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United States v. Peterson

United States District Court, E.D. California

September 23, 2019

UNITED STATES OF AMERICA, Plaintiff,
v.
KYLE PETERSEN, Defendant.

          ORDER GRANTING IN PART AND DENYING IN PART REQUEST FOR TRANSCRIPTS AND ORDERS (ECF NO. 76)

          LAWRENCE J. O’NEILL UNITED STATES CHIEF DISTRICT JUDGE

         Before the Court is defendant Kyle Petersen’s (“Defendant”) Request for Court Transcripts and Court Orders (“Motion”), filed August 29, 2019, requesting a copy of transcripts in his case from January 7, 2019; March 18, 2019; March 20, 2019; and July 15, 2019, as well as court orders entered on January 24, 2019; March 18, 2019; and July 15, 2019. Defendant seeks these materials in relation to a pending Bivens[1] action he has filed, No. 1:19-cv-00138-DAD-EPG. On February 19, 2019, Defendant was granted permission to proceed in forma pauperis in the civil matter. See ECF No. 5, 1:19-cv-00138-DAD-EPG. For the following reasons, Petitioner’s Motion is GRANTED IN PART and DENIED IN PART.

         I. LEGAL STANDARD AND ANALYSIS

         A litigant who has been granted in forma pauperis status may move to have transcripts produced at government expense. 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; (2) preparing a transcript of proceedings before a United States magistrate judge in any civil or criminal case, if such transcript is required by the district court, in the case of proceedings conducted under section 636(b) of this title or under section 3401(b) of title 18, United States Code; and (3) printing the record on appeal if such printing is required by the appellate court, in the case of proceedings conducted pursuant to section 636(c) of this title. 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). None of these circumstances apply here.

         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 suit or appeal is not frivolous and that the transcript is needed to decide the issue presented by the suit or appeal.” A request for a transcript at government expense should not be granted unless “the appeal presents a substantial issue.” Henderson v. United States, 734 F.2d 483, 484 (9th Cir. 1984). The same is no less true of a suit, rather than an appeal.

         Here, Defendant asserts in his civil suit that federal agents violated his Fourth Amendment rights when the agents searched Defendant’s cell phones without first securing a warrant. ECF No. 1 at 3, 1:19-cv-00138-DAD-EPG. As it relates to the content of the transcripts, the Court notes that Defendant did not stand trial in his criminal case. Instead, Defendant pled guilty after the Court granted in part and denied in part his two motions to suppress evidence related to the cell phone searches.[2] ECF Nos. 24, 35, 38, 46, 50. The motion to suppress relevant here-Defendant’s first motion-was decided on papers submitted by counsel; no hearing was conducted. ECF Nos. 24, 33, 34, 35.[3] Part of the substance of Defendant’s first motion to suppress now serves as the gravamen of his civil suit.

         Relevant to the second prong of 28 U.S.C. § 753(f), the above history of Defendant’s first motion to suppress makes clear that the transcripts from the dates requested by Defendant are not necessary to decide the issue presented by Defendant’s civil suit. No. witnesses were called in the first motion, and no testimony was taken. ECF Nos. 7, 34, 35. Of the transcripts requested for January 7, 2019; March 18, 2019; March 20, 2019; and July 15, 2019, only the January transcript is related in any way to Defendant’s first motion to suppress; however, that January court date ultimately resulted in a continuance of the hearing that had been scheduled (and which ultimately was cancelled). ECF Nos. 31, 46, 51, 66.[4] The other transcripts requested by Defendant relate to his second motion to suppress, his change of plea hearing, and his sentencing. Because the transcripts requested by Defendant are facially unrelated to Defendant’s present civil suit and Defendant has not suggested why relevant (let alone “necessary”) information might be contained therein, his request for transcripts is DENIED.

         Defendant also requests copies of court orders dated January 24, 2019; March 18, 2019; and July 15, 2019. The January 24, 2019, orders, ECF Nos. 34 and 35, the latter of which is an amended version of the former, relate to Defendant’s suit and substantiate Defendant’s contention in his suit that evidence searched by federal agents was suppressed. “[T]he Clerk does not ordinarily provide free copies of case documents to parties” and “charges $.50 per page for copies of documents.” Marsh v. Vegianelli, No. 1:09-cv-01243-GSA-PC, 2012 WL 5505079, at *2 (E.D. Cal. Nov. 13, 2012) (citing see 28 U.S.C. § 1914(a)). However, given that both of the Court orders entered on January 24, 2019, are text-only minute orders, the burden is minimal. So, as a courtesy, this request is GRANTED.

         Defendant’s request for court orders entered on March 18, 2019, and July 15, 2019, is DENIED. These are procedural minute orders that do not pertain directly to Defendant’s civil suit. Of course, Defendant is welcome to request copies of any public document on his docket at regular clerk’s office rates.

         II. CONCLUSION AND ORDER

         For the foregoing reasons, IT IS ...


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