Arellano v. Blahnik

Filing 217

ORDER Denying Motion for Transcripts, Reconsideration and Copies [Doc. No. 216 ]. Signed by Judge Cathy Ann Bencivengo on 10/19/2021. (All non-registered users served via U.S. Mail Service)(anh)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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RAUL ARRELLANO,

Case No.: 16cv2412-CAB-DHB
Plaintiff,

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v.

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ORDER DENYING MOTION FOR
TRANSCRIPTS,
RECONSIDERATION AND COPIES
[Doc. No. 216]

BLAHNIK,
Defendant.

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On October 4, 2021, this Court held an evidentiary hearing regarding whether

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Plaintiff exhausted his administrative remedies. [Doc. No. 211.] The Court found that

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Plaintiff did not exhaust his administrative remedies and dismissed the case with

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prejudice. [Doc. No. 213.] On October 4, 2021, a Clerk’s Judgment was issued in favor

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of Defendant. [Doc. No. 214.]
On October 15, 2021, Plaintiff filed a “Motion (1) to receive transcripts of the

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evidentiary hearing so I can properly create an effective appeal; (2) I would like to know

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if I can file a motion for rehearing or reconsideration regarding the outcome of

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evidentiary hearing or Fed. R. 60(b), (3) copy of these motion. “ [Doc. No. 216]. For the

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reasons set forth below, all three requests are DENIED.

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16cv2412-CAB-DHB

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1. Transcripts.

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Plaintiff requests a free copy of the transcript of the evidentiary hearing held on

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October 4, 2021. Before a free transcript can be furnished, appeal to the Court of

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Appeals from judgment of the District Court in a civil proceeding must be permitted in

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forma pauperis, and required certification must be made. Maloney v. E.I. DuPont de

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Nemours & Co., 396 F.2d 939, 940 (D.C. Cir. 1967); Franks v. Kirk, No. 1:15-cv-00401-

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EPG (PC), 2019 WL 249518, *1-2 (E.D. Cal. Jan. 17, 2019). To date, Plaintiff has not

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filed a notice of appeal, nor a request to appeal in forma pauperis. Therefore, the request

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for a free transcript is DENIED AS PREMATURE.

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2. Rule 60/Reconsideration.

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While Plaintiff states that he “would like to know if I can file” a motion for

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reconsideration, the Court deems Docket No. 216 to be an actual motion for

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reconsideration under Fed.R. 60(b).

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Rule 60 provides for extraordinary relief and may be invoked only upon a showing

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of “exceptional circumstances.” Engleson v. Burlington N.R. Co., 972 F.2d 1038, 1044

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(9th Cir. 1994). The Rule identifies six permissible grounds for relief from a final

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judgment, order, or proceeding, namely: “(1) mistake, inadvertence, surprise, or excusable

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neglect; (2) newly discovered evidence that, with reasonable diligence, could not have been

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discovered in time to move for a new trial under Rule 59(b); (3) fraud by the adverse party;

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(4) the judgment is void; (5) the judgment has been satisfied; (6) and other reason justifying

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relief.” Fed. R. Civ. P. 60(b). Further, the Rule provides that a motion brought under it

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“must be made within a reasonable time – and for reasons (1), (2), and (3) no more than a

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year after the entry of judgment or order of the date of the proceeding.” Fed. R. Civ. P.

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60(c).

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Here, Plaintiff does not identify which ground for relief he seeks, nor does he state

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a basis for relief under Rule 60(b). Rather, Plaintiff merely describes testimony given

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during the evidentiary hearing (as he remembers it) and then quarrels with the Court’s fact-

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finding decision. The Court has reviewed Docket No. 216 and sees no basis for relief under
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16cv2412-CAB-DHB

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Rule 60(b). Plaintiff is free to appeal this Court’s rulings and findings to the Court of

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Appeals.

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3. Copies.

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Plaintiff requests a copy of Docket No. 216 because he is not sure when he will be

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able to get a copy at the prison law library. While “prisoners have a constitutional right of

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access to the courts,” Bounds v. Smith, 430 U.S. 817, 821 (1977), there is no constitutional

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right to receive photocopies free of charge. Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir.

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1990), overruled on other grounds by Lewis v. Casey, 518 U.S. 343, 351 (1996). The rule

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prohibiting free photocopies is the same for plaintiffs proceeding in forma pauperis. See In

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re Richard, 914 F.2d 1526, 1527 (6th Cir. 1990) (Title 28 U.S.C. section 1915 “waives

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only ‘prepayment of fees and costs and security ...’ [but] does not give the litigant a right

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to have documents copied and returned to him at government expense). Plaintiff has not

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shown he has been denied access to obtaining his own copy and, therefore, his request for

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a copy of Docket No. 216 is DENIED.

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IT IS SO ORDERED.
Dated: October 19, 2021

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16cv2412-CAB-DHB