Terence C. Everett v. Marianna Police Dept. , 391 F. App'x 846 ( 2010 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-16224 ELEVENTH CIRCUIT
AUGUST 11, 2010
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 07-00284-CV-5-RS/MD
TERENCE C. EVERETT,
Plaintiff-Appellant,
versus
MARIANNA POLICE DEPARTMENT,
Defendant,
JONATHAN P. SMITH,
MATT VICKERY,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Florida
_________________________
(August 11, 2010)
Before EDMONDSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Terrence C. Everett appeals the district court’s decision denying his request
for a transcript at the government’s expense, pursuant to 28 U.S.C. § 753(f). A
party in a civil proceeding may obtain a transcript at the government’s expense if
(1) he is granted leave to proceed in forma pauperis on appeal and (2) “the trial
judge or a circuit judge certifies that the appeal is not frivolous (but presents a
substantial question).” 28 U.S.C. § 753(f). Everett has been granted leave to
appeal in forma pauperis by the district court. Therefore, the only question is
whether Everett’s appeal is not frivolous, but presents a substantial question.
At bottom, Everett’s principal claim on appeal is that the district court’s
factual findings are contrary to the weight of the evidence.1 Such a claim can
neither be prosecuted nor reviewed in the absence of a transcript of the district
court proceedings. See Fed. R. App. P. 10(b)(2). This kind of claim poses a
dilemma: we arguably need to review the transcript to decide whether Everett is
entitled to one. To avoid this circularity, we must first ask whether the
representations made by Everett about what the record would reveal—if
true—raise a substantial question. See Jaffee v. United States, 246 F.2d 760, 762
1
Like the district court, we flatly reject Everett’s assertion that the district court was
biased against him based on his appearance at trial in a prison jumpsuit. Any appeal based on
that alleged bias is frivolous.
2
(2d Cir. 1957).
As we noted in our decision affirming the district court’s denial of qualified
immunity, “the facts of this case are hotly disputed.” Everett v. Smith, No. 09-
10343, at 3 (11th Cir. July 21, 2009). In support of his appeal, Everett points to his
own contrary testimony, which the district court rejected, and to purported
conflicts between the defendants’ trial and deposition testimony. Everett’s
representations are sufficient to raise a debatable issue, even if minimally so. We
cannot evaluate the weight of the evidence or the alleged discrepancies in the
defendants’ testimony without a transcript. Accordingly, the district court’s
decision denying Everett’s request for a trial transcript pursuant to 28 U.S.C. §
753(f) is reversed.2
AFFIRMED in part and REVERSED in part.
2
We affirm the denial of Everett’s request for a transcript of the post-trial hearing on
Everett’s motion for sanctions.
3