Gomez v. Myers

• Decision Date: 12 November 1985
• Docket Number: Civ. A. No. L-85-188-CA.
• Citation: 627 F. Supp. 183
• Parties: Guillermo GOMEZ v. D. MYERS, et al.
• Court: U.S. District Court — Eastern District of Texas

627 F. Supp. 183

Guillermo GOMEZ v. D. MYERS, et al.

Civ. A. No. L-85-188-CA.

United States District Court, E.D. Texas, Lufkin Division.

November 12, 1985.

Richard S. Fischer, East Texas Legal Services, Nacogdoches, Tex., for plaintiff.

ORDER

JUSTICE, Chief Judge.

Guillermo Gomez, an inmate at the Eastham Unit of the Texas Department of Corrections, filed this civil rights action under 42 U.S.C. § 1983 against state prison officials. Although the prisoner complaint form provided by the Eastern District of Texas is written in English, Gomez stated his claims and requested relief in Spanish. He apparently alleges denial of access both to the courts and to medical care based on a language barrier. Because his pleading in Spanish raises the issue of whether non-English speaking prisoners can gain meaningful access to the courts, the court grants his application to proceed in forma pauperis and will appoint Richard S. Fischer, Esquire, to represent Gomez in his § 1983 action.

I. The Filing of the Complaint

The Clerk of the United States District Court for the Eastern District of Texas originally received the complaint of Gomez on August 26, 1985. In a letter to Gomez, the pro se deputy clerk noted that the form was written in both English and Spanish and asked whether Gomez could complete the entire form in English.¹ A fellow prisoner who had interpreted and prepared the form responded that Gomez could not complete the form in English nor could the letter writer assist Gomez in preparing his complaint in the English language.² The clerk filed the complaint, as originally written, on September 30, 1985.

Neither statutes nor administrative rules provide guidance on whether pleadings must be written in English. While no statute explicitly permits the filing of pleadings written in languages besides English, there also is no federal statute requiring pleadings to be written in English. And the Eastern District of Texas has not adopted a local rule requiring pleadings to be in English or accompanied by an English translation. When an issue is not covered by a rule, the district courts are to regulate their practice in any manner not inconsistent with the Federal Rules of Civil Procedure or local rules. FED.R.CIV.P. 83. The Clerk's acceptance of the complaint of Gomez was permissible, since that action is not inconsistent with any federal or local rule.

More important, the constitutional right of prisoners to access to the courts mandated the acceptance of the pleading in Spanish.³ Gomez apparently could not personally draft a complaint in the English language and could not afford to pay someone else to provide him an English translation. The Supreme Court has eliminated several costs and requirements for filing complaints, appeals, and habeas corpus petitions when financial obstacles prevented indigent prisoners from exercising a constitutional right. See Boddie v. Connecticut, 401 U.S. 371, 91 S.Ct. 780, 28 L.Ed.2d 113 (1971) (state may not deny access to divorce courts solely because of inability to pay); Smith v. Bennett, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (state must waive filing fee when indigent prisoner sues for his liberty under the Great Writ); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (state must provide trial transcripts to prisoners unable to pay for them). A requirement that pleadings be written in English would impose a cost on the indigent prisoner similar to a filing fee, service of process, or transcript.

Moreover, the Supreme Court has expressed concern for regulations that deprive illiterate prisoners of access to the courts. For example, in invalidating a state regulation prohibiting the assistance of jail-house lawyers, the Supreme Court noted that "Tennessee could not constitutionally adopt and enforce a rule forbidding illiterate or poorly educated prisoners to file habeas corpus petitions. But Tennessee had adopted a rule which, in the absence of any other source of assistance, effectively does just that." Johnson v. Avery, 393 U.S. 483, 487, 89 S.Ct. 747, 749, 21 L.Ed.2d 718 (1969). Similarly, the Court opposed the dilution of the constitutional rights of "totally or functionally illiterate" inmates who could not articulate their complaints to the courts. Wolff v. McDonnell, 418 U.S. 539, 579, 94 S.Ct. 2963, 2986, 41 L.Ed.2d 935 (1974). Cf. Cruz v. Hauck, 627 F.2d 710, 721 (5th Cir.1980) (advising trial court to consider whether assistance of legally trained persons was required since library books cannot provide access for those prisoners who do not read and write in English). Just as the rules in Johnson and Wolff and facilities in Cruz may have denied prisoners access to the courts because of their inability to read and write English, a rule forbidding complaints in Spanish would deny access because of illiteracy in the English language. To require all prisoners to file a complaint in English would prevent the filing of any complaint by an indigent, non-English speaking prisoner who has no assistance in drafting his complaint. As a result, an all-English rule would deny prisoners literate in another language, but illiterate in English, the right to seek redress for possible constitutional violations.

