McCoy (ID 76894) v. Meyers et al

Filing 248

MEMORANDUM AND ORDER denying 246 Motion for Transcripts of Trial. Signed by District Judge Carlos Murguia on 12/10/2019.Mailed to pro se party Deron McCoy by regular mail. (ydm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

DERON MCCOY JR.,
Plaintiff,
v.
TYSON MEYERS, et al.,
Defendants.

)
)
)
)
)
)
)
)
)
)

Case No. 12-03160-CM-GLR

MEMORANDUM AND ORDER
This matter is before the court on plaintiff’s Motion for Transcripts of Trial. (Doc. 246.)
I.

BACKGROUND

On May 24, 2019, pursuant to jury verdict, the court entered judgment in favor of defendants
and against plaintiff on his claims for excessive force in violation of his constitutional rights. (Doc.
236.) Plaintiff moved for a new trial, arguing that the court erred by allowing admission of his prior
felony convictions for impeachment, and that the jury’s verdict was against the weight of the evidence.
(Doc. 237.) The court denied the motion, noting that defendants’ use of plaintiff’s prior convictions
for impeachment purposes was consistent with Rule 609 of the Federal Rules of Evidence, and that the
jury’s verdict was not clearly, decidedly, or overwhelmingly against the weight of the evidence. (Doc.
239.)
Plaintiff, proceeding in forma pauperis in this action and pro se on appeal, requests transcripts
of his trial to aid his appellate briefing.
II.

LEGAL STANDARDS

A trial transcript may be provided at government expense to “persons permitted to appeal in
forma pauperis . . . if the trial judge or a circuit judge certifies that the appeal is not frivolous (but

-1-

presents a substantial question).” 28 U.S.C. § 753(f). Thus, a civil litigant may proceed in forma
pauperis on appeal, but be denied a free transcript when their appeal does not present a substantial
question. See Wright v. City of St. Francis, 166 F. App’x 343, 345–47 (10th Cir. 2006) (citing Jaffe v.
United States, 246 F.2d 760, 762 (2d Cir. 1957)). A non-frivolous appeal presents a “substantial
question” when the issue on appeal, judged on an objective basis, is a question which is reasonably
debatable. See Linden v. Harper & Row Inc., 467 F. Supp. 556, 558 (S.D.N.Y. 1979).
III.

DISCUSSION

Plaintiff’s motion raises two potential questions on appeal: (1) the use of his prior convictions
for impeachment by defendants, and (2) a non-specific desire to evaluate the court’s trial rulings.
(Doc. 246, at 2.)
Rule 609 allows impeachment of a witness’s credibility by evidence of a felony conviction
fewer than 10 years old, subject to Rule 403 balancing. Fed. R. Evid. 609(a)(1). Plaintiff was
convicted of several felonies based on his actions surrounding the events of this case, including
solicitation to commit perjury. His own testimony was the only evidence offered in support of his
claims, and defendants used plaintiff’s prior convictions—based on the same events to which plaintiff
testified—to show that his testimony was not credible. Plaintiff’s testimony often disputed the
underlying facts and circumstances of his convictions; it was not unfairly prejudicial or cumulative to
allow defendants to impeach plaintiff by using those convictions to suggest that his narrative of events
was not credible. For example, when plaintiff testified that he never told Ms. Kanisha Spencer that she
was not allowed to leave his hotel room, defendants impeached his credibility by using his conviction
for the kidnapping of Ms. Spencer based on the same events of that day.
The court is not persuaded that this ordinary impeachment use raises a substantial question on
appeal. Although plaintiff does not further identify any specific ruling he seeks to appeal, the court has

-2-

carefully reviewed its decisions in this case and further finds that plaintiff does not present a
substantial question for appeal based on the court’s other rulings. Because plaintiff does not present a
substantial question for appeal, the court denies his motion. While plaintiff may purchase a transcript
of his trial, he is not entitled to have one provided at government expense.
IT IS THEREFORE ORDERED that plaintiff’s Motion for Transcripts of Trial (Doc. 246) is
denied.
Dated this 10th day of December, 2019, at Kansas City, Kansas.

s/ Carlos Murguia
CARLOS MURGUIA
United States District Judge

-3-