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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WO 1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA 8 9 Denijal Hrbenic, No. CV-14-02251-PHX-JAT (DMF) Petitioner, 10 11 v. 12 ORDER Charles L Ryan, et al., 13 Respondents. 14 15 Pending before the Court is an appeal from Magistrate Judge Fine’s July 18, 2016, 16 Order denying Petitioner Denijal Hrbenic’s Motion for Interpreter Services. (Doc. 29). 17 The Magistrate Judge denied Petitioner’s motion on two grounds, finding that (1) there 18 was no legal basis entitling Petitioner to an interpreter at this stage of the proceedings, 19 and that (2) Respondents had agreed to provide Petitioner with a Bosnian interpreter if he 20 filed the correct paperwork. (Id. at 2-3). Having reviewed Petitioner’s filing, the Court 21 now rules on the appeal. 22 23 I. 24 For purposes of adjudicating the pending appeal, the Court need not set forth the 25 factual allegations underlying Petitioner’s filing for a Writ of Habeas Corpus. It is 26 sufficient to note that on August 1, 2016, Petitioner appealed from the Magistrate Judge’s 27 Order denying his motion to appoint a Bosnian interpreter, asserting generally that he has 28 1 a constitutional right to an interpreter in these proceedings.1 (Doc. 31). 2 3 II. 4 “A district court may refer a pretrial matter to a magistrate to ‘hear and 5 determine,’ and may review the magistrate’s order ‘where it has been shown that the 6 magistrate’s order is clearly erroneous or contrary to law.’” Title 28 U.S.C. § 7 636(b)(1)(A) (2012); Barten v. State Farm Mut. Auto. Ins. Co., No. CZV-12-0399-TUC- 8 CKJ, 2014 U.S. Dist. LEXIS 133569, at *10 (D. Ariz. Sept. 23, 2014) (quoting Doe v. 9 Kamehameha Schools/Bernice Pauahi Bishop Estate, 596 F.3d 1036, 1041 (9th Cir. 10 2010)). Stated in other terms, the Court reviews an appeal from the Magistrate Judge’s 11 decision “for clear error.” Maisonville v. F2 America, Inc., 902 F.2d 746, 747 (9th Cir. 12 1990) (citations omitted). Under this standard of review, the Magistrate Judge’s decision 13 is “not subject to de novo determination,” and the Court “may not simply substitute its 14 judgment for that of the deciding court.” Grimes v. City and Cnty. of San Francisco, 951 15 F.2d 236, 241 (9th Cir. 1991). Clear error is present when the Court is “left with the 16 definite and firm conviction that a mistake has been committed.” Easley v. Cromartie, 17 532 U.S. 234, 242 (2001). 18 19 III. 20 “It is well settled that habeas corpus is a civil proceeding.” Browder v. Director, 21 Dep’t of Corrections of Illinois, 434 U.S. 257, 269 (1978) (citations omitted). Petitioner 22 points to no case from the United States Supreme Court or the Ninth Circuit Court of 23 Appeals recognizing the right to a court-appointed interpreter in a civil proceeding. 24 Indeed, as a general matter, the Supreme Court has not recognized a constitutional right 25 to a court-appointed interpreter. United States v. Si, 333 F.3d 1041, 1043 n.3 (9th Cir. 26 1 27 28 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. -2- 1 2003) (citing Perovich v. United States, 205 U.S. 86, 91 (1907)). While the Ninth Circuit 2 has found “that a constitutional right to an interpreter exists in certain situations,” id. at 3 1042-1043, 1043 n.3 (citations omitted), these situations arise when a criminal 4 defendant’s inability to communicate in English interferes with his Fifth and Sixth 5 Amendment rights, or where the defendant lacks the ability to understand the 6 proceedings. See Aljibory v. Ryan, No. CV-13-00675-PHX-SRB (SPL), 2014 U.S. Dist. 7 LEXIS 33464, at *21-22 (D. Ariz. Feb. 21, 2014) (citations omitted). None of the 8 aforementioned circumstances are present in the instant action. 9 Turning to applicable statutory authority, nothing in the Court Interpreters Act, 10 Title 28 U.S.C. § 1827 (2012), requires that the Court appoint an interpreter at this stage 11 of the proceedings. The Court is unaware of any other statutory authority that supports 12 Petitioner’s argument. As the Magistrate Judge noted, there is no current “statute 13 authorizing the expenditure of public funds for a court-appointed interpreter in a civil 14 action.” Gonzalez v. Bopari, 2012 U.S. Dist. LEXIS 178925, at *2 (E.D. Cal. Dec. 17, 15 2012). In sum, nothing suggests that the Magistrate Judge committed “clear error” where 16 she found that “[t]here is no legal basis on which the federal court should appoint an 17 interpreter for this case at this time.” (Doc. 29 at 3). 18 Moving beyond the firmity and soundness of the Magistrate Judge’s Order, 19 Respondents swore by affidavit that they can “provide the necessary Bosnian translator to 20 work with the contract paralegal during her visits with Petitioner Denijal Hrgenic 21 regarding CV 14-2251-PHX and related cases.” (Doc. 29 at 3). Petitioner objects, arguing 22 that the at-issue affidavit stated that “a certified/qualified paralegal can be obtained,” but 23 did not indicate that “an interpreter” could be obtained for him. (Doc. 31 at 3). Petitioner 24 is mistaken. The affidavit of Julia Erwin, the Legal Access Monitor for the Arizona 25 Department of Corrections, swears that her “office can provide the necessary Bosnian 26 translator to work with the contract paralegal” on Petitioner’s cases. (Doc. 27-1 at 2 27 (emphasis added)). Respondents further swore that as long as Petitioner submitted Inmate 28 Letter, Form 916-1(e)—which Respondents attached to their opposition to Plaintiff’s -3- 1 motion—they would be able to provide Petitioner with a Bosnian interpreter. (Id.). 2 In light of the aforementioned, the Court finds nothing to indicate that “clear 3 error” occurred. The Magistrate Judge explicitly declined to “make any finding” with 4 respect to whether Petitioner “speaks only or primarily a language other than the English 5 language.” (Doc. 29 at 3). The Magistrate Judge denied Petitioner’s application without 6 prejudice, re-urging him to request an interpreter if this action proceeds to an evidentiary 7 hearing. Respondents swore that so long as Petitioner submits the proper request form, 8 they would be able to provide Petitioner with a Bosnian interpreter, the relief he seeks. 9 Respondents provided Petitioner with a copy of the pertinent form. And Petitioner has 10 failed to point to any authority establishing that he is entitled to an interpreter as a matter 11 of law. See Orozco v. Ryan, No. CV-10-1514-PHX-JAT, 2010 U.S. Dist. LEXIS 93712, 12 at *6 (D. Ariz. Aug. 23, 2010) (denying motion for interpreter with permission to re-urge 13 if an evidentiary hearing is held in the matter). 14 15 For these reasons, Petitioner’s appeal will be denied, and the Magistrate Judge’s Order will be affirmed. 16 III. 17 18 Based on the foregoing, 19 IT IS ORDERED that Petitioner’s appeal is DENIED, (Doc. 31), and Magistrate 20 21 Judge Fine’s Order, (Doc. 29), is AFFIRMED. Dated this 16th day of August, 2016. 22 23 24 25 26 27 28 -4-

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