Turner v. United States Department of the Treasury

Filing 19

ORDER DENYING 18 Motion to Appoint Counsel. Order signed by Magistrate Judge Sheila K. Oberto on 10/2/2015. (Timken, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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BRUCE ERVIN TURNER,

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Plaintiff,

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Case No. 1:15-cv-00007-LJO-SKO
ORDER DENYING MOTION FOR
APPOINTMENT OF COUNSEL

v.

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(Doc. 18)
U.S. DEPARTMENT OF THE TREASURY,
Financial Crimes Enforcement Network,
Defendant.
_____________________________________/

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I.

INTRODUCTION

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Plaintiff Bruce Ervin Turner (“Plaintiff”), proceeding pro se and in forma pauperis, filed
this action under the Freedom of Information Act ("FOIA") on January 1, 2015. (Doc. 1.) On
May 21, 2015, Plaintiff filed a motion requesting the appointment of counsel pursuant to
28 U.S.C. § 1915(e)(1), which was denied. (Docs. 9, 10.) On September 21, 2015, Plaintiff again
filed a motion for the appointment of counsel. (Doc. 18.) For the reasons set forth below,
Plaintiff's motion for appointment of counsel is DENIED.

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II.

DISCUSSION

Plaintiff contends that counsel should be appointed because he is unable to afford an

3 attorney, and his imprisonment will disadvantage him in litigating his case. (Doc. 18, 1-2.)
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Plaintiff does not have a constitutional right to the appointment of counsel in this action.

5 Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009); Storseth v. Spellman, 654 F.2d 1349, 1353
6 (9th Cir. 1981); see also Turner v. Rogers, 131 S.Ct. 2516-17 (2011) (constitutional right to
7 appointment of counsel, sometimes referred to as a “Civil Gideon,” is limited to criminal cases
8 and criminal contempt proceedings). The Court may request the voluntary assistance of counsel
9 pursuant to 28 U.S.C. § 1915(e)(1), but it will do so only if exceptional circumstances exist.
10 Palmer, 560 F.3d at 970; Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). In making
11 this determination, the Court must evaluate the likelihood of success on the merits and the ability
12 of Plaintiff to articulate his claims pro se in light of the complexity of the legal issues involved.
13 Palmer, 560 F.3d at 970 (citation and quotation marks omitted); Wilborn, 789 F.2d at 1331.
14 Neither consideration is dispositive and they must be viewed together. Palmer, 560 F.3d at 970
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As stated in the May 2015 order denying counsel, the Court does not find the required

17 exceptional circumstances to warrant appointment of counsel. Even assuming Plaintiff is not well
18 versed in the law and that he has set forth allegations which, if proven, would entitle him to relief,
19 his case is not exceptional. The Court is faced with similar cases almost daily. Further, at this
20 stage in the proceedings, the Court cannot make a determination that Plaintiff is likely to succeed
21 on the merits, and based on a review of the record in this case, the Court does not find that
22 Plaintiff is unable to adequately articulate his claims. Palmer, 560 F.3d at 970.
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While the Court recognizes that Plaintiff is at a disadvantage due to his pro se status, the

24 test is not whether Plaintiff would benefit from the appointment of counsel. See Wilborn, 789 F.2d
25 at 1331 (“Most actions require development of further facts during litigation and a pro se litigant
26 will seldom be in a position to investigate easily the facts necessary to support the case.”) The test
27 is whether exceptional circumstances exist and here, they do not; the record in this case
28 demonstrates that Plaintiff is capable of articulating his claims.
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III.

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CONCLUSION AND ORDER

For the foregoing reasons, IT IS HEREBY ORDERED that Plaintiff’s request for

3 appointment of counsel is DENIED.
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IT IS SO ORDERED.

6 Dated:

October 2, 2015

/s/ Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE

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