Tuesday, December 7, 2004
Ninth Circuit: Jailed Immigrant Plaintiff Was Entitled to Appointed Counsel
By a MetNews Staff Writer
A federal magistrate judge in Arizona should have appointed a lawyer to represent an incarcerated immigrant suing a private jailer over his treatment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
It was an abuse of discretion not to name counsel under 28 U.S.C. Sec. 1915(e)(1) for Emmanuel Senyo Agyeman in his civil rights suit, Senior Judge John T. Noonan said. The native of Ghana was detained by immigration authorities in 1997 after his request for an adjustment of status based on his marriage to a U.S. citizen was denied.
He was held at a variety of correctional facilities, included one operated by a private contractor, Corrections Corporation of America. In his lawsuit, he contended he was shackled, bound and beaten by CCA employees while being transported for medical treatment in 1998.
After a trial at which he represented himself, a jury rejected his claims. The Ninth Circuit appointed a lawyer to represented him in his appeal and yesterday vacated the judgment resulting from the trial.
Noonan acknowledged that the while Sec. 1915(e)(1) authorizes the appointment of attorneys for indigent civil litigants, the Ninth Circuit held in 1984 in Franklin v. Murphy, 745 F.2d 1221, that federal trial courts have broad discretion to decide when to do so. Franklin also held they should do so only under “exceptional circumstances,” Noonan observed.
But the judge cited Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir. 1986), for the proposition that one factor to be considered in evaluating the need for appointed counsel is the complexity of the contemplated litigation.
The suit Agyeman sought to prosecute, Noonan said, “had a triple complexity.” In addition to trying to hold a private company liable for prisoner abuse and sue its individual employees, the judge noted, the plaintiff needed to address the issue of whether his status as an immigration detainee “enhanced his rights beyond those of an ordinary criminal prisoner.”
Agyeman, Noonan explained, was under the misconception that he could proceed against the individual CCA corrections officers under 42 U.S.C. Sec. 1983 as if they were state employees, while in fact their liability could only be predicated on Bivens v. Six Unknown Fed. Narcotics Agents, 403 U.S. 388 (1971). The corporation itself, however, could not be subjected to liability under Bivens, as Agyeman sought to do, Noonan said; instead, Agyeman should have sued the United States under the Federal Tort Claims Act and sought to join CCA as a defendant.
The plaintiff never succeeded in gaining access to the federal regulations which, on appeal, CCA argued governed his treatment at the time of the alleged incident, Noonan added.
Even if Agyeman had won at trial, Noonan said, the verdict would have been overturned based on the legal flaws in his complaint.
“Agyeman, it is obvious from his pleadings, is literate and educated,” Noonan wrote. “He was able to read statutes and legal literature. But he lacks legal training. As is evident from the record, a lawyer attentive to differences would have noticed that Agyeman should have sued the employees under Bivens, and the United States and the corporation under the Federal Tort Claims Act. Instead, he was left to articulate a case where, if he had prevailed before the jury, the defendants would have successfully moved for judgment as a matter of law on the ground that they could not be sued as state actors. Without gaining access to the federal prison regulations, Agyeman could not establish that the treatment he alleged that he received was or was not contrary to what was required by the United States as to noncriminal detainees. Without a lawyer,
Agyeman not only did not think of obtaining this information but did not advance any coherent theory for subjecting Corrections Corporation to liability.”
The judge continued:
“His case, in short, was complex. The circumstances were exceptional. The magistrate judge who ruled on Agyeman’s request for counsel knew very little of the likelihood of his success on a claim that had not been properly framed.”
In addition to ascertaining a viable basis for liablility, a lawyer might have been able to exploit the “anomaly of incarcerating a person on noncriminal charges and confining him for seven years,” Noonan suggested.
“Such incarceration may be a cruel necessity of our immigration policy; but if it must be done, the greatest care must be observed in not treating the innocent like a dangerous criminal. Is there any warrant for shackling the feet and binding the chest of an innocent detainee? It requires legal skill to frame this issue and distinguish Agyeman’s case from that of the ordinary transferee—.”
Judge Sidney R. Thomas and Senior Judge Betty B. Fletcher concurred.
The case is Agyeman v. Corrections Corporation of America, 03-16068.
Copyright 2004, Metropolitan News Company