Turner v. High Desert State Prison et al

Filing 41

ORDER Denying 38 Plaintiff's Motion to Appoint Counsel. Signed by Magistrate Judge Cam Ferenbach on 6/27/2014. (Copies have been distributed pursuant to the NEF - EDS)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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***

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JOHN TURNER,
Plaintiff,

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vs.

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2:13-cv-01740-JAD-VCF

HIGH DESERT STATE PRISON, et al.,

ORDER
Motion for Appointment of Counsel (#38)

Defendants.

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Before the court is Plaintiff’s Motion for Appointment of Counsel (#38)1 to represent him in his

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civil rights action under 42 U.S.C. § 1983. For the reasons discussed below, Plaintiff’s Motion for

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Appointment of Counsel is denied.

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I.

Background

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This matter involves Plaintiff’s federal civil rights action under 42 U.S.C. § 1983.

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(See #1-1). Plaintiff’s complaint alleges that prison officials removed a total of $75 from his inmate trust

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account after two separate altercations in which Plaintiff participated. (#1-1 at 3). Plaintiff claims that he

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sought no medical attention following the altercations and that he did not authorize the removal of the

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funds from his account. (#1-1 at 4). The case failed to resolve at inmate early mediation and Plaintiff

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now requests counsel to represent him with this matter. (#38 at 4).

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II.

Legal Standard

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“The Sixth Amendment grants an indigent criminal defendant the right to counsel . . . but does

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not govern civil cases.” Turner v. Rogers, 131 S. Ct. 2507, 2510 (2011). In the civil sphere, “[t]he court

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may appoint counsel . . . only under ‘exceptional circumstances.’” Terrell v. Brewer, 935 F.2d 1015,

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Parenthetical citations refer to the court’s docket.
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1017 (9th Cir. 1991). “A finding of exceptional circumstances requires an evaluation of both the

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likelihood of success on the merits and the ability of the petitioner to articulate his claims pro se in light

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of the complexity of the issues involved. Neither of these factors is dispositive and both must be viewed

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together before reaching a decision.” Id. (citing Wilburn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.

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1986)). The burden rests upon the Plaintiff to demonstrate that this standard has been met. See Rand v.

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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), op. reinstated in pertinent part, 154 F.3d 952, 954 n. 1

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(9th Cir. 1998) (en banc).

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III.

Analysis

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In support of his motion, Plaintiff states that appointment of counsel would be appropriate

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because he is physically impaired due to the amputation of his thumb, he does not have full access to the

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prison’s law library, the law library and prison mailing systems are inadequate, and Plaintiff has not

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previously seen a motion to dismiss. (#38 at 4, 6-7). Plaintiff’s motion fails to satisfy the above legal

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standard for court appointed counsel for four reasons. First, Plaintiff fails to argue that he will succeed

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on the merits of his case. (See #38). Second, Plaintiff’s allegations of theft of $75 from his inmate trust

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account do not equate to complex legal issues, which require a lawyer trained in “banking and trust

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accounts” as Plaintiff asserts. (#38 at 5). Second, Plaintiff provides copies of the Notice of Charges with

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his motion, indicating that he has access to the evidence in this case. (#38 at 10-13). Finally, although

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his paperwork is not of the quality that would be produced by a lawyer, Plaintiff has drafted a legible

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and sufficiently articulate motion. (See #38). These documents demonstrate that Plaintiff is capable of

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adequately articulating his claims. As such, Plaintiff has failed to demonstrate that his case meets the

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Ninth Circuit’s exceptional circumstances requirement for appointment of counsel in a civil matter.

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ACCORDINGLY, and for good cause shown,

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IT IS ORDERED that Plaintiff’s Motion to Appoint Counsel (#38) is DENIED.

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IT IS SO ORDERED.

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NOTICE

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Pursuant to Local Rules IB 3-1 and IB 3-2, a party may object to orders and reports and

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recommendations issued by the magistrate judge. Objections must be in writing and filed with the Clerk

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of the Court within fourteen days. LR IB 3-1, 3-2. The Supreme Court has held that the courts of appeal

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may determine that an appeal has been waived due to the failure to file objections within the specified

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time. Thomas v. Arn, 474 U.S. 140, 142 (1985). This circuit has also held that (1) failure to file

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objections within the specified time and (2) failure to properly address and brief the objectionable issues

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waives the right to appeal the District Court's order and/or appeal factual issues from the order of the

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District Court. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991); Britt v. Simi Valley United Sch.

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Dist., 708 F.2d 452, 454 (9th Cir. 1983).

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Pursuant to Local Special Rule 2-2, the Plaintiff must immediately file written notification with

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the court of any change of address. The notification must include proof of service upon each opposing

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party of the party’s attorney. Failure to comply with this Rule may result in dismissal of the action.

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See LSR 2-2.

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DATED this 27th day of June, 2014.

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_________________________
CAM FERENBACH
UNITED STATES MAGISTRATE JUDGE

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