Chyatte v. Missoula County et al

Filing 162

ORDER granting 160 Motion for Transcripts. Signed by Magistrate Judge Jeremiah C. Lynch on 2/9/2016. Mailed to Chyatte. (TAG, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FILED
FEB 0 9 2016
Clerk, U.S. District Court
District Of Montana
Missoula

CV 13-174-M-JCL

DOUGLAS JOSEPH CHYATTE,
Plaintiff,
vs.

ORDER

MISSOULA COUNTY, et al.,
Defendants
Pending is Plaintiff Douglas Chyatte's Motion for Transcripts. (Doc. 160.)
Chyatte requests that the transcripts of the trial in this matter be provided at the
government's expense.
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(±); 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 if trial judge certifies "that the appeal is not frivolous and
presents a substantial question"), overruled on other grounds by Heller v.

McKinney, 502 U.S. 903 (1991).
28 U.S.C. § 753(±) allows the court to order the government to pay for
transcripts if "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). 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).
Although Chyatte indicates there are a number of issues he intends to raise
on appeal, the Court only finds that there may be a substantial question regarding
two claims. First, Chyatte indicates he intends to raise a claim regarding whether
the trial court provided an appropriate adverse inference instruction regarding the
use of force. (Brief in Support of Motion for Transcripts, Doc. 161at10-12.)
There may be a substantial question regarding this claim and the transcripts of trial
testimony may be necessary to present an effective appeal on this issue.
Chyatte also seeks to raise an issue regarding whether the Court should have
granted a mistrial after counsel for defendants played what Chyatte characterizes
as a "highly inflammatory, highly prejudicial" audio recording. (Brief in Support
of Motion for Transcripts, Doc. 161at12-7-8.) There may be a substantial
question regarding this claim as well and the transcripts of trial testimony may be
necessary to present an effective appeal on this issue.
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
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transcript of the trial (excluding voir dire) would be needed to decide the above
two issues raised on appeal.
Accordingly, IT IS HEREBY ORDERED that Chyatte's Motion for
Transcripts (Doc. 160) is granted. The transcript ofvoir dire however, is not
necessary to the appeal and need not be produced.
Dated this 9th day ofFebruary, 2016.

iah C. Lynch
ited States Magistrate

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