Hrbenic #260775 v. Ryan et al

Filing 33

ORDER: Petitioner's appeal 31 is denied; Magistrate Judge Fine's Order 29 is affirmed. Signed by Senior Judge James A Teilborg on 8/16/16. (REW)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Denijal Hrbenic,

No. CV-14-02251-PHX-JAT (DMF)

Petitioner,

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v.

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ORDER

Charles L Ryan, et al.,

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Respondents.

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Pending before the Court is an appeal from Magistrate Judge Fine’s July 18, 2016,

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Order denying Petitioner Denijal Hrbenic’s Motion for Interpreter Services. (Doc. 29).

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The Magistrate Judge denied Petitioner’s motion on two grounds, finding that (1) there

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was no legal basis entitling Petitioner to an interpreter at this stage of the proceedings,

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and that (2) Respondents had agreed to provide Petitioner with a Bosnian interpreter if he

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filed the correct paperwork. (Id. at 2-3). Having reviewed Petitioner’s filing, the Court

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now rules on the appeal.

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I.

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For purposes of adjudicating the pending appeal, the Court need not set forth the

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factual allegations underlying Petitioner’s filing for a Writ of Habeas Corpus. It is

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sufficient to note that on August 1, 2016, Petitioner appealed from the Magistrate Judge’s

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Order denying his motion to appoint a Bosnian interpreter, asserting generally that he has

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a constitutional right to an interpreter in these proceedings.1 (Doc. 31).

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II.

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“A district court may refer a pretrial matter to a magistrate to ‘hear and

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determine,’ and may review the magistrate’s order ‘where it has been shown that the

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magistrate’s order is clearly erroneous or contrary to law.’” Title 28 U.S.C. §

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636(b)(1)(A) (2012); Barten v. State Farm Mut. Auto. Ins. Co., No. CZV-12-0399-TUC-

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CKJ, 2014 U.S. Dist. LEXIS 133569, at *10 (D. Ariz. Sept. 23, 2014) (quoting Doe v.

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Kamehameha Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1041 (9th Cir.

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2010)). Stated in other terms, the Court reviews an appeal from the Magistrate Judge’s

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decision “for clear error.” Maisonville v. F2 America, Inc., 902 F.2d 746, 747 (9th Cir.

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1990) (citations omitted). Under this standard of review, the Magistrate Judge’s decision

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is “not subject to de novo determination,” and the Court “may not simply substitute its

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judgment for that of the deciding court.” Grimes v. City and Cnty. of San Francisco, 951

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F.2d 236, 241 (9th Cir. 1991). Clear error is present when the Court is “left with the

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definite and firm conviction that a mistake has been committed.” Easley v. Cromartie,

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532 U.S. 234, 242 (2001).

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III.

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“It is well settled that habeas corpus is a civil proceeding.” Browder v. Director,

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Dep’t of Corrections of Illinois, 434 U.S. 257, 269 (1978) (citations omitted). Petitioner

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points to no case from the United States Supreme Court or the Ninth Circuit Court of

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Appeals recognizing the right to a court-appointed interpreter in a civil proceeding.

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Indeed, as a general matter, the Supreme Court has not recognized a constitutional right

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to a court-appointed interpreter. United States v. Si, 333 F.3d 1041, 1043 n.3 (9th Cir.

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Petitioner’s appeal also asks the Court to “go further” than reversing the decision
of the Magistrate Judge and “declare the denial of access to a law library” and the denial
of the ability to use a “jailhouse lawyer” unconstitutional. (Doc. 31 at 5). Petitioner’s
requests are outside the scope of the appeal and will not be considered.
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2003) (citing Perovich v. United States, 205 U.S. 86, 91 (1907)). While the Ninth Circuit

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has found “that a constitutional right to an interpreter exists in certain situations,” id. at

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1042-1043, 1043 n.3 (citations omitted), these situations arise when a criminal

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defendant’s inability to communicate in English interferes with his Fifth and Sixth

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Amendment rights, or where the defendant lacks the ability to understand the

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proceedings. See Aljibory v. Ryan, No. CV-13-00675-PHX-SRB (SPL), 2014 U.S. Dist.

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LEXIS 33464, at *21-22 (D. Ariz. Feb. 21, 2014) (citations omitted). None of the

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aforementioned circumstances are present in the instant action.

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Turning to applicable statutory authority, nothing in the Court Interpreters Act,

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Title 28 U.S.C. § 1827 (2012), requires that the Court appoint an interpreter at this stage

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of the proceedings. The Court is unaware of any other statutory authority that supports

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Petitioner’s argument. As the Magistrate Judge noted, there is no current “statute

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authorizing the expenditure of public funds for a court-appointed interpreter in a civil

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action.” Gonzalez v. Bopari, 2012 U.S. Dist. LEXIS 178925, at *2 (E.D. Cal. Dec. 17,

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2012). In sum, nothing suggests that the Magistrate Judge committed “clear error” where

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she found that “[t]here is no legal basis on which the federal court should appoint an

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interpreter for this case at this time.” (Doc. 29 at 3).

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Moving beyond the firmity and soundness of the Magistrate Judge’s Order,

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Respondents swore by affidavit that they can “provide the necessary Bosnian translator to

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work with the contract paralegal during her visits with Petitioner Denijal Hrgenic

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regarding CV 14-2251-PHX and related cases.” (Doc. 29 at 3). Petitioner objects, arguing

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that the at-issue affidavit stated that “a certified/qualified paralegal can be obtained,” but

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did not indicate that “an interpreter” could be obtained for him. (Doc. 31 at 3). Petitioner

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is mistaken. The affidavit of Julia Erwin, the Legal Access Monitor for the Arizona

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Department of Corrections, swears that her “office can provide the necessary Bosnian

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translator to work with the contract paralegal” on Petitioner’s cases. (Doc. 27-1 at 2

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(emphasis added)). Respondents further swore that as long as Petitioner submitted Inmate

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Letter, Form 916-1(e)—which Respondents attached to their opposition to Plaintiff’s

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motion—they would be able to provide Petitioner with a Bosnian interpreter. (Id.).

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In light of the aforementioned, the Court finds nothing to indicate that “clear

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error” occurred. The Magistrate Judge explicitly declined to “make any finding” with

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respect to whether Petitioner “speaks only or primarily a language other than the English

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language.” (Doc. 29 at 3). The Magistrate Judge denied Petitioner’s application without

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prejudice, re-urging him to request an interpreter if this action proceeds to an evidentiary

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hearing. Respondents swore that so long as Petitioner submits the proper request form,

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they would be able to provide Petitioner with a Bosnian interpreter, the relief he seeks.

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Respondents provided Petitioner with a copy of the pertinent form. And Petitioner has

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failed to point to any authority establishing that he is entitled to an interpreter as a matter

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of law. See Orozco v. Ryan, No. CV-10-1514-PHX-JAT, 2010 U.S. Dist. LEXIS 93712,

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at *6 (D. Ariz. Aug. 23, 2010) (denying motion for interpreter with permission to re-urge

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if an evidentiary hearing is held in the matter).

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For these reasons, Petitioner’s appeal will be denied, and the Magistrate Judge’s
Order will be affirmed.

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III.

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Based on the foregoing,

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IT IS ORDERED that Petitioner’s appeal is DENIED, (Doc. 31), and Magistrate

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Judge Fine’s Order, (Doc. 29), is AFFIRMED.
Dated this 16th day of August, 2016.

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