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Sekona v. Trujillo

United States District Court, E.D. California

November 13, 2019

ETUATE SEKONA, Plaintiff,
v.
TRUJILLO, et al., Defendants.

          ORDER DENYING MOTION TO APPOINT COUNSEL AND FOR TONGAN INTERPRETER (ECF NO. 14) ORDER GRANTING SECOND MOTION FOR EXTENSION OF TIME TO FILE FIRST AMENDED COMPLAINT (ECF NO. 13) THIRTY (30) DAY DEADLINE

          BARBARA A. MCAULIFFE UNITED STATES MAGISTRATE JUDGE

         Plaintiff Etuate Sekona (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On September 9, 2019, the Court screened Plaintiff's complaint and granted Plaintiff leave to file a first amended complaint within thirty (30) days. (ECF No. 10.) On October 8, 2019, the Court granted Plaintiff a thirty-day extension of time to file his first amended complaint. (ECF No. 12.)

         Currently before the Court are Plaintiff's motion to appoint counsel and a Tongan interpreter, (ECF No. 14), and Plaintiff's motion for a second extension of time to file his first amended complaint, (ECF No. 13). In both motions, Plaintiff argues that he requires counsel, an interpreter, and additional time because he received a TABE score of 2.3 in English, he has a limited knowledge of the English language, and he is suffering from brain damage that causes confusion and dizziness. (ECF Nos. 13, 14.) Plaintiff also argues that counsel should be appointed due to the complexity of the case, and because Plaintiff cannot write artfully to the Court. (Id.)

         Plaintiff is first informed that he does not have a constitutional right to appointed counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev'd in part on other grounds, 154 F.3d 952, 954 n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional circumstances the court may request the voluntary assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

         Without a reasonable method of securing and compensating counsel, the Court will seek volunteer counsel only in the most serious and exceptional cases. In determining whether “exceptional circumstances exist, a district court must evaluate both the likelihood of success on the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

         The Court has considered Plaintiff's request, but does not find the required exceptional circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has made serious allegations which, if proved, would entitle him to relief, his case is not exceptional. This Court is faced with similar cases filed by prisoners with limited literacy, limited knowledge of English, and facing serious medical issues who are proceeding pro se and in forma pauperis almost daily. These prisoners also must conduct legal research and prosecute claims without the assistance of counsel.

         Furthermore, at this stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed on the merits, and based on a review of the record in this case, the Court does not find that Plaintiff cannot adequately articulate his claims.

         As to Plaintiff's request for an interpreter, “the 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) (internal quotation marks and citation omitted). The in forma pauperis statute does not authorize the expenditure of public funds for court-appointed interpreters. 28 U.S.C. § 1915; Loyola v. Potter, Case No. C 09-0575 PJH, 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.”). Further, Plaintiff has failed to allege any facts demonstrating that he is entitled to a court-appointed Tongan interpreter as an accommodation pursuant to the Americans with Disabilities Act. Therefore, the Court finds that Plaintiff has not established that this Court has the authority to appoint a Tongan interpreter to assist him with this litigation.

         However, based on Plaintiff's allegations regarding his limited English proficiency and his ongoing health issues the Court finds good cause to grant a second thirty-day extension of time for Plaintiff to file his first amended complaint. Fed.R.Civ.P. 6(b).

         Accordingly, IT IS HEREBY ORDERED as follows:

1. Plaintiff's motion to appoint counsel and a Tongan interpreter, (ECF No. 14), is DENIED, without prejudice;
2. Plaintiff's motion for extension of time to file a first amended complaint, (ECF No. 13), is GRANTED;
3. The Clerk's Office shall send Plaintiff a complaint form;
4. Within thirty (30) days from the date of service of this order, Plaintiff shall file an amended complaint curing the deficiencies identified by the Court in the September 9, 2019 screening order ...

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