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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RENO FUENTES RIOS,

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No. 2:07-cv-0790 KJN P

Plaintiff,
v.

ORDER

J.E. TILTON, et al.,
Defendants.

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Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. Following jury

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verdict for defendants, judgment was entered on November 4, 2016. Plaintiff filed an appeal. On

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February 23, 2017, plaintiff filed a motion for trial transcripts.

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I. Legal Standard for Preparation of Transcripts at Government Expense

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28 U.S.C. § 1915(c) states, in relevant part, “Upon the filing of an affidavit in accordance

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with subsections (a) and (b) and the prepayment of any partial filing fee as may be required under

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subsection (b), the court may direct payment by the United States of the expenses of (1) printing

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the record on appeal in any civil or criminal case, if such printing is required by the appellate

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court….” Section 1915(a) states:

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(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
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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.

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(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.

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28 U.S.C. § 1915(a). Title 28 U.S.C. § 753(f) states, in relevant part, “[f]ees for transcripts

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furnished in [civil] proceedings to persons permitted to appeal in forma pauperis shall also be

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paid by the United States if the trial judge or a circuit judge certifies that the appeal is not

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frivolous (but presents a substantial question).” See also Maloney v. E. I. DuPont de Nemours &

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Co., 396 F.2d 939, 940 (D.C. Cir. 1967); Henderson v. United States, 734 F.2d 483, 484 (9th Cir.

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1984).

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II. Discussion
Plaintiff asks the court to order transcripts of the trial at the government’s expense.1 The

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transcripts will be used to support an appeal. According to plaintiff he is an indigent state

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prisoner. Defendants did not respond to plaintiff’s motion.

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Plaintiff does not raise any issue for appeal, and he does not argue that his appeal presents

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a substantial issue. Rather, he seeks “all docket entries filed in the instant action of all document

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entries to properly file the opening brief,”2 as well as the transcripts. (ECF No. 280 at 2.)

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Plaintiff claims his prior attorney mailed a copy of the transcripts “to Sacramento” but claims

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plaintiff was hospitalized and transferred. (Id.)

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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).
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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.).
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for preparation of

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transcripts at government’s expense (ECF No. 280) is denied without prejudice.

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Dated: March 22, 2017

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/rios0790.tra

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