Jabary v. City of Allen

Filing 278

MEMORANDUM OPINION AND ORDER - The Court finds the Motion to Permit Pauperis Service and Transcripts 275 should be granted in part and denied in part. Signed by District Judge Amos L. Mazzant, III on 10/31/2017. (baf, )

United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

MIKE JABARY
v.
BRET MCCULLOUGH

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Civil Action No. 4:10-CV-00711
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Before the Court is Mike Jabary’s (“Jabary”) Motion to Permit Pauperis Service and
Transcripts (Dkt. 275). After reviewing the relevant pleadings and motion, the Court finds the
motion should be granted in part and denied in part.
BACKGROUND
On December 28, 2010, Jabary, proceeding pro se, filed a complaint against the City of
Allen (Dkt. #1). On the same day, Jabary filed a motion to proceed in forma pauperis (Dkt. #3).
On January 19, 2011, the Court issued an order granting Jabary’s motion to proceed in forma
pauperis (Dkt. #7). After retaining counsel, Jabary filed his First Amended Complaint on May 13,
2011 (Dkt. #9). Jabary filed his Second Amended Complain adding Bret McCullough as a
defendant on August 24, 2011 (Dkt. #37). Thereafter, Jabary and the defendant extensively
litigated this matter before district and appellate courts over several years. On October 27, 2017,
Jabary filed a Motion to Permit Pauperis Service and Transcripts (Dkt. #275).
ANALYSIS
Jabary asks the Court to expand his in forma pauperis relief to include service and
transcripts of hearings before the Court (Dkt. #275). On October 27, 2017, Defendant filed his
Response to Jabary’s Motion to Permit Pauperis Service and Transcription (Dkt. #276).

The “expenditure of public funds [on behalf of an indigent litigant] is proper only when
authorized by Congress.” Pedraza v. Jones, 71 F.3d 194, 196 (5th. Cir. 1995) quoting United
States v. MacCollum, 426 U.S. 317, 321 (1976). Congress has statutorily authorized public funds
for in forma pauperis litigants. See id; see also 28 U.S.C. § 1915.
Section 1915 explicitly permits a court to provide service for an indigent litigant:
The officers of the court shall issue and serve all process, and perform all duties in
such cases. Witnesses shall attend as in other cases, and the same remedies shall be
available
as
are
provided
for
by
law
in
other
cases.
28 U.S.C. § 1915.
In turn, the Court expands in forma pauperis relief to cover service. Further, section 1915
explicitly permits a court to provide printing and transcription aid under the following
circumstances:
(1) printing the record on appeal in any civil or criminal case, if such printing is
required by the appellate court; (2) preparing a transcript of proceedings before a
United States magistrate judge in any civil or criminal case, if such transcript is
required by the district court, in the case of proceedings conducted under section
636(b) of this title or under section 3401(b) of title 18, United States Code; and (3)
printing the record on appeal if such printing is required by the appellate court, in
the case of proceedings conducted pursuant to section 636(c) of this title.
28 U.S.C. § 1915. Given the limited grounds on which a court may provide printing and
transcription services, courts across the nation have deemed that a litigant proceeding in forma
pauperis is not entitled to such aid.1
Here, Jabary asks for the transcript of the last hearing because it is “important to address
discovery matters in this case, and will provide information on how to continue or appeal if

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See Tabron v. Grace, 6 F.3d 147, 158–59 (3d Cir. 1993) (“There is no provision in the statute for the payment by
the government of the costs of deposition transcripts, or any other litigation expenses, and no other statute authorizes
courts to commit federal monies for payment of the necessary expenses in a civil suit brought by an indigent litigant.”);
see also Burns v. Gray, 106 F.3d 413 (10th Cir. 1997) (There is no statutory requirement that the government provide
a litigant proceeding in forma pauperis with a copy of his deposition transcript.); Windsor v. Martindale, 175 F.R.D.
665, 672 (D. Colo. 1997) (“Plaintiff is not entitled to a copy of any document without payment of an appropriate copy
cost, if required.”).

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necessary.” (Dkt #275 at p. 2). This does not meet the criteria in section 1915. See 28 U.S.C. §
1915. Thus, the Court will not expand Jabary’s in forma pauperis relief to cover transcriptions of
the latest hearing.
CONCLUSION
It is hereby ORDERED that Plaintiff's Motion to Permit Pauperis Service and Transcripts

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is GRANTED as to the request for service of discovery and trial subpoenas. Plaintiff's Counsel
shall prepare the subpoenas and USM-285s (see www.txed.uscourts.gov) as soon as possible to
ensure time for service. Counsel may contact the U.S. Marshal, [phone] concerning
service. The United States Marshal shall serve at no cost to Plaintiff.

SIGNED this 31st day of October, 2017.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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