Edenstrom v. United States Coast Guard

Filing 10

ORDER Denying Plaintiff's Motion for Court Appointed Counsel, signed by Judge Ronald B. Leighton. (Copy mailed to Pltf @ Olympia address.)(DK)

HONORABLE RONALD B. LEIGHTON

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UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT TACOMA

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THEODORE B. EDENSTROM,

CASE NO. C17-5658RBL

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Plaintiff,
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v.

ORDER DENYING PLAINTIFF’S
MOTION FOR COURT APPOINTED
COUNSEL

UNITED STATES COAST GUARD,
Defendant.

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THIS MATTER is before the Court on Plaintiff’s Application for Court Appointed

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Counsel [Dkt. #8]. In his Complaint [Dkt. #5], plaintiff seeks an order restraining the Coast

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Guard from using an Administrative Subpoena to obtain medical records for licensing purposes

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by the hearing authority towit: the United States Coast Guard. The Coast Guard does have the

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authority to issue an investigatory subpoena and use a seaman’s medical records against him.

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“To legally work aboard a United States merchant marine vessel, individuals must receive a

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merchant mariner credential (“MMC”) from the National Maritime Center (“NMC”), the

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licensing authority of the United States Coast Guard.” Clifford v. United States Coast Guard,

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915 F.Supp2d. 299, 303 (E.D.N.Y. 2013).

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ORDER DENYING PLAINTIFF’S MOTION FOR
COURT APPOINTED COUNSEL - 1

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Coast Guard investigators are granted subpoena authority by law and regulation. “An

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official designated to investigate . . . matters that are grounds for suspension or revocation of

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licenses, certificates of registry, and merchant mariners’ documents may administer oaths and

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issue subpoenas to compel the attendance and testimony of witnesses and the production of records

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or other evidence during investigations and at hearings.” 46 U.S.C. § 7705(a); see also 46 C.F.R.

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§ 5.5.301(b). An investigation into possible misrepresentation of a mariner’s physical fitness in

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the renewal process is clearly within that authority. In any event, the person to whom the subpoena

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was directed complied with it, and Coast Guard Regulations make clear that only the subpoenaed

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person may move to quash. See 46 C.F.R. § 5.305; 33 C.F.R. § 20.609(a). Moreover, “Coast

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Guard case law precedent holds that the Exclusionary Rule does not apply to Suspension and

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Revocation proceedings. See Appeal Decisions 2625 (ROBERTSON) (2002), 2297 (FOEDISCH)

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(1983) AND 2135 (FOSSANI) (1978).” Appeal Decision 2704 (FRANKS) (2014).

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Under the facts known by the Court, there is no good reason to appoint counsel at taxpayer

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expense. No constitutional right to counsel exists for an indigent plaintiff in a civil case unless the

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plaintiff may lose his physical liberty if he loses the litigation. See Lassiter v. Dept. of Social Servs.,

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452 U.S. 18, 25 (1981). However, pursuant to 28 U.S.C. § 1915(e)(1), the Court has the discretion

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to appoint counsel for indigent litigants who are proceeding IFP. United States v. $292,888.04 in

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U.S. Currency, 54 F.3d 564, 569 (9th Cir. 1995).

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The Court will appoint counsel only under “exceptional circumstances.” Id.; Wilborn v.

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Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986). “A finding of exceptional circumstances requires

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an evaluation of both the likelihood of success on the merits and the ability of the plaintiff to

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articulate his claims pro se in light of the complexity of the legal issues involved.” Wilborn, 789

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ORDER DENYING PLAINTIFF’S MOTION FOR
COURT APPOINTED COUNSEL - 2

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F.2d at 1331 (internal quotations omitted). These factors must be viewed together before reaching

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a decision on whether to appoint counsel under § 1915(e)(1). Id.

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The Application [Dkt. #8] is DENIED.

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Dated this 2nd day of February, 2018.

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A

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Ronald B. Leighton
United States District Judge

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ORDER DENYING PLAINTIFF’S MOTION FOR
COURT APPOINTED COUNSEL - 3