(PC) Sekona v. Francis ( 2023 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 ETUATE SEKONA, Case No. 1:19-cv-00529-ADA-HBK (PC) 12 Plaintiff, ORDER DENYING PLAINTIFF’S MOTION FOR APPOINTMENT OF COUNSEL AND 13 v. APPOINTMENT OF AN INTERPRETER 14 M. FRANCIS, (Doc. No. 67) 15 Defendant. 16 17 Pending before the Court is Plaintiff’s motion to appoint counsel and appointment of a 18 Tongan interpreter. (Doc. No. 67). Plaintiff, a prisoner, is proceeding pro se on his civil rights 19 complaint filed on April 24, 2019. (Doc. No. 1). The Court granted Plaintiff’s application to 20 proceed in this action in forma pauperis on May 29, 2019. (Doc. No. 8). Plaintiff seeks 21 appointment of counsel because English is not his primary language. (Doc. No. 67). 22 The United States Constitution does not require appointment of counsel in civil cases. See 23 Lewis v. Casey, 518 U.S. 343, 354 (1996) (explaining Bounds v. Smith, 430 U.S. at 817, did not 24 create a right to appointment of counsel in civil cases). Under 28 U.S.C. § 1915, this court has 25 discretionary authority to appoint counsel for an indigent to commence, prosecute, or defend a 26 civil action. See 28 U.S.C. § 1915(e)(1) (stating the court has authority to appoint counsel for 27 people unable to afford counsel); see also United States v. McQuade, 519 F.2d 1180 (9th Cir. 28 1978) (addressing relevant standard of review for motions to appoint counsel in civil cases) (other 1 citations omitted). However, motions to appoint counsel in civil cases are granted only in 2 “exceptional circumstances.” Id. at 1181. The court may consider many factors to determine if 3 exceptional circumstances warrant appointment of counsel including, but not limited to, proof of 4 indigence, the likelihood of success on the merits, and the ability of the plaintiff to articulate his 5 or her claims pro se in light of the complexity of the legal issues involved. Id.; see also Rand v. 6 Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), withdrawn in part on other grounds on reh’g en 7 banc, 154 F.2d 952 (9th Cir. 1998). 8 Plaintiff has not met his “burden of demonstrating exceptional circumstances.” Jones v. 9 Chen, 2014 WL 12684497, at *1 (E.D. Cal. Jan. 14, 2014). A plaintiff’s limited English 10 proficiency “does not constitute an exceptional circumstance.” Garces v. Degadeo, WL 1521078, 11 at *1 (E.D. Cal. May 22, 2007). Plaintiff has capably filed motions and his complaint has 12 plausibly stated a claim to survive an initial screening. Notably, Plaintiff has successfully 13 litigated his complaint to the point that the instant action is set for trial. Plaintiff has not showed 14 exceptional circumstances warrant appointment of counsel at this stage of the proceedings. 15 Plaintiff also requests a Tongan interpreter because English is not his primary language. 16 (Doc. No. 67). There are no statutory provisions that authorize “district courts to appoint an 17 interpreter in a civil rights action that is initiated by an indigent state prisoner.” Sekona v. 18 Liazarraga, 2018 WL 11304911, at *1 (E.D. Cal. Jun. 29, 2018); see also Gonzalez v. Bopari, 19 2012 WL 6569776, at *1 (E.D. Cal. Dec. 17, 2012); Ruiz v. Stane, 2022 WL 1490416, at *2 (E.D. 20 Cal. May 11, 2022 (“the in forma pauperis statute does not authorize public funds for a court 21 appointed interpreter.”) (Citation omitted). When it is clear that a prisoner cannot articulate his 22 claims in English, courts have instead appointed counsel. Sekona, 2018 WL 11304911 at *1. 23 (Citations omitted). However, when a “prisoner has some ability to communicate in English, 24 courts have generally declined to appoint counsel on the basis of limited English.” Id. (citations 25 omitted). While English is not Plaintiff’s primary language, he has demonstrated the ability to 26 communicate in English. As stated supra, Plaintiff successfully filed multiple pleadings 27 including, a complaint that survived screening, various motions, including responding to a motion 28 for summary judgment, filing objections to findings and recommendations, and a pretrial 1 | statement. Plaintiff was able to participate fully in a settlement conference and has successfully 2 || prosecuted this case to the trial stage. Because Plaintiff has been able to successfully articulate 3 | his claims in English, the Court does not find a need for an interpreter. 4 Accordingly, it is ORDERED: 5 Plaintiff's motion for an appointment of counsel and appointment of an interpreter (Doc. 6 || No. 67) is DENIED. 7 Dated: _ February 8, 2023 Mile. □□□ foareA Zacks 9 HELENA M. BARCH-KUCHTA 10 UNITED STATES MAGISTRATE JUDGE 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28