In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 13‐2420
BRIAN A. MAUS,
Plaintiff‐Appellant,
v.
DIANE BAKER, et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 09 C 42 — Rudolph T. Randa, Judge.
____________________
SUBMITTED AUGUST 2, 2013 — DECIDED SEPTEMBER 5, 2013
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Before POSNER, Circuit Judge.
A state prison inmate named Brian Maus has appealed
pro se from the dismissal after trial of his suit under 42
U.S.C. § 1983 against prison officials for using excessive
force against him on multiple occasions. He moves our court
to order that he be given the trial transcript for free, to aid
him in his appeal. The motion has been referred to me, as
motions judge when it was filed, for a ruling. See 7th Cir.
Operating Proc. 1(a)(1); Fed. R. App. P. 27(c).
2 No. 13‐2420
Section 753(f) of the Judicial Code provides that
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 pro‐
ceedings 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 per‐
sons 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).
The key sentence applicable to this case is the last, and it al‐
lows an appellant in Maus’s position to obtain a transcript
without charge only if he is proceeding in forma pauperis.
(The limitation to nonfrivolous appeals was held constitu‐
tional in United States v. MacCollom, 426 U.S. 317 (1976).) Also
28 U.S.C. § 1915(c)(1) allows the district court, in the case of a
litigant who is proceeding in forma pauperis, to “direct
payment by the United States of the expenses of printing the
record on appeal in any civil or criminal case, if such print‐
ing is required by the appellate court.” What is required to
constitute the appellate record is set forth in Fed. R. App. P.
10, and can include the transcript, as we’ll see in a moment.
Maus is not proceeding in forma pauperis, and cannot,
regardless of poverty, because he has three strikes and has
No. 13‐2420 3
not shown that he’s in imminent danger of serious physical
injury. 28 U.S.C. § 1915(g). He has paid the required fee for
filing his appeal, but claims that he doesn’t have the money
to pay for the transcript, which he estimates would cost him
between $2,000 and $3,000 (the court reporter has not pro‐
vided an estimate of the cost). He fears that without the tran‐
script his appeal will be dismissed, because Fed. R. App. P.
10(b)(2) states that “if the appellant intends to urge on ap‐
peal that a finding or conclusion is unsupported by the evi‐
dence or is contrary to the evidence, the appellant must in‐
clude in the record a transcript of all evidence relevant to
that finding or conclusion.”
I am not the first judge to be troubled by the prospect
that a litigant with a potentially meritorious claim would
forfeit appellate review simply because he can’t pay for a
transcript; someone who isn’t poor enough to qualify for in
forma pauperis status may still be unable to pay thousands
of dollars for a trial transcript. Walker v. People Express Air‐
lines, Inc., 886 F.2d 598, 601 (3d Cir. 1989), responded to this
dilemma by holding that in forma pauperis status could be
granted for the limited purpose of excusing the plaintiff
from having to pay the cost of a transcript required for his
appeal, although the court denied such relief in that case. See
also Zaun v. Dobbin, 628 F.2d 990, 993 (7th Cir. 1980) (per cu‐
riam); In re Stump, 449 F.2d 1297, 1297–98 (1st Cir. 1971) (per
curiam). These cases, as noted in Tucker v. Branker, 142 F.3d
1294, 1298–99 (D.C. Cir. 1998), date from the more forgiving
era in which a district judge was authorized to waive the fil‐
ing fee in part or whole if the plaintiff was proceeding in
forma pauperis. No longer can the judge do that, though he
can allow the fee to be paid in installments. 28 U.S.C.
§ 1915(b). But 28 U.S.C. § 753(f), insofar as concerns the gov‐
4 No. 13‐2420
ernment’s paying for transcripts, is unchanged. And so we
can assume, though we needn’t decide, that cases like Walker
survive the enactment of section 1915(b). But the cases can‐
not help Maus. He hasn’t been barred from proceeding in
forma pauperis by poverty, as in Walker, but by the three‐
strikes rule, a bar unrelated to ability to finance an appeal.
Poverty or affluence is irrelevant to a denial of in forma
pauperis status based on such a rule, and there is no compel‐
ling reason to require the government to defray litigation
expenses of a prisoner who has already burdened the judici‐
ary with repeated meritless suits.
The motion is therefore
DENIED.