Opinion
No. 2:19-cv-2118 MCE KJN P
03-18-2021
ROGELIO MAY RUIZ, Plaintiff, v. D. WOODFILL, Defendant.
ORDER
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis. This action proceeds on plaintiff's second amended complaint alleging that defendant Woodfill discriminated against plaintiff in violation of the Fourteenth Amendment, and denied plaintiff outside exercise, in violation of the Eighth Amendment. On January 14, 2021, defendant filed a motion to revoke plaintiff's in forma pauperis status. On February 18, 2021, plaintiff filed a motion to appoint counsel and an opposition; while the motion to appointment counsel is written in English, the opposition is completely written in Spanish. Plaintiff seeks the appointment of an interpreter. (ECF No. 47 at 1, 4.)
On March 12, 2021, defendant filed a reply, pointing out that all filings in federal court must be written in English, and providing documents that suggest plaintiff has a history of falsely claiming he is unable to understand or speak English, and providing plaintiff's Effective Communication Chrono that noted plaintiff's mental health provider Dr. Lewis "stated that plaintiff understands and can read English clearly." (ECF No. 48 at 5.)
Request for Interpreter
Plaintiff has not shown that this court has the authority to appoint him an interpreter. "[T]he expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress. . . .'" Tedder v. Odel, 890 F.2d 210, 211 (9th Cir. 1989) (quoting United States v. MacCollom, 426 U.S. 317, 321 (1976)). The undersigned is unaware of any statute authorizing the expenditure of public funds for a court-appointed interpreter in a civil action. The in forma pauperis statute does not authorize the expenditure of public funds for court-appointed interpreters. See 28 U.S.C. § 1915; Loyola v. Potter, 2009 WL 1033398, at *2 (N.D. Cal. Apr. 16, 2009) ("The court is not authorized to appoint interpreters for litigants in civil cases, and, moreover, has no funds to pay for such a program."); Mendoza v. Blodgett, 1990 WL 263527, at *15 (E.D. Wash. Dec. 21, 1990) ("There is no specific statute which authorizes the court to appoint an interpreter in civil in forma pauperis actions."); compare Fed. R. Civ. P. 43(d) (granting a trial judge discretion to appoint an interpreter for trial).
Moreover, the record reflects that plaintiff has sufficient proficiency with the English language to prepare an original complaint, and to pursue his claims in this action. See Velez v. Burge, 2009 WL 3459744, *2 (W.D. N.Y. Oct. 20, 2009) (denying pro se plaintiff's request for appointment of an interpreter because the record showed that the plaintiff had sufficient proficiency with the English language to prosecute the claims asserted in the complaint). Plaintiff has met deadlines and sought extensions of time. While Spanish may be plaintiff's primary language, there is no indication in the record that plaintiff is unable to prepare court papers and to communicate with the court. See Cisnevas-Garcia v. Shipman, 2010 WL 3491359, at *5 (N.D. N.Y. Aug. 31, 2010). The exhibits provided by defendant reflects plaintiff communicates with prison staff in English, and his mental health provider confirmed his ability to communicate in English with his mental health professional.
In addition, prior court filings by plaintiff further demonstrate such ability. In Ruiz v. Orozco, No. 1:19-cv-0048 AWI GSA (E.D. Cal.), plaintiff filed his initial complaint in English, with no notation he was assisted by another prisoner. In Ruiz v. Sadler, No. 2:19-cv-0147 EFB (E.D. Cal.), plaintiff filed his initial complaint in English, again noting no assistance from another prisoner. Id.
A court may take judicial notice of court records. See, e.g., Bennett v. Medtronic, Inc., 285 F.3d 801, 803 n.2 (9th Cir. 2002) ("[W]e may take notice of proceedings in other courts, both within and without the federal judicial system, if those proceedings have a direct relation to matters at issue") (internal quotation omitted).
In addition, plaintiff was previously informed that all court filings must be submitted in English. Ruiz v. Mobert, No. 1:17-cv-0709 AWI JDP (E.D. Cal.) ("Plaintiff must seek assistance at the prison if he cannot complete his court filings in English on his own, as he has done thus far." Id., July 5, 2017 Order (ECF No. 8 at 1), citing Lewis v. Casey, 518 U.S. 343, 356 (1996); Ruiz v. Arakaki, No. 1:17:1404 AWI SAB (E.D. Cal.). Id., Oct. 20, 20117 Order (ECF No. 24 at 2) (same). In Arakaki, the court added: "The use of jailhouse lawyers is one recognized avenue available to ensure that non-English speaking and/or illiterate inmates have meaningful access to the courts," citing Lewis, 518 U.S. at 356-57.
As noted by defendant, plaintiff is required to file documents in English. Therefore, the court disregards plaintiff's opposition filed in Spanish (ECF No. 47 at 1-2), and grants plaintiff an additional twenty-one days in which to file an opposition in English. The court does not provide interpreters for litigants. Plaintiff is cautioned that failure to comply with this order may result in an order granting defendant's pending motion.
Motion for Appointment of Counsel
Plaintiff requests that the court appoint counsel. District courts lack authority to require counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney to voluntarily represent such a plaintiff. See 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990). When determining whether "exceptional circumstances" exist, the court must consider plaintiff's likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (district court did not abuse discretion in declining to appoint counsel). The burden of demonstrating exceptional circumstances is on the plaintiff. Id. Circumstances common to most prisoners, such as lack of legal education and limited law library access, do not establish exceptional circumstances that warrant a request for voluntary assistance of counsel.
Having considered the factors under Palmer, the court finds that plaintiff has failed to meet his burden of demonstrating exceptional circumstances warranting the appointment of counsel at this time.
Plaintiff included a request that he be paid money for all of his lost property; such request bears the case information Ruiz v. Curry, No. 1:17-cv-1407 DAD SKO (E.D. Cal.). (ECF No. 47 at 4.) Court records confirm that such case was terminated on February 25, 2019, and plaintiff's appeal was dismissed. Id. The instant action does not include any claims concerning the taking of property, and, as plaintiff was informed in Curry, plaintiff must pursue such claims in state court. Id. (January 13, 2019 findings and recommendations) (ECF No. 28 at 5).
Plaintiff also appended a number of documents bearing other case numbers and tort claims filed with the State of California, none of which are relevant to the instant action. (ECF No. 47 at 5-61.) Such exhibits congest the court record. Plaintiff should refrain from filing exhibits until he is required to submit evidence in support of a dispositive motion or at trial.
Request to Waive Fees
Plaintiff previously filed a request to waive court fees. (ECF No. 44.) However, as explained in the December 12, 2019 order, litigants proceeding in forma pauperis are still required to pay the court's filing fee but are allowed to have the fee collected in payments from the inmate's prison trust account. (ECF No. 9.) Congress required district courts to assess such fees, despite the litigant's indigency. 28 U.S.C. § 1915(b). Thus, plaintiff's request to waive fees is denied.
Orders
Accordingly, IT IS HEREBY ORDERED that:
1. Plaintiff's request for an interpreter is denied.
2. Plaintiff is granted twenty-one days in which to file an opposition in English.
3. Plaintiff's motion for the appointment of counsel (ECF No. 47) is denied without prejudice.
4. Plaintiff's request to waive court fees (ECF No. 44) is denied. Dated: March 18, 2021
/s/_________
KENDALL J. NEWMAN
UNITED STATES MAGISTRATE JUDGE /ruiz2118.interp