United States District Court, N.D. Mississippi, Greenville Division
WILLIE J. HARRIS PLAINTIFF
RICHARD PENNINGTON, ET AL. DEFENDANTS
ORDER DENYING MOTION FOR RECONSIDERATION
Michael P. Mills UNITED STATES DISTRICT JUDGE
the court is the plaintiff's renewed motion for a
transcript of the Spears hearing held in this cause
on January 8, 2018, which is construed as a motion for
reconsideration of a prior order directing the Clerk to
forward the plaintiff an electronic copy of the hearing. Doc.
Applicable Legal Standard
case, the plaintiff's request for reconsideration of the
prior order is governed by Federal Rule of Civil Procedure
59(e). An order granting Rule 59(e) relief is appropriate
when: (1) there has been an intervening change in the
controlling law, (2) where the movant presents newly
discovered evidence that was previously unavailable, or (3)
to correct a manifest error of law or fact. Schiller v.
Physicians Resource Group, Inc., 342 F.3d 563, 567 (5th
Cir. 2003). A Rule 59(e) motion cannot be used to raise
theories or arguments which could, and should, have been made
earlier, nor can it be used to re-urge matters that have
already been advanced by a party. Helena Laboratories
Corp. v. Alpha Scientific Corp., 483 F.Supp.2d 538, 539
(E.D. Tex. 2007) (citation and quotation marks omitted).
plaintiff's Spears hearing was audio recorded
only; no court reporter was present. See Doc. #35.
Subsequently, the plaintiff requested a free copy of the
Spears transcript. Doc. #44. Magistrate Judge Jane
M. Virden denied the plaintiff's motion, finding
“[t]he plaintiff offers no justification for why the
court should bear the cost of preparing a transcript when an
electronic recording exists, ” and directing the Clerk
to forward the plaintiff a copy of his Spears
hearing on compact disc. Doc. #45.
instant motion, the plaintiff contends that the magistrate
judge's conclusion was error for the following reasons:
(1) he is entitled to a free copy of the transcript, as he is
indigent and requires the transcript in order to properly
present his case on any resulting appeal; (2) there is a
federal requirement that a court reporter be present at all
court proceedings, and that such a requirement is recognized
by the local rules; (3) that reliance on an electronic
recording is in conflict with the law; and (4) not having a
copy of a transcript that he can keep in his possession
places an undue burden on him given the delay he will
ultimately encounter in requesting and gaining access to a
computer to review the compact disc of the Spears
hearing. See id.
district court may order the preparation of a transcript if
it finds that the transcript is necessary. 28 U.S.C. §
1915(c). However, an individual possesses no constitutional
right to a free copy of a transcript to search for defects
merely because he is an indigent. Bonner v.
Henderson, 517 F.2d 135, 135 (5th Cir. 1975). Rather, in
order “to succeed on a motion for production of
transcripts at government expense, a party must also show why
the transcripts are necessary for the proper disposition of
his appeal.” Norton v. Dimazana, 122 F.3d 286,
293 (5th Cir. 1997) (determining that prisoners proceeding
in forma pauperis are not necessarily entitled to
transcripts of their Spears hearings). Additionally,
the Fifth Circuit has held that a plaintiff must
“demonstrate that the costs of preparing a transcript
are justified when an electronic recording of the hearing
[is] available.” Cooper v. Hung, 485 F.
App'x 680, 683 (5th Cir. 2012).
the plaintiff was present for his Spears hearing,
and he has been forwarded an electronic copy of the hearing.
The Court finds that there is no reason to order the
transcription of the hearing at government expense. It
further finds that the plaintiff's contention that he is
entitled to a free transcript as a matter of federal law is
incorrect, as is his argument that courts are required by
federal law and local rule to have stenographers transcribe
all court proceedings as a matter of course. See,
e.g., 28 U.S.C. § 753(b) (“Each session of
the court and every other proceeding designated by rule or
order of the court or by one of the judges shall be recorded
verbatim by shorthand, mechanical means, electronic
sound recording, or any other method, subject to
regulations promulgated by the Judicial Conference and
subject to the discretion and approval of the judge.”)
(emphasis added); see also Local Civil Rule 81(b)
(exempting from local rules § 1983 actions brought by
pro se plaintiffs).
Court finds that it is not necessary for the plaintiff to
have a free copy of the transcript of his Spears
hearing in order to litigate his claims. It further finds
that the plaintiff has offered no justification that would
warrant relief under Federal Rule 59(e). Accordingly, the
instant motion  is DENIED.