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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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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SAN JOSE DIVISION

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GREG STEVEN ELOFSON,
Plaintiff,

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v.

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STEPHANIE MCCOLLUM,
Defendant.

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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]

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On February 13, 2017, this Court issued an order (“Order”) dismissing Plaintiff’s claims

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against all but one defendant in this action without leave to amend. See Order Granting Motions

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to Dismiss First Amended Complaint Without Leave to Amend, ECF 149. The remaining

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defendant, Stephanie McCollum, subsequently filed a motion to dismiss which is set for hearing

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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

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151. Plaintiff now requests that he be provided with a transcript of the hearing on the motions

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addressed in the Order pursuant to his in forma pauperis status. See Motion for Transcripts, ECF

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154.

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A party who has been permitted to proceed in forma pauperis in the district court generally

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may proceed in forma pauperis on appeal without further authorization, Fed. R. App. P. 24(a)(3),

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and “[a] litigant who has been granted leave to proceed in forma pauperis on appeal may move to

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have transcripts produced at government expense,” Tuggles v. City of Antioch, No. C08-01914

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JCS, 2010 WL 3955784, at *1 (N.D. Cal. Oct. 8, 2010). However, transcripts will be provided at

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government expense only “if the trial judge or a circuit judge certifies that the appeal is not

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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

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action and therefore it is not an appealable order. Maurer v. Individually & as Members of Los

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Angeles Cnty. Sheriff’s Dep’t, 691 F.2d 434, 436 (9th Cir. 1982) (“A dismissal as to some but not

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all defendants is not a final order as required by 28 U.S.C. § 1291, and is not appealable absent a

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certification under Fed. R. Civ. P. 54(b).”). The appeal therefore is frivolous, as it is insufficient

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to transfer jurisdiction to the appellate court. See Estate of Conners by Meredith v. O’Connor, 6

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F.3d 656, 658 (9th Cir. 1993) (“[T]ransfer of jurisdiction from the district court to the court of

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appeals is not effected, however, if a litigant files a notice of appeal from an unappealable

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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

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United States District Court
Northern District of California

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interlocutory order or decision and neither a statute nor a district-court certification authorizes an

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interlocutory appeal under the circumstances, the appeal is considered ‘frivolous.’”).

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Accordingly, Plaintiff’s Motion for Transcripts is DENIED without prejudice to renewal in

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the context of any future appeal from an appealable order or judgment of this Court. This ruling is

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based solely on the procedural defect discussed above and not on the substance of Plaintiff’s

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appeal.

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The Court notes that Plaintiff also has filed a Motion for Transcripts in the Court of

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Appeals. See Elofson v. Bivens, Ct. App. Docket 17-15420, ECF 2. This Court’s ruling on the

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present motion is not intended to and does not affect the authority of the Court of Appeals to

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conduct an independent evaluation of the Motion for Transcripts presented to it.

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IT IS SO ORDERED.

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Dated: April 19, 2017
______________________________________
BETH LABSON FREEMAN
United States District Judge

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