Perez v. Stephens et al

Filing 27

ORDER denying without prejudice 23 Motion for Transcripts at Government Expense.(Signed by Magistrate Judge Jason B. Libby) Parties notified.(srussell, 2)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ULYSSES A PEREZ,
Plaintiff,
VS.
WILLIAM STEPHENS, et al,
Defendants.

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April 08, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 2:15-CV-409

ORDER DENYING MOTION FOR
TRANSCRIPTS AT GOVERNMENT EXPENSE
Plaintiff-appellant is a Texas inmate appearing pro se in this civil rights action.
Final judgment was entered on February 24, 2016, dismissing plaintiff’s case with
prejudice. (D.E. 18). Plaintiff filed a notice of appeal and has been granted leave to
proceed in forma pauperis on appeal. (D.E. 20, 26). Pending is plaintiff’s motion for
transcripts at government expense. (D.E. 23).

A plaintiff in a civil proceeding may

obtain a transcript at government expense under 28 U.S.C. § 753(f) if: (1) he is permitted
to proceed in forma pauperis; (2) moves for a transcript; and (3) demonstrates the appeal
“is not frivolous (but presents a substantial question).”

To date, plaintiff has not

demonstrated why the transcript is necessary for disposition of his appeal. 28 U.S.C. §
753(f); Norton v. Dimazana, 122 F.3d 286, 293 (5th Cir. 1997)(“[A] party must also
show why the transcripts are necessary for proper disposition of his appeal.”).
Plaintiff’s case was subject to screening pursuant to 28 U.S.C. §§ 1915(e)(2) and
1915A and was dismissed with prejudice as frivolous, failing to state a claim upon which
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relief can be granted and for seeking monetary relief from defendants immune from such
relief. (D.E. 12, 17, 18). The only testimony was the information plaintiff provided
about his case during a telephonic Spears1 hearing on October 21, 2015. Plaintiff was the
only witness and he is familiar with the testimony he provided about his case. The
reasons for the dismissal are set forth in the undersigned Magistrate Judge’s Order of
Dismissal and the District Judge’s

Order Adopting the Memorandum and

Recommendation which have been provided to plaintiff. Plaintiff has not established
why his own testimony is necessary for the disposition of his appeal. Plaintiff has further
failed to establish why his appeal is not frivolous.
Therefore, plaintiff’s Motion for Transcripts at Government Expense (D.E. 23) is
DENIED.
To the extent plaintiff is moving this Court to grant an extension to obtain the
transcripts, that request is DENIED without prejudice.

Any requests or motions for

continuance regarding matters of the appeal should be filed with the Fifth Circuit Court
of Appeals.
ORDERED this 7th day of April, 2016.

___________________________________
Jason B. Libby
United States Magistrate Judge

1

Spears v. McCotter, 766 F.2d 179 (5th Cir. 1985); see also Eason v. Holt, 73 F.3d 600, 603 (5th Cir. 1996)(stating
that testimony given at a Spears hearing is incorporated into the pleadings).

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