Tice v. Adger et al

Filing 74

OPINION AND ORDER denying Plaintiff's 73 request for appointment of counsel to file a new case. Signed by Honorable Cameron McGowan Currie on 10/12/2017. (bgoo)

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IN THE UNITED STATES DISTRICT COURT DISTRICT OF SOUTH CAROLINA COLUMBIA DIVISION Joseph Charles Tice, C/A No. 3:15-4781-CMC Plaintiff, v. OPINION AND ORDER Jerry B. Adger, Head Probation Officer; Lisa Baker, Probation Officer, Defendants. Joseph Charles Tice (“Plaintiff”), proceeding pro se and in forma pauperis, brought this action against Jerry B. Adger, Head Probation Officer (“Adger”), and Lisa Baker, Probation Officer (“Baker”), (collectively “Defendants”) claiming a violation of his constitutional rights pursuant to 42 U.S.C. § 1983. ECF No. 1. Defendants filed motions for summary judgment. ECF Nos. 20, 44. The Magistrate Judge recommended granting both motions for summary judgment based on qualified and Eleventh Amendment immunity. ECF No. 62. The court adopted the Report of the Magistrate Judge, granted Defendants’ motions for summary judgment, and dismissed the matter with prejudice. ECF No. 70. Plaintiff has now written the court, citing Duffy v. Riveland, 98 F.3d 447, 452 (9th Cir. 1996) for the holding the Americans with Disabilities Act and Rehabilitation Act abrogated Eleventh Amendment immunity. Plaintiff notes he suffers from schizophrenia and therefore has a disability. However, Plaintiff did not bring his case under the Americans with Disabilities Act or the Rehabilitation Act, but rather under § 1983. Congress has not abrogated Eleventh Amendment immunity for § 1983 cases. Will v. Michigan Dept. of State Police, 491 U.S. 58, 70 (1989) (“Section 1983 provides a federal forum to remedy many deprivations of civil liberties, but it does not provide a federal forum for litigants who seek a remedy against a State for alleged deprivations of civil liberties . . . We cannot conclude that § 1983 was intended to disregard the well-established immunity of a State from being sued without its consent.”). Plaintiff also requests appointment of counsel so he can file a new case for the alleged violations of his Constitutional rights. However, as noted by the Magistrate Judge earlier in the case, there is no right to appointment of counsel in § 1983 cases. Hardwick v. Ault, 517 F. 2d 295 (5th Cir. 1975). Therefore, Plaintiff’s request for appointment of counsel to file a new case is denied. IT IS SO ORDERED. s/ Cameron McGowan Currie CAMERON MCGOWAN CURRIE Senior United States District Judge Columbia, South Carolina October 12, 2017 2

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