Elofson v. Bivens et al

Filing 157

ORDER DENYING 154 PLAINTIFF'S MOTION FOR TRANSCRIPT AT GOVERNMENT EXPENSE. Signed by Judge Beth Labson Freeman on 4/19/2017. (blflc1S, COURT STAFF) (Filed on 4/19/2017)

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1 2 3 UNITED STATES DISTRICT COURT 4 NORTHERN DISTRICT OF CALIFORNIA 5 SAN JOSE DIVISION 6 7 GREG STEVEN ELOFSON, Plaintiff, 8 v. 9 10 STEPHANIE MCCOLLUM, Defendant. 11 United States District Court Northern District of California Case No. 15-cv-05761-BLF ORDER DENYING PLAINTIFF'S MOTION FOR TRANSCRIPT AT GOVERNMENT EXPENSE [Re: ECF 154] 12 13 On February 13, 2017, this Court issued an order (“Order”) dismissing Plaintiff’s claims 14 against all but one defendant in this action without leave to amend. See Order Granting Motions 15 to Dismiss First Amended Complaint Without Leave to Amend, ECF 149. The remaining 16 defendant, Stephanie McCollum, subsequently filed a motion to dismiss which is set for hearing 17 on June 29, 2017. See Motion to Dismiss, ECF 153. On March 8, 2017, Plaintiff filed a Notice of Appeal of the Order. Notice of Appeal, ECF 18 19 151. Plaintiff now requests that he be provided with a transcript of the hearing on the motions 20 addressed in the Order pursuant to his in forma pauperis status. See Motion for Transcripts, ECF 21 154. 22 A party who has been permitted to proceed in forma pauperis in the district court generally 23 may proceed in forma pauperis on appeal without further authorization, Fed. R. App. P. 24(a)(3), 24 and “[a] litigant who has been granted leave to proceed in forma pauperis on appeal may move to 25 have transcripts produced at government expense,” Tuggles v. City of Antioch, No. C08-01914 26 JCS, 2010 WL 3955784, at *1 (N.D. Cal. Oct. 8, 2010). However, transcripts will be provided at 27 government expense only “if the trial judge or a circuit judge certifies that the appeal is not 28 frivolous (but presents a substantial question).” 28 U.S.C. § 753(f). The Order from which Plaintiff appeals dismissed some, but not all, defendants in this 1 2 action and therefore it is not an appealable order. Maurer v. Individually & as Members of Los 3 Angeles Cnty. Sheriff’s Dep’t, 691 F.2d 434, 436 (9th Cir. 1982) (“A dismissal as to some but not 4 all defendants is not a final order as required by 28 U.S.C. § 1291, and is not appealable absent a 5 certification under Fed. R. Civ. P. 54(b).”). The appeal therefore is frivolous, as it is insufficient 6 to transfer jurisdiction to the appellate court. See Estate of Conners by Meredith v. O’Connor, 6 7 F.3d 656, 658 (9th Cir. 1993) (“[T]ransfer of jurisdiction from the district court to the court of 8 appeals is not effected, however, if a litigant files a notice of appeal from an unappealable 9 order.”); Lopez v. Newport Beach Police Dep’t, No. SA CV 16-02267-VBF-MRW, 2017 WL 729700, at *2 (C.D. Cal. Feb. 27, 2017) (“When a party files a notice of appeal from an 11 United States District Court Northern District of California 10 interlocutory order or decision and neither a statute nor a district-court certification authorizes an 12 interlocutory appeal under the circumstances, the appeal is considered ‘frivolous.’”). 13 Accordingly, Plaintiff’s Motion for Transcripts is DENIED without prejudice to renewal in 14 the context of any future appeal from an appealable order or judgment of this Court. This ruling is 15 based solely on the procedural defect discussed above and not on the substance of Plaintiff’s 16 appeal. 17 The Court notes that Plaintiff also has filed a Motion for Transcripts in the Court of 18 Appeals. See Elofson v. Bivens, Ct. App. Docket 17-15420, ECF 2. This Court’s ruling on the 19 present motion is not intended to and does not affect the authority of the Court of Appeals to 20 conduct an independent evaluation of the Motion for Transcripts presented to it. 21 IT IS SO ORDERED. 22 23 24 25 Dated: April 19, 2017 ______________________________________ BETH LABSON FREEMAN United States District Judge 26 27 28 2

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