If the Clerk had deprived Gomez of his constitutional right of access to the courts by refusing to file his pleading, the Clerk might have been liable under § 1983.⁴ The Court of Appeals for the Fourth Circuit, for example, has found a court clerk liable under § 1983 for impeding the filing of a prisoner petition for state post-conviction relief. McCray v. Maryland, 456 F.2d 1 (4th Cir.1972). Although Gomez filed a civil rights action, the Supreme Court no longer distinguishes between civil rights actions and habeas corpus petitions when assessing the adequacy of prisoners' right of access to the courts. See Bounds v. Smith, 430 U.S. 817, 827, 97 S.Ct. 1491, 1497, 52 L.Ed.2d 72 (1977) (considering what sources of legal knowledge must be provided prisoners who seek release from confinement or vindication of fundamental civil rights); Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) (extending to civil rights actions the standard used in habeas corpus actions for determining the adequacy of legal assistance). See also Andrade v. Hauck, 452 F.2d 1071 (5th Cir.1971) (access of prisoners to courts encompasses both habeas corpus petitions and civil rights actions). When considered in conjunction with those decisions, the McCray opinion suggests that a court clerk would also be liable for impeding the filing of a prisoner's civil rights complaint. Cf. Williams v. Wood, 612 F.2d 982 (5th Cir.1980) (allegations that deputy clerk failed to notify party of entry of final judgment stated a claim under § 1983). As the Fourth Circuit stated: "Of what avail is it to the individual to arm him with a panoply of constitutional rights if, when he seeks to vindicate them, the courtroom door can be hermetically sealed against him by a functionary who, by refusal or neglect, impeded the filing of his papers?" McCray, 456 F.2d at 6.

II. The Cost of Translation

Although this § 1983 action has been filed, the complaint has not been translated or served on defendants. The obstacle to Gomez proceeding with prosecution of his claim is determining who, if anyone, should pay for the costs of translating the complaint and other pleadings.

None of the parties at this time appears liable for payment of costs. By filing his complaint in Spanish and applying to proceed in forma pauperis, Gomez maintains that he cannot afford translation costs. The defendants or their employer, the State of Texas, likewise cannot be expected at this point in the proceedings to pay the cost of translating the claims against them. It would be unfair and a violation of due process to order a defendant in a civil action to pay the plaintiff's litigation costs without affording the defendant an opportunity to oppose their imposition. Otherwise, defendants would be penalized for being sued by indigent, non-English speaking plaintiffs regardless of the merits of the claim.

There is no statutory provision or federal rule authorizing the United States government to pay for the costs of translation in a civil action between private parties. The Court Interpreters Act provides for an interpreter "in any criminal or civil action initiated by the United States in a United States district court (including a petition for writ of habeas corpus initiated in the name of the United States by a relator)." 28 U.S.C. § 1827(d). The Act does not authorize an interpreter in a civil rights action initiated by an indigent state prisoner. The Criminal Justice Act permits counsel for indigent defendants to request experts or other services necessary for an adequate defense, 18 U.S.C. § 3006A(e), but Gomez is not defending against a federal criminal charge. The statutory provision allowing proceedings in forma pauperis authorizes the court to direct payment only for the expenses of preparing a transcript, 28 U.S.C. § 1915(b), printing a record on appeal, id., or serving process, § 1915(c). And courts have restricted the meaning of "fees and costs" which may be waived under § 1915(a) to the ordinary fees and charges of officers of the court, McClure v. Salvation Army, 51 F.R.D. 215, 216 (N.D.Ga.1971), which does not include the cost of translation.⁵ The Civil Rights Attorney's Fees Awards Act of 1976, 42 U.S.C. § 1988, also offers no help for payment of costs prior to a judgment since a party must prevail before receiving a fee under it. Finally, Rule 43(f) of the Federal Rules of Civil Procedure provides for the appointment of an interpreter at trial, but fails to extend that authority to pre-trial preparation. Therefore, in absence of statutory authority, the Clerk cannot be ordered to pay for the costs of translating pleadings from a foreign language to the English language.

While no one at...