Pearson v. Pausha

Filing 94

ORDER. The Court finds that Mr. Pearson's Notice of Appeal is not frivolous, he should be allowed to continue in forma pauperis on appeal, and the 92 request to obtain transcripts at government expense is granted. Signed by Judge Donald W. Molloy on 11/29/2011. Mailed to Pearson. (TAG, )

FILED
IN THE UNITED STATES DISTRICT COURT NOV 2 9 2011
FOR THE DISTRICT OF MONTANA

PATRICK E. DUFFY CLERK

By

•
DEPUTY CLERK, MISSOULA

HELENA DIVISION
OLIVER EMANUEL PEARSON,

Cause No. CV lO-00035-H-DWM

Plaintiff,
ORDER

vs.
LARRY PASHA,
Defendant.
Pending is Plaintiff Oliver Pearson's Request for transcripts at the
government's expense and for a certification that any appeal would not be
frivolous.
The Court sees two issues at bar. First, the Federal Rules of Appellate
Procedure provide as follows:
A party who was permitted to proceed in forma pauperis in the
district-court action, or who was determined to be financially unable
to obtain an adequate defense in a criminal case, may proceed on
appeal in forma pauperis without further authorization, unless:
(A) the district court-before or after the notice of appeal is
filed-certifies that the appeal is not taken in good faith or finds
that the party is not otherwise entitled to proceed in forma
pauperis and states in writing its reasons for the certification or
finding;
Fed.R.App.P.24(a)(3)(A).

Analogously, 28 U.S.C. § 1915(a)(3) provides "[a]n appeal may not be
taken in forma pauperis if the trial court certifies in writing that it is not taken in
good faith." The good faith standard is an objective one. See Coppedge v. United
States, 369 U.S. 438, 445 (1962). A plaintiff satisfies the "good faith" requirement
if he or she seeks review of any issue that is "not frivolous." Gardner v. Pogue,
558 F.2d 548, 551 (9th Cir. 1977) (quoting Coppedge, 369 U.S. at 445). For
purposes of section 1915, an appeal is frivolous if it lacks any arguable basis in
law or fact. Neitzke v. Williams, 490 U.S. 319, 325, 327 (1989); Franklin v:­
Murphy, 745 F.2d 1221, 1225 (9th Cir. 1984).
Secondly, a litigant who has been granted leave to proceed in forma
pauperis on appeal may move to have transcripts produced at government expense.
28 U.S.C. § 753(f); McKinney v. Anderson, 924 F.2d 1500, 1511-12 (9th Cir.
1991) (production of transcript at government expense for in forma pauperis
appellant in civil case proper iftrial judge certifies "that the appeal is not frivolous
and presents a substantial question"), overruled on other grounds by Heller y.
McKinney, 502 U.S. 903, 112 S.Ct. 291, 116 L.Ed.2d 236 (1991).
28 U.S.C. § 753(f) allows the court to order the government to pay for
transcripts if "the trial judge or a circuit judge certifies that the appeal is not
frivolous and the transcript is needed to decide the issue presented by the suit or
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appeal." 28 U.S.C. § 753(f). A request for a transcript at government expense
should not be granted unless the appeal presents a "substantial question."
Henderson v. United States, 734 F.2d 483,484 (9th Cir.1984).
Given the issues raised at trial and the factual disputes at issue, the Court
cannot say that an appeal would not be taken in good faith and it appears the
transcript would be needed to decide any issue raised on appeal.
Accordingly, IT IS HEREBY ORDERED THAT the Court finds that Mr.
Pearson's Notice of Appeal is not frivolous, he should be allowed to continue in
forma pauperis on appeal, and the request to obtain transcripts at government
expense is granted.
Dated this

_~.hfaY ofNovember, 2011.

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