Turner v. McDonough
- Andrew Krause
- 7:18-cv-04038
- U.S. District Court · Southern District of New York
- 4
In Ronald G. Turner v. Robert L. Wilkie, Judge Smith granted Turner’s request for volunteer counsel in his employment-discrimination case.
Ronald G. Turner’s request for volunteer counsel was granted, but the order did not decide the merits of his discrimination claims. The court denied fee-free appeal status for an appeal from this order.
What happened
Ronald G. Turner v. Robert L. Wilkie concerns Turner’s claims that he was discriminated against when he applied unsuccessfully for a supervisor position. He brought claims under Title VII and the New York State Human Rights Law.
Turner had previously received limited volunteer legal help for mediation and depositions. After the court partly granted and partly denied the defendant’s summary-judgment motion, Turner renewed his request for counsel and confirmed that his financial situation had not changed.
Judge Lisa Margaret Smith granted Turner’s request for the court to seek volunteer counsel. The court found that his remaining discrimination claim was likely substantial and that trial tasks such as questioning witnesses and introducing documents would benefit from an experienced lawyer. The court also denied fee-free appeal status for any appeal from this order.
The detailed version
- Turner v. McDonough · No. 7:18-cv-04038
- Andrew Krause
- Sept. 10, 2020
Background
Ronald G. Turner asserted claims under Title VII and the New York State Human Rights Law, alleging discrimination when he applied for a supervisor position and was not hired. The opinion states that the court had previously granted Turner permission to proceed without paying filing fees and had initially denied his request for counsel. Turner later received limited volunteer legal representation for mediation, to defend his deposition, and to conduct two fact depositions.
After the court issued an order partly granting and partly denying the defendant’s motion for summary judgment, Turner renewed his request for the court to seek counsel. He orally confirmed that his financial status had not changed. The court therefore found that he qualified as unable to afford counsel.
Legal standard
Under 28 U.S.C. § 1915(e)(1), a court may request—but cannot require or pay for—an attorney to volunteer for a civil litigant who cannot afford counsel. The court applied factors identified by the Second Circuit in Hodge v. Police Officers, including whether the claim appears likely to have substance, the litigant’s ability to investigate and present the case, the need for witness questioning, the complexity of the legal issues, and whether counsel would likely lead to a fairer result.
Court’s analysis
The court found that Turner’s remaining discrimination claim was “likely to be of substance.” Although the summary-judgment ruling relied substantially on indirect evidence, the court concluded that enough evidence existed for the case to continue.
The court also found that the other relevant factors favored requesting counsel. Turner had shown some ability to litigate by opposing the summary-judgment motion, which was partly successful. But the court determined that the case would require experience with questioning witnesses, admitting documents under the Federal Rules of Evidence, and other trial skills that Turner did not have. The court also stated that experienced counsel could provide useful guidance about possible settlement and could help produce a quicker and fairer result.
Ruling
Judge Lisa Margaret Smith granted Turner’s application for the court to request volunteer counsel. The court warned that there was no government funding for counsel in civil cases, that a volunteer might not be found, and that Turner should be prepared to continue without a lawyer. The court also stated that any volunteer attorney would contact Turner directly and that Turner could decide whether to retain that attorney.
Finally, the court certified under 28 U.S.C. § 1915(a)(3) that an appeal from this order would not be taken in good faith and denied permission to proceed without paying fees for purposes of an appeal.
Read the full 4-page opinion on CourtListener, the free public archive maintained by the Free Law Project.