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Washington v. Fannon

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


December 10, 2009

JESSE WASHINGTON, PLAINTIFF,
v.
J. FANNON, ET AL., DEFENDANTS.

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

ORDER

Plaintiff is a state prisoner proceeding pro se and in forma pauperis with a civil rights action pursuant to 42 U.S.C. § 1983. On October 1, 2009, judgment was entered in favor of defendants following a jury verdict. On November 9, 2009, plaintiff filed a notice of appeal and a request for extension of time to file a notice of appeal. Plaintiff alleges that he could not file a timely notice of appeal due to recent transfers and because he could not get to the law library because the prison was on lockdown.

Plaintiff has shown good cause for his failure to file a timely notice of appeal. Fed. R. App. P. 4(a)(5). Accordingly, the notice of appeal is deemed timely filed.

On December 3, 2009, plaintiff filed a motion for the government to pay the fee for transcripts on appeal. 28 U.S.C. § 753(f) provides, among other things, that "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)." Plaintiff's appeal does not present a substantial question. For that reason, the motion for the government to pay the transcript fees is denied.

Accordingly, IT IS HEREBY ORDERED that:

1. Plaintiff's November 9, 2009, motion for leave to file a late notice of appeal (no. 309) is granted; the notice of appeal is deemed timely filed;

2. Plaintiff's December 3, 2009, motion for the government to pay the transcript fees (no. 313) is denied.

20091210

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