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Muszynski v. Runnels

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


July 26, 2010

MARK S. MUSZYNSKI, PLAINTIFF,
v.
D.L. RUNNELS, ET AL., DEFENDANTS.

The opinion of the court was delivered by: John A. Mendez United States District Judge

ORDER

A jury trial commenced in this matter on May 11, 2009. On May 12, 2009, outside the presence of the jury, plaintiff pro se moved for dismissal without prejudice of this case and the motion was granted. On March 29, 2010, plaintiff's subsequent motion for reconsideration was denied. On April 9, 2010, plaintiff filed a notice of appeal to the Ninth Circuit. Plaintiff has subsequently filed two requests for a copy of his trial transcripts.

A litigant who has been granted in forma pauperis status may move to have transcripts produced at government expense. See 28 U.S.C. § 753(f); McKinney v. Anderson, 924 F.2d 1500, 1511-12 (9th Cir.1991)(production of transcript at government expense for in forma pauperis appellant in civil case proper if trial judge certifies "that the appeal is not frivolous and presents a substantial question")(overruled on other grounds by Helling v. McKinney, 502 U.S. 903, 112 S. Ct. 291 (1991). Two statutes must be considered whenever the district court receives a request to prepare transcripts at the government's expense. First, 28 U.S.C. § 1915(c) defines the limited circumstances under which the court can direct the government to pay for transcripts for a litigant proceeding in forma pauperis.

(c) Upon the filing of an affidavit in accordance with subsections (a) and (b) and the prepayment of any partial filing fee as may be required under subsection (b), the court may direct payment by the United States of the expenses of (1) printing the record on appeal in any civil or criminal case, if such printing is required by the appellate court.... Such expenses shall be paid when authorized by the Director of the Administrative Office of the United States Courts.

28 U.S.C. § 1915(c).

Second, 28 U.S.C. § 753(f) allows the court to order the government to pay for transcripts only if "the trial judge or a circuit judge certifies that the appeal is not frivolous and the transcript is needed to decide the issue presented by the suit or appeal." 28 U.S.C. § 753(f). A request for a transcript at government expense should not be granted unless the appeal presents a substantial question. Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984). Plaintiff's statement that he needs the trial transcripts of the testimony of High Desert State Prison D.L. Runnels and Captain Briddle to support the merits of his appeal, which merits he does not set forth does not provide a sufficient basis for his need for the transcripts; nor is it enough to simply state that he needs the transcripts generally to quote matters properly in his opening brief. Based on plaintiff's own voluntary request for dismissal of his case, his notice of appeal - - -wherein plaintiff broadly asserts that he is appealing from the judgment of the court in denying his motion for reconsideration - - -and on his insufficiently supported transcript requests, the court finds that the appeal does not present a substantial question and the requests for a transcript at government expense are denied. In addition, plaintiff is notified that the appellate court has access to the court's file in this case, and will request any necessary documents that are in the record directly from this court.

IT IS HEREBY ORDERED that plaintiff's April 19, 2010 (docket # 107) and his June 15, 2010 (docket # 108) requests for a copy of the trial transcripts at government expense are denied.

20100726

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