Memorandum in Support of Motion for Transcripts



September Term, 1995
USDC No. 94cv02747
William Thomas, et al., Appellants


United States of America, et al., Appellees



Restraining Order, was approved for filing in forma pauperis, and docketed on December 22, 1994. An Order filed April 12, 1995 dismissed the Complaint, in part, holding that certain claims were not stated with sufficient specificity to overcome Appellees' official immunity. Docket # 72. In the same Order, the Court also held that Appellant had stated other claims with sufficient specificity to overcome Appellees' official immunity assertions. Both parties moved for partial reconsideration. Finally, in an Order filed August 23, 1995, the District Court reversed itself to Appellees' advantage, and granted summary judgment on all counts. Docket # 113.


At the TRO hearing, which, over Appellant's vigorous objection, was not held until January 6, 1995, the following colloquy occurred,
"THE COURT: Wait just a moment, please. I'm asking you a question. Your complaint is not a verified complaint, although you do have a declaration of Concepcion (Picciotto). And I think there's one by you too, Mr. Varner, too....

"MR. THOMAS: I'll tell you what. I could argue with what the Government said, but I'm not going to do that. I have witnesses here who will illustrate that (AUSA Sally Rider's) representations are false. And if you hear the testimony, you'll be convinced that representations that the Government has made are false. That's the only reason I can suggest that you should take testimony. But if you want to ignore the facts and rule on the Government's representations -- well, provided you rule in my favor, I don't care." Transcript, January 6, 1995, pgs. 20, 21.
After hearing no testimony or evidence from Appellees, and refusing to hear the witnesses Appellant had present in court. the District Court denied Appellant's motion for a TRO. Appellant suggested the Court might to consider a dismissing the


complaint sua sponte as frivolous. Docket # 12.

Previously the District Court had stated it had, "no intention of dismissing this case sua sponte as it does not view the matter as frivolous." Order, February 2, 1995, pg. 9, Docket # 47.

Subsequently the case dragged on -- through two more status hearings, but no evidentiary hearings -- growing to over one hundred and twenty docket entries. In its final resolution the District Court relied entirely on the doctrine of "official Immunity" to dismiss the complaint, all without a hint that the complaint was frivolous..

On September 22, 1995, Appellant moved the District Court to provide transcripts of the April 19, 1995, and August 4, 1995 hearings. On September 26, 1995, the Court denied appellants' motion for transcripts, holding,
"(T)he Court cannot certify that the appeal is not frivolous (but presents a substantial question). The Court has examined with utmost care all of the Plaintiffs' arguments in this case and, while it respects the Plaintiffs' right of access to the Courts, the undersigned cannot in good conscience, require the taxpayers to pay for the requested transcripts." Order, September 28, 1995 (Parentheses in original),. Docket # 120.


This Court has instructed its lower courts that meritless complaints should be dismissed sua sponte; at the same time this Court has required that the grounds for such dismissals be clearly documented by the court of record. E.g., Sills v. Bureau of Prisons, 761 F.2d 792 (DC Cir. 1985).

The District Court's reluctance to dismiss the complaint as frivolous (Docket # 47), and the Court's ultimate disposition of the case under Rules 12(b)(6) and 56, with absolutely no mention that the issues raised might be frivolous, provides no basis for the Court's bare bones post hoc suggestion that an appeal might be frivolous.


The District Court may be certain that its resolution of the case was flawless, but Appellant suggests any human judge, no matter how wise and honorable, is capable of error, and this may be precisely the reason that Appellate Courts exist.

The enactment 18 USC 1915(b) and 28 U.S.C. Sec. 753(f) demonstrates Congress' opinion that the provision of transcripts to indigent litigants at government expense is necessary to assure meaningful access to the courts. [1]

Notwithstanding the District Court's assertion that it "has examined with utmost care all of the Plaintiffs' arguments in this case" (Order September 26, 1995), it must be expected that in the vast majority of cases which have gone on to the appellate level the lower court would have been convinced that it had examined with utmost care all of the arguments in the case; nonetheless, the law books show that on numerous occasions appellate courts have found that the utmost care of lower court scrutiny does not insure error free judgments.


Owing to the District Court's refusal to provide transcripts of the hearings held on April 19, 1995, and August 4, 1995, Appellant hereby moves this Court to issue the appropriate Order.

Respectfully submitted this 30th day of October, 1995,

William Thomas, Appellant, pro se
2817 11th Street NW
Washington, D.C. 20038

[1 For the record, Appellant submits herewith a declaration to show that his financial status has not changed since he was granted leave to proceed in forma pauperis by the District Court.]