Turner v. Smith et al

Filing 7

ORDER by Judge Charles R. Breyer denying 2 Motion for TRO; granting 3 Motion for Leave to Proceed in forma pauperis; denying 4 Motion to Appoint Counsel. (crblc2, COURT STAFF) (Filed on 10/26/2011)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

United States District Court
For the Northern District of California

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No. C 11-05176 CRB

STEPHEN B. TURNER,

ORDER DENYING TRO AND
SETTING BRIEFING SCHEDULE

Plaintiff,
v.
MELODY SMITH, ET AL.,
Defendants.

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Plaintiff Stephen B. Turner filed a Complaint and request for temporary restraining

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order against various parole officials alleging violations of 42 U.S.C. § 1983 and several state

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laws on October 24, 2011. Dkt. 1, 2. While there may be some merit to Plaintiff’s claims,

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Plaintiff has not demonstrated a clear likelihood of success on the merits sufficient to support

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the extraordinary remedy of a temporary restraining order at this time. Winter v. Natural

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Res. Def. Council, Inc., 555 U.S. 7, 20 (2008). Moreover, it appears that the bulk of

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Plaintiff’s grievances, his alleged mis-characterization as a high risk sex offender, and the

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onerous parole conditions such a classification entails, have been in place in great part since

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at least January 6, 2010. This serious delay in seeking injunctive relief implies a lack of

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urgency and irreparable harm, and weighs against the propriety of such relief. Miller ex rel.

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NLRB v. Cal. Pac. Med. Ctr., 991 F.2d 536, 544 (9th Cir. 1993); Lydo Enters. v. City of Las

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Vegas, 745 F.2d 1211, 1213 (9th Cir. 1984).

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Thus, the Court DENIES the temporary restraining order. The Court notices a hearing

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on the motion for preliminary injunction for Friday, December 2, 2011. Defendants’

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Response is due Friday, November 18, 2011. Plaintiff’s Reply is due Monday, November

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28, 2011, due to the Court holiday on Friday, November 25, 2011.

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Further, Plaintiff is ORDERED to serve copies of the following documents on

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Defendants forthwith: (1) this Order; (2) the Complaint; and (3) the Motion for Temporary

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Restraining Order and Preliminary Injunction and the Memorandum in Support.

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Plaintiff’s Motion for leave to proceed in forma pauperis is GRANTED.

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There is no constitutional right to counsel in a civil case unless an indigent litigant

United States District Court
For the Northern District of California

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may lose his physical liberty if he loses the litigation. See Lassiter v. Dep’t of Social Servs.,

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452 U.S. 18, 25 (1981); Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), reh’g en

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banc on other grounds, 154 F.3d 952 (9th Cir. 1998). Plaintiff claims he is indigent, but he

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will not lose his physical liberty if he loses the litigation. Nonetheless, district courts have

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discretion, pursuant to 28 U.S.C. § 1915(e)(1), to appoint counsel for indigent civil litigants

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upon a showing of exceptional circumstances. See Terrell v. Brewer, 935 F.2d 1015, 1017

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(9th Cir. 1991). Counsel should only be appointed in exceptional circumstances, based on

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such factors as the likelihood of success on the merits and the ability of the plaintiff to

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articulate his claims in light of their complexity. See Wood v. Housewright, 900 F.2d 1332,

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1335 (9th Cir. 1990). Here, for the reasons stated above, there is not a strong likelihood of

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success on the merits and this stage. Plaintiff also has a fair job of articulating his claims.

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Plaintiff’s Motion to Appoint Counsel is DENIED without prejudice at this time.

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IT IS SO ORDERED.

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CHARLES R. BREYER
UNITED STATES DISTRICT JUDGE

Dated: October 26, 2011

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