United States District Court, E.D. Louisiana
ORDER AND REASONS
L. C. FELDMAN UNITED STATES DISTRICT JUDGE.
the Court are two motions by Gary Daniel Rodgers: (1) motion
for transcripts at the Court's expense; and (2) motion
for extension of time for production of documents to properly
file an appeal. For the reasons that follow, the motions are
Daniel Rodgers is an inmate at Angola. Proceeding
pro se and in forma pauperis, Rodgers sued
Jefferson Parish Sheriff Newell Normand, Roney McIntyre, Jr.,
Jairus Boudoin, and former Jefferson Parish Sheriff's
Deputy Jamal Perrier pursuant to 42 U.S.C. § 1983; he
alleged that when he was incarcerated at Jefferson Parish
Correctional Center as a pretrial detainee on December 11,
2014, Perrier (then-a sheriff's deputy) failed to protect
the plaintiff from the use of excessive force by other
deputies. After settling his claim against one defendant and
after his claims against others were dismissed without
prejudice, Perrier was the only remaining
Judge Wilkinson conducted a trial and evidentiary hearing on
November 29, 2016 in which the plaintiff, pro se,
participated by video. Magistrate Judge Wilkinson found that
Perrier cannot be liable for any deliberate indifferent
failure to protect Rodgers or bystander liability. Finding
that Perrier acted reasonably under the circumstances that
justified his reasonable failure to intervene physically in
the rapid and unforeseen attack on Rodgers such that Rodgers
has not proved his failure to protect claim, Magistrate Judge
Wilkinson recommended that Rodger's claim against Perrier
be dismissed with prejudice and that judgment be entered in
favor of the defendant. Over Rodger's objections, the
Court adopted the magistrate judge's findings and
recommendations and issued a judgment in favor of the
defendants (dismissing Rodgers's claims against the
Sheriff and against Perrier with prejudice and dismissing his
claims against McIntyre and Boudoin without prejudice).
Rodgers then filed a motion to release evidence, which the
Court granted in part (insofar as he requested the exhibits
in the Clerk's Office custody) and denied in part
(insofar as he requested free copies of transcripts).
second time, Rodgers requests copies of his trial transcripts
at the government's expense, this time invoking a Fifth
Circuit rule; he also seeks additional time to prepare and
file his appeal.
seeks copies of transcripts at the government's expense
and also appears to request additional time to prepare and
lodge his appeal after he receives the documents he seeks. In
support of his request for transcripts at the
government's expense, he cites a rule applicable in the
Fifth Circuit Court of Appeals, Fifth Circuit Rule 27.1,
which allows the Fifth Circuit Clerk of Court to rule on
certain motions. Insofar as he seeks an extension of time
for production of documents, Rodgers offers no authority that
might support his request that this Court extend the Fifth
Circuit's deadlines for filing appeals. Both requests
must be denied.
right to a free transcript in federal court is conditioned
upon the requester's ability to prove his indigency, a
particular need for the transcript in connection with a
subsequent proceeding, and that no alternative would suffice.
See 28 U.S.C. 753(f). Mr. Rodgers has neither
appealed this Court's prior order nor requested
permission to proceed in forma pauperis on appeal.
Even if he had, the Court would nevertheless, at this time,
deny his request for free copies of transcripts. Section
753(f) of Title 28 of the United States Code states, in part:
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).
See also Fisher v. Hargett, 997 F.2d 1095 (5th Cir.
1993)(citing Britt v. North Carolina, 404 U.S. 226,
227 (1971)); United States v. MacCollum, 426 U.S.
317 (1976). In other words, an indigent party may be entitled
to transcripts without prepayment if the Court certifies that
an appeal is not frivolous. This condition has not been met.
Rodgers has not filed his notice of appeal with the Fifth
Circuit, nor has he requested pauper status on appeal. Nor
has he provided the Court with an explanation of the issues
he advances or will advance on appeal. Thus, the Court is
unable to determine whether his appeal is frivolous or
whether it presents a substantial question. Rodgers also
fails to cite any authority in support of his request that
this Court allow him more time to file his appeal with the
Fifth Circuit. Accordingly, IT IS ORDERED: that the motion
for production of documents to prepare his appeal in which he
requests transcripts without prepayment is hereby DENIED. IT
IS FURTHER ORDERED: that the ...