed by Magistrate Judge Kendall J. Newman on 3/22/2017 DENYING without prejudice plaintiff's 280 motion for preparation of transcripts at government's expense. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 RENO FUENTES RIOS, 12 13 14 15 No. 2:07-cv-0790 KJN P Plaintiff, v. ORDER J.E. TILTON, et al., Defendants. 16 17 Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Following jury 18 verdict for defendants, judgment was entered on November 4, 2016. Plaintiff filed an appeal. On 19 February 23, 2017, plaintiff filed a motion for trial transcripts. 20 I. Legal Standard for Preparation of Transcripts at Government Expense 21 28 U.S.C. § 1915(c) states, in relevant part, “Upon the filing of an affidavit in accordance 22 with subsections (a) and (b) and the prepayment of any partial filing fee as may be required under 23 subsection (b), the court may direct payment by the United States of the expenses of (1) printing 24 the record on appeal in any civil or criminal case, if such printing is required by the appellate 25 court….” Section 1915(a) states: 26 27 28 (1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner 1 1 possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress. 2 3 (2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action or proceeding without prepayment of fees or security therefor, in addition to filing the affidavit filed under paragraph (1), shall submit a certified copy of the trust fund account statement (or institutional equivalent) for the prisoner for the 6month period immediately preceding the filing of the complaint or notice of appeal, obtained from the appropriate official of each prison at which the prisoner is or was confined. 4 5 6 7 8 28 U.S.C. § 1915(a). Title 28 U.S.C. § 753(f) states, in relevant part, “[f]ees for transcripts 9 furnished in [civil] proceedings to persons permitted to appeal in forma pauperis shall also be 10 paid by the United States if the trial judge or a circuit judge certifies that the appeal is not 11 frivolous (but presents a substantial question).” See also Maloney v. E. I. DuPont de Nemours & 12 Co., 396 F.2d 939, 940 (D.C. Cir. 1967); Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 13 1984). 14 II. Discussion Plaintiff asks the court to order transcripts of the trial at the government’s expense.1 The 15 16 transcripts will be used to support an appeal. According to plaintiff he is an indigent state 17 prisoner. Defendants did not respond to plaintiff’s motion. 18 Plaintiff does not raise any issue for appeal, and he does not argue that his appeal presents 19 a substantial issue. Rather, he seeks “all docket entries filed in the instant action of all document 20 entries to properly file the opening brief,”2 as well as the transcripts. (ECF No. 280 at 2.) 21 Plaintiff claims his prior attorney mailed a copy of the transcripts “to Sacramento” but claims 22 plaintiff was hospitalized and transferred. (Id.) 23 //// 24 25 26 27 28 1 Plaintiff did not ask the court to direct the United States to pay for printing the record on appeal, and has not alleged that the Ninth Circuit requires such a record to be printed. Thus, plaintiff’s request is analyzed under § 753(f). 2 Review of the Ninth Circuit docket reflects that on February 16, 2017, plaintiff’s motion for appointment of counsel was granted, and on February 23, 2017, briefing was stayed. Rios v. Brandon, No. 16-17213 (9th Cir.). 2 1 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for preparation of 2 transcripts at government’s expense (ECF No. 280) is denied without prejudice. 3 Dated: March 22, 2017 4 5 6 /rios0790.tra 7 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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