UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA
February 15, 2011
FELIX IGBINOSA, ET AL., DEFENDANTS.
The opinion of the court was delivered by: Sheila K. Oberto United States Magistrate Judge
ORDER DENYING MOTIONS
(Docs. 24, 28)
Plaintiff Gregory Jones ("Plaintiff") is a state prisoner proceeding pro se in this civil rights action pursuant to 42 U.S.C. § 1983. On September 22, 2010, Plaintiff filed a motion requesting transcripts of the proceedings in this action at the government's expense for use in his appeal. (Doc. #28.) On September 23, 2010, Plaintiff filed a motion for a certificate of appealability. (Doc. #24.)
The case law cited by Plaintiff in support of his motion for transcripts is not applicable to this action. The authority cited by Plaintiff establishes a right to transcripts for indigent defendants in criminal proceedings. This action is not a criminal proceeding.
"Production of the transcript at government expense for an appellant in forma pauperis in a civil case is proper under 28 U.S.C. § 753 if a trial judge certifies that the appeal is not frivolous and presents a substantial question." McKinney v. Anderson, 924 F.2d 1500, 1511-12 (9th Cir. 1991) overruled on other grounds by Helling v. McKinney, 502 U.S. 903 (1991). The notice of appeal filed by Plaintiff in this Court does not set forth the grounds for his appeal. Accordingly, the Court is unable to certify that the appeal is not frivolous. Plaintiff's request for transcripts will be denied.
Plaintiff may renew his request for a transcript at the government's expense with the appellate court by filing a motion in the appellate court if he wishes to do so. 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.
With respect to Plaintiff's motion requesting a certificate of appealability, Plaintiff is advised that in a civil action, a certificate of appealability is unnecessary. Pursuant to 28 U.S.C. § 2253, certificates of appealability are only needed to appeal final orders in habeas corpus cases. No certificate is needed to appeal this Section 1983 action.
Based on the foregoing, it is HEREBY ORDERED that:
1. Plaintiff's motion requesting transcripts from this action is DENIED; and
2. Plaintiff's motion requesting a certificate of appealability is DENIED.
IT IS SO ORDERED.
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