Ruiz v. Mobert

Filing 32

ORDER Regarding Plaintiff's 30 Objections to Court's Denial of Equal Protection Rights to Spanish Interpreter, signed by Magistrate Judge Barbara A. McAuliffe on 11/29/17. (Gonzalez, R)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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ROGELIO MAY RUIZ,

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Plaintiff,

ORDER REGARDING PLAINTIFF’S
OBJECTIONS TO COURT’S DENIAL OF
EQUAL PROTECTION RIGHTS TO
SPANISH INTERPRETER

Defendant.

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Case No.: 1:17-cv-00709-AWI-BAM (PC)

(ECF No. 30)

v.
R. MOBERT,

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I.

Plaintiff Rogelio May Ruiz is a state prisoner proceeding pro se and in forma pauperis in

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Introduction

this civil action pursuant to 42 U.S.C. § 1983.
Currently before the Court are Plaintiff’s objections to the Court’s denial of equal

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protection rights to a Spanish interpreter, filed on November 27, 2017. (ECF No. 30.) Plaintiff

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objects to the denial of his request for bilingual, Spanish-speaking appointed counsel to assist him

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with prosecuting this action. Plaintiff contends that the lack of assistance of bilingual counsel

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denies him access to the courts and violates his due process and equal protection rights. Plaintiff

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seeks for the Court’s prior order denying his request for the appointment of bilingual counsel to

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be reconsidered.

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II.

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Notice of Appeal
Previously in this case, Plaintiff filed a motion for a Spanish-speaking interpreter, which

was denied. (ECF No. 8.) Plaintiff then filed objections to that order, specifying that he sought the

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appointment of bilingual, Spanish-speaking counsel to translate for him and represent him in this

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action. (ECF No. 14.) On September 14, 2017, the Court overruled the objections and denied

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Plaintiff’s request for counsel, without prejudice. (ECF No. 17.) On November 13, 2017, Plaintiff

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filed a notice of appeal appealing the Court’s order denying his request for the appointment of

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bilingual, Spanish-speaking counsel. (ECF No. 23.)

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In general, the filing a notice of appeal transfers jurisdiction over the matters appealed to

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the court of appeals, and the district court is divested of jurisdiction over those aspects of the case

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involved in the appeal. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S. Ct.

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400, 74 L. Ed. 2d 225 (1982) (per curiam); Mayweathers v. Newland, 258 F.3d 930, 935 (9th Cir.

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2001). However, a notice of appeal from a non-appealable order will not divest the district court

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of jurisdiction. Estate of Conners by Meredith v. O’Connor, 6 F.3d 656, 658 (9th Cir. 1993);

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United States v. Garner, 663 F.2d 834, 838 (9th Cir. 1981); Ruby v. Secretary of the Navy, 365

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F.2d 385, 389 (9th Cir. 1966) (en banc). “When a Notice of Appeal is defective in that it refers to

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a non-appealable interlocutory order, it does not transfer jurisdiction to the appellate court, and so

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the ordinary rule that the district court cannot act until the mandate has issued on the appeal does

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not apply.” Nascimento v. Dummer, 508 F.3d 905, 908 (9th Cir. 2007).
Here, Plaintiff appeals the Court’s order denying his request for bilingual counsel. The

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denial of his request for counsel was made without prejudice, and is not a final, appealable order

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of the Court. Thus, Plaintiff’s filing of the notice of appeal did not deprive the court of

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jurisdiction to address his current objections and request for reconsideration.

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III.

Request for Reconsideration

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Plaintiff seeks reconsideration of the Court’s order denying him bilingual, Spanish-

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speaking counsel based on his inability to understand, speak, or write in English, and his status as

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a mental health patient. Plaintiff contends that the assistance of bilingual counsel is necessary for

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him to be given a fair chance to obtain relief, and required pursuant to his equal protection and

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due process rights.

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Reconsideration motions are committed to the discretion of the trial court. Rodgers v.
Watt, 722 F.2d 456, 460 (9th Cir. 1983) (en banc). A party seeking reconsideration must set forth
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facts or law of a strongly convincing nature to induce the court to reverse a prior decision. See,

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e.g., Kern-Tulare Water Dist. v. City of Bakersfield, 634 F. Supp. 656, 665 (E.D. Cal. 1986),

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aff’d in part and rev’d in part on other grounds, 828 F.2d 514 (9th Cir. 1987).

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As Plaintiff was previously advised, he does not have a constitutional right to appointed

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counsel in this action, Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), and the Court

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cannot require any attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1), Mallard v.

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United States District Court for the Southern District of Iowa, 490 U.S. 296, 298 (1989).

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However, in certain exceptional circumstances the court may request the voluntary assistance of

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counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525. Without a reasonable method of

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securing and compensating counsel, the Court will seek volunteer counsel only in the most

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serious and exceptional cases. In determining whether “exceptional circumstances exist, the

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district court must evaluate both the likelihood of success on the merits [and] the ability of the

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[plaintiff] to articulate his claims pro se in light of the complexity of the legal issues involved.”

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Id. (internal quotation marks and citations omitted).

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Plaintiff has not demonstrated that the Court committed clear error, or presented the Court

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with new information of a strongly convincing nature, to induce the Court to reverse its prior

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decision. As discussed in the Court’s September 14, 2017 order, the Court previously considered

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Plaintiff’s contentions that he is an inmate with developmental disabilities, is being treated for

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mental health conditions, and that he is unable to read and write in English. Nevertheless, the

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Court found that Plaintiff’s recent submissions had been translated into English. The instant

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objections have also been translated into English, and Plaintiff has submitted a first amended

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complaint written in English concurrently with the instant objections. Thus, the record reflects

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that Plaintiff is receiving assistance sufficient to allow him to prosecute this litigation, and he is

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able to articulate his claims. Plaintiff has not shown anything in the record that makes this case

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“exceptional” or the issues in it particularly complex. Furthermore, at this early stage in the

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litigation, where the Court has not yet screened Plaintiff’s complaint, it cannot make any

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determination that he is likely to succeed on the merits. Therefore, the Court does not find

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sufficient grounds to reconsider its order denying Plaintiff’s request for appointed counsel.
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IV.

Conclusion and Order
For the reasons explained above, Plaintiff’s objections to the Court’s September 14, 2017

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order are HEREBY OVERRULED. Plaintiff’s request for the Court to reconsider its order

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denying the appointment of counsel is denied, without prejudice.

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IT IS SO ORDERED.
Dated:

/s/ Barbara

November 29, 2017

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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