Appeal from the United States District Court for the Western District of Pennsylvania, D.C. Civ. No. 85-2269.
Appellant Russell F. Walker petitions this court for the preparation of transcripts at government expense. Walker, who has already paid the required filing fee in this court, is without full in forma pauperis status as defined in 28 U.S.C. § 1915(d) (1982). His request for public expenditures extends only to the transcription of the trial testimony. Walker's willingness to fund most of the cost of the appeal makes this petition, in effect, a request that he be granted partial in forma pauperis status. We conclude, in this case of first impression, that partial in forma pauperis status may confer authority to grant the preparation of transcripts at public cost. We will, however, deny Walker's petition for transcripts because his financial resources render him ineligible for even partial pauper status.
In September 1985, Walker filed a complaint in the United States District Court for the Western District of Pennsylvania against People Express Airlines, Inc. ("People's Express"); one of its employees, Patrick Scaringi; and various judicial and law enforcement officials in Allegheny County. The suit resulted from an incident between Walker and officials at the now defunct People's Express. As recounted in the complaint, Walker was apparently "bumped" from his reserved flight to Pittsburgh and placed on another Pittsburgh-bound flight. This subsequent placement was made over Walker's protest, as this second flight cost an additional $45.00. While en route to Pittsburgh, Walker was asked by People's Express flight personnel to tender the additional $45.00, and he refused. Consequently, upon his arrival at Pittsburgh International Airport, Walker was arrested, arraigned before a city magistrate, and taken to the Allegheny County Jail. People's Express eventually dropped all charges, but not before Walker had spent two days confined in the county jail.
Walker's complaint charged People's Express and its employee Scaringi with violating certain contractual rights. The remaining defendants were alleged to be state actors who, under color of state law, had deprived Walker of various constitutional rights in violation of 42 U.S.C. § 1983. Walker, a citizen of Pennsylvania, asserted jurisdiction against People's Express and Scaringi, both citizens of New Jersey, under 28 U.S.C. § 1332. He further alleged that "jurisdiction relative to all other defendants is founded on the existence of a federal question." The case was tried to a jury, which returned verdicts in favor of defendants People's Express, Scaringi, and James N. Gregg, a deputy warden at the Allegheny County Jail.*fn1 Walker's motion for new trial was denied. He then filed a petition for partial leave to proceed in forma pauperis on appeal, averring therein that he was unable to pay the costs of preparing the entire trial transcript. The district court denied this petition, and Walker filed a notice of appeal. He now requests this court to direct the preparation of trial transcripts at public expense so that he may appeal certain trial matters. Walker claims that he is unable to pay for the preparation of the trial transcripts and supports his motion with a declaration detailing, to a certain extent, his net worth.
In his motion for transcripts, Walker maintains that although he can afford to pay the $105.00 filing fee, the cost of transcribing the defendants' closing argument, and the cost of printing the briefs, he cannot afford the cost of preparing the entire trial transcript. Without the trial transcript, Walker contends that he will be prevented from appealing certain trial matters. He therefore requests that portions of the transcript be furnished at public expense.
Government monies may be allocated to fund the preparation of transcripts under 28 U.S.C. § 753(f). In relevant part, the statute prescribes:
Fees for transcripts furnished in criminal proceedings to persons proceeding under the Criminal Justice Act (18 U.S.C. § 3006A), or in habeas corpus proceedings to persons allowed to sue, defend, or appeal in forma pauperis, shall be paid by the United States out of moneys appropriated for those purposes. Fees for transcripts furnished in proceedings brought under section 2255 of this title to persons permitted to sue or appeal in forma pauperis shall be paid by the United States out of money appropriated for that purpose 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. 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).
By its express terms, section 753(f) allows litigants to receive transcripts at public expense only if they are proceeding in forma pauperis, regardless of whether their case involves criminal, habeas, section 2255, or "other" proceedings. See Maloney v. E.I. DuPont de Nemours & Co., 130 U.S. App. D.C. 58, 396 F.2d 939, 940 (D.C.Cir. 1967), (considering a request that portions of the trial transcript be furnished at government cost to an appellant who had already paid the required filing fee, and holding, in reliance on section 753(f), that "[before] a free transcript can be furnished, . . . the appeal must be permitted in forma pauperis, and the required certification must be made"), cert. denied, 396 U.S. 1030, 24 L. Ed. 2d 525, 90 S. Ct. 585, reh'g denied, 397 U.S. 930, 25 L. Ed. 2d 112, 90 S. Ct. 936 (1970).*fn2
We have previously recognized a form of partial in forma pauperis status by approving the procedure of allowing litigants who seek to proceed in forma pauperis to pay a partial filing fee. See Bullock v. Suomela, 710 F.2d 102 (3d Cir. 1983). We considered the rationale of this procedure in Jones v. ...