Heyliger v. Cymbrak et al

Filing 139

DECISION AND ORDER: ORDERED, that plaintiff's request to proceed with the appeal of this matter in forma pauperis (Dkt. No. 138 ) is DENIED as unnecessary because his in forma pauperis status has not been revoked. Plaintiff may proceed on appe al in forma pauperis without further authorization from this Court. ORDERED, that plaintiff's request for free copies of the final pretrial conference and trial transcripts (Dkt. No. 137 ) is GRANTED. ORDERED, that the Court Reporter furnis h copies of the aforementioned transcript to the Clerk of the Court. ORDERED, that a copy of the transcript be paid for by the United States as provided for in 28 U.S.C. § 753(f). Signed by Magistrate Judge Christian F. Hummel on December 20, 2022. {order served via regular mail on plaintiff}(nas) (Additional attachment(s) added on 12/20/2022: # 1 case law cited) (nas, ).

Case 9:17-cv-00912-CFH Document 139 Filed 12/20/22 Page 1 of 6

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

DEREK A. HEYLIGER,
Plaintiff,
v.

9:17-CV-0912
(CFH)

ANDREW CYMBRAK, KYLE GUYNUP,
CHRISTOPHER LAGREE AND WILLIAM PERRY,
Defendants.

APPEARANCES:

OF COUNSEL:

DEREK A. HEYLIGER
Plaintiff, pro se
12-B-0269
Sing Sing Correctional Facility
354 Hunter Street
Ossining, New York 10562
HON. LETITIA JAMES
New York State Attorney General
Attorney for Defendants
The Capitol
Albany, New York 12224

SHANNAN COLLIER KRASNOKUTSKI, ESQ.
WILLIAM A. SCOTT, ESQ.
CHRISTOPHER LIBERATI-CONANT, ESQ.
JONATHAN S. REINER, ESQ.

CHRISTIAN F. HUMMEL
United States Magistrate Judge
DECISION AND ORDER
I.

INTRODUCTION
In August 2017, plaintiff pro se Derek Heyliger ("plaintiff") commenced this civil rights

action. Dkt. No. 1. In a Decision and Order filed on November 15, 2017, the Court granted
plaintiff leave to proceed in forma pauperis ("IFP"), directed the Clerk to effect service of

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Case 9:17-cv-00912-CFH Document 139 Filed 12/20/22 Page 2 of 6

process, and directed the defendants to respond to the claims surviving sua sponte review.
Dkt. No. 7. On October 27, 2021, after a trial, the jury issued a verdict in favor of defendants.
Dkt. No. 128. Judgment was duly entered by the Clerk. Dkt. No. 132.
Plaintiff has appealed to the United States Court of Appeals for the Second Circuit.
Dkt. No.134. Presently before the Court is (1) plaintiff's request to proceed in forma pauperis
on appeal (Dkt. No. 138), and (2) plaintiff's motion authorizing the Clerk to “retain” the record
on appeal (Dkt. No. 137).
II.

IFP STATUS
Rule 24(a)(3) of the Federal Rules of Appellate Procedure provides, in relevant part:
Prior Approval. A party who was permitted to proceed in forma
pauperis in the district-court action . . . 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).
Plaintiff's motion for leave to proceed in forma pauperis was previously granted, see
Dkt. No. 7, and the Court has not revoked that status. Therefore, plaintiff may proceed with
his appeal to the Second Circuit in forma pauperis without further authorization from this
Court.
III.

MOTION TO TEMPORARILY RETAIN RECORD
Pursuant to Fed. R. App. P. 11(c), a district court may order that the clerk retain the

record temporarily for the parties to use in preparing the papers on appeal. On November

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30, 2022, plaintiff filed a motion to temporarily retain the appeal record in the district court to
allow plaintiff "an opportunity to study the transcripts and develop his issues for appeal and
defendants refused to so stipulate[.]" 1 Dkt. No. 137. Plaintiff advises that he intends to
challenge the Court's jury instructions and pretrial evidentiary rulings. Id. at 1. Plaintiff seeks
to have the record retained, "until the Second Circuit provides a date when Appellant is
required to serve it’s [sic] brief upon Defendants-Appellees[.]" Id. at 3. However, plaintiff
served his brief and appendix on defendants on June 29, 2022. See Heyliger v. Cymbrak,
No. 21-2825, Dkt. No. 49 (2d Cir. filed June 29, 2022); see also Dkt. No. 60-2 at 6. T hus,
plaintiff's request for relief is moot.
In light of plaintiff's pro se status, and upon examination of the exhibits annexed to the
motion, see Dkt. No. 137-1, the Court has reviewed the Second Circuit's Docket Report to
determine whether plaintiff's motion set forth any other basis for relief.
On July 18, 2022, defendants filed a motion to dismiss plaintiff's appeal for failure to
provide transcripts. See Heyliger, Dkt. No. 60 (2d Cir. July 18, 2022). In the motion,
defendants assert that plaintiff served his brief and appendix but that no "record" was served
or filed with the Court. Id., Dkt. No. 60-2 at 6. Moreover, defendants contend that, although
plaintiff certified that he made arrangements with the Court report to obtain the trial transcript,
the court reporter advised, "nobody has written her to order a transcript, arranged payment,
or informed her that transcript fees were waived." Id. at 5. As a result, defendants claim they
are unable to respond to plaintiff's challenges to evidentiary rulings and jury instructions. Id.

