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McNeal v. Fleming

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA


May 4, 2009

VERNON WAYNE MCNEAL, PLAINTIFF,
v.
FLEMING, ET AL., DEFENDANTS.

The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge

ORDER

Plaintiff Vernon Wayne McNeal is a state prisoner proceeding pro se in the prosecution of an excessive force claim. On October 7, 2008, after Plaintiff presented his evidence to a jury, the Court granted Defendants' Motion for Judgment as a Matter of Law pursuant to Federal Rule of Civil Procedure 50(a). Judgment was entered in favor of Defendants, and Plaintiff filed a notice of appeal on October 15, 2008.

Plaintiff subsequently requested production of his jury trial transcripts at government expense for use in his appeal to the Ninth Circuit. Production of transcripts at government expense for an appellant proceeding in forma pauperis in a civil case is proper if a judge certifies that the appeal is not frivolous and presents a substantial question. 28 U.S.C. § 753(f).

Because this Court determined at trial that Plaintiff wholly failed to meet his burden and that Defendants were entitled to judgment as a matter of law, the Court now refuses to so certify the instant appeal. Accordingly, Plaintiff's request for transcripts to be provided at government expense is now DENIED. The Clerk of the Court is directed to serve a copy of this Order on the United States Court of Appeals for the Ninth Circuit.

IT IS SO ORDERED.

20090504

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