ALBERT v. MURTIFF et al

Filing 106

ORDER granting 105 Motion for Transcript. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
MICHAEL J. ALBERT, SR.,
Plaintiff
v.
BENJAMIN J. MURTIFF, et al.,
Defendants

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1:14-cv-00440-JCN

ORDER ON PLAINTIFF’S MOTION FOR TRANSCRIPT1
On September 20, 2016, Plaintiff filed a notice of appeal from the judgment entered against
him following a jury trial. (ECF No. 94.) The matter is before the Court on Plaintiff’s motion for
a transcript of the trial at government expense. (ECF No. 105.)
Plaintiff’s request is governed by 28 U.S.C. § 753(f), which provides in relevant part:
Fees for transcripts furnished in other proceedings [such as civil rights
proceedings] to persons permitted to appeal in forma pauperis shall also be paid
by the United States if the trial judge or a circuit judge certifies that the appeal
is not frivolous (but presents a substantial question).
See Barcelo v. Brown, 655 F.2d 458, 462 (1st Cir. 1981) (statute provides for government payment
of transcript on appeal only “if trial judge or circuit judge certifies that the appeal is not frivolous
(but presents a substantial question)” (quoting 28 U.S.C. § 753(f)).
In his notice of appeal, Plaintiff describes in some detail the circumstances underlying his
claim. Plaintiff in part appears to contend that the weight of the evidence does not support the
jury’s verdict. Plaintiff’s weight of the evidence argument would not support an order authorizing
the preparation of the transcript at government expense.

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Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge John C. Nivison
conduct all proceedings in this case, including trial, and to order entry of judgment.

Plaintiff, however, also maintains that newly discovered evidence, i.e., the testimony of a
witness to the events that are the subject of Plaintiff’s complaint, requires a new trial. Plaintiff
raised the newly-discovered evidence in his motion for new trial (ECF No. 88), which motion the
Court denied. (ECF No. 91.) To establish he is entitled to a new trial based on newly discovered
evidence, Plaintiff must demonstrate that (1) the evidence was discovered after the trial; (2) the
evidence could not by due diligence have been discovered earlier; (3) the evidence is not merely
cumulative or impeaching; and (4) the evidence would probably change the result if a new trial
were held. Acosta-Mestre v. Hilton Int’l of Puerto Rico, Inc., 156 F.3d 49, 56 (1st Cir. 1998).
When the Court denied Plaintiff’s motion for new trial, the Court wrote:
Plaintiff was clearly aware before trial that Mr. Harris [the witness] was present during
the arrest, and could potentially have relevant information. In this way, his testimony
does not constitute evidence discovered after trial. Even if the Court considers the
testimony to be evidence that was discovered after trial, the Court is not convinced
that the evidence could not have been discovered earlier. The record lacks any
evidence to suggest that Mr. Harris was unavailable during the nearly four years
between the incident and trial. Indeed, the fact that Plaintiff located Mr. Harris shortly
after the trial suggests Mr. Harris was available and could have been found before trial.
In addition, although Mr. Harris’s proffered testimony might have supported
Plaintiff’s version of the incident, the Court is not persuaded based on the evidence at
trial that Mr. Harris’s testimony would change the result of the trial. Plaintiff,
therefore, has not demonstrated that he is entitled to a new trial.
(Memorandum of Decision at 4, ECF No. 91.) Upon review of Plaintiff’s notice of appeal
and motion for transcript, the Court remains convinced that its analysis of Plaintiff’s motion
for new trial is sound. Nevertheless, the Court recognizes that in the event the appellate
court concluded that the testimony of the witness could possibly be considered newlydiscovered evidence, without the transcript, Plaintiff would be foreclosed from a realistic
attempt to convince the appellate court that the testimony of the witness probably would
have produced a different result at trial. Under the circumstances, because Plaintiff maintain
that the witness was not presented at trial because Plaintiff could not locate him prior to trial,
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the Court will authorize the production of the transcript in connection with Plaintiff’s appeal.
The Court thus grants Plaintiff’s motion for transcript.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 28th day of November, 2016.

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