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In a letter to plaintiff, dated November 16, 2022, defendants' counsel responded to plaintiff's request
"for a stipulation that the transcripts should be temporarily retained in the district court[.]" Dkt. No. 137-1 at 6.
Defendants' counsel advised, "[t]he Second Circuit has provided you with specific directions on how to proceed
regarding the transcript. Those directions do not include any type of stipulation with or by the defendants." Id.

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at 6.
In a Decision and Order filed on October 27, 2022, the Second Circuit addressed the
motion and noted, "[i]t is the Appellant’s duty to 'order from the reporter a transcript of such
parts of the proceedings not already on file as the appellant considers necessary or file a
certificate stating that no transcript will be ordered.'" See Heyliger, Dkt. No. 74 (2d Cir. Oct.
27, 2022) (citing FED. R. APP. P. 10(b)(1)(A), (B); see also FED. R. APP. P. 10(b)(2)). The
Circuit instructed plaintiff that, "[i]f [he] seeks free transcripts, he must first move in the district
court within 30 days of this order and demonstrate financial need and that his appeal is 'not
frivolous (but presents a substantial question).'" Id. (citing 28 U.S.C. § 753(f)).
In light of the procedural history and, affording plaintiff the special solicitude granted to
pro se litigants, the Court will consider plaintiff's request as a motion, pursuant to 28 U.S.C. §
753(f), for a free copy of the trial transcript.
A litigant proceeding IFP under 28 U.S.C. § 1915 does not have a right to free trial
transcripts. See Ortiz v. Brymer, No. Civ. 302CV1369HBF, 2005 W L 2671084, at *1 (D.
Conn. Oct. 19, 2005). 2 Pursuant to 28 U.S.C. § 753(f) ("Section 753(f)"), "[f]ees for
transcripts furnished in [non-habeas civil] proceedings to persons permitted to appeal in
forma pauperis shall [ ] 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)." 28 U.S.C. §
753(f). "Courts have defined a substantial question for the purposes of Section 753(f), as a
question that is 'reasonably debatable when judged on an objective basis.'" Eldaghar v. City
of New York Dep't of Citywide Admin. Servs., No. 02 CIV. 9151, 2009 W L 1730977, at *1

2

Copies of unpublished decisions cited within this Decision & Order have been provided to plaintiff.

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(S.D.N.Y. June 18, 2009) (citations omitted).
"When considering whether to furnish an appellant in forma pauperis with a free copy
of a trial transcript, courts also take into account whether a transcript is necessary to the
appeal, and the cost to the Court of providing the requested transcript." Eldaghar, 2009 WL
1730977, at *1 (citing) (citing inter alia Harlem River Consumers Coop. v. Associated Grocers
of Harlem, Inc., 71 F.R.D. 93, 98 (S.D.N.Y. 1976) (finding that the plaintiff had not adequately
established that the Court should pay $25,000 to furnish the plaintiff with transcripts from a
lengthy trial).
Construed liberally, the motion seeks a free copy of the transcript from the final pretrial
conference held on October 22, 2021, and a f ree transcript of the entire trial, which was less
than three full days in length. Upon review of plaintiff's submission, the Court finds that
plaintiff's appeal is not frivolous and that he presents a "substantial question" on appeal.
Moreover, the Court has taken into consideration plaintif f's need for the transcript for his
appeal and the fact that the cost of providing the transcript is not substantial. See McCarthy
v. Bronson, 906 F.2d 835, 841 (2d Cir. 1990) (granting request for free transcript for a threeday trial) (citation omitted); see also Eldaghar, 2009 WL 1730977, at *2 (same).
Considering all of these facts, the Court finds that plaintiff is entitled to a copy of the
final pretrial conference transcript and trial transcripts without cost.
IV.

CONCLUSION
WHEREFORE, it is hereby
ORDERED, that plaintiff's request to proceed with the appeal of this matter in forma

pauperis (Dkt. No. 138) is DENIED as unnecessary because his in forma pauperis status

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has not been revoked. Plaintiff may proceed on appeal in forma pauperis without
further authorization from this Court; and it is further
ORDERED, that plaintiff's request for free copies of the final pretrial conference and
trial transcripts (Dkt. No. 137) is GRANTED; and it is further
ORDERED, that the Court Reporter furnish copies of the aforementioned transcript to
the Clerk of the Court; and it is further
ORDERED, that a copy of the transcript be paid for by the United States as provided
for in 28 U.S.C. § 753(f); and it is further
ORDERED, that the Clerk of the Court serve a copy of this Order on the parties.
IT IS SO ORDERED.
Dated: December 20, 2022
Albany, New York

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