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)

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

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