Cole v. Risperdal Manufacturer

Filing 210

ORDER signed by Chief Judge William C Griesbach on 2/21/2018 denying 207 Motion to Supplement the record on appeal and denying 208 Motion for Order allowing use of his release account to purchase transcripts. (cc: all counsel via CM/ECF, Reginald S Cole, Jr via U.S. Mail) (Griesbach, William)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN

REGINALD S. COLE, JR.,
Plaintiff,
v.

Case No. 15-C-57

JANSSEN PHARMACEUTICALS INC.,
Defendant.

ORDER

On December 12, 2017, the court issued an order granting the defendant’s motion for
summary judgment and dismissed this action. Plaintiff Reginald S. Cole, Jr., filed a notice of appeal
on January 10, 2018. Plaintiff has now filed a motion to supplement or correct the record. He
wishes to supplement the record on appeal to include a portion of a letter he claims shows he in fact
did have an expert witness. The letter is apparently from the law firm Johnson Becker, PLLC, that
Cole contacted. The closing paragraph, which is all Cole has submitted, invites him to contact the
attorney’s legal assistant if he has any questions. In his motion, Cole claims that the legal assistant
is his expert witness. A legal assistant to an attorney, of course, cannot serve as an expert witness
in a product liability case against a pharmaceutical company. In any event, the letter was not
previously docketed in this case, and the Federal Rules of Appellate Procedure limit the record on
appeal to the “original papers and exhibits filed in the district court.” Fed. R. App. P. 10(a).
Therefore, the court cannot permit Plaintiff to add documents to the record that were not before the
trial court.

Plaintiff also filed a motion to use his release account for transcripts. An inmate’s release
account is maintained for the benefit of the inmate so he has funds to assist his transition to the
community upon his release from prison. To allow inmates to invade their release account for other
purposes would defeat the purpose of having such an account. This does not mean, however, that
an indigent inmate cannot obtain a transcript of lower court proceedings needed for his appeal.
Section 1915(c) of Title 28 authorizes the court to order “printing the record on appeal in any civil
or criminal case, if such printing is required by the appellate court.” 28 U.S.C. § 1915(c); see also
28 U.S.C. § 753(f) (“Fees for transcripts furnished in other proceedings to persons permitted to
appeal in forma pauperis shall also 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).”).
Because there was no trial or evidentiary hearing in the case, it is not clear why Plaintiff
believes a transcript is needed. Although the previously assigned judge held a number of telephone
conferences in the case, I did not have any hearing, telephone or otherwise, after the case was
reassigned to me. The defendant’s motion for summary judgment was granted on the ground that
there was no genuine dispute as to any material fact and the defendant was entitled to judgment as
a matter of law.
Based on the foregoing, Plaintiff’s motion for an order requiring payment for transcript out
of his release account is denied. If Plaintiff believes a transcript of one or more of the telephone
conferences held by Judge Clevert are needed for his appeal, he should identify the hearing, explain
why a transcript is needed, and make a specific request that a transcript be prepared. His motion to
access his release account so he can pay is denied.

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IT IS THEREFORE ORDERED that Plaintiff’s motion to supplement or correct the
record (ECF No. 207) is DENIED.
IT IS FURTHER ORDERED that Plaintiff’s motion to use his release account to purchase
transcripts (ECF No. 208) is DENIED.
Dated this 21st day of February, 2018.
s/ William C. Griesbach
William C. Griesbach, Chief Judge
United States District Court

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