McElroy v. Gustafson et al

Filing 103

ORDER signed by Magistrate Judge Edmund F. Brennan on 08/25/15 ordering plaintiff's request for a summons 97 is denied. Plaintiff's request for appointment of counsel 100 is denied. Plaintiff shall file a pretrial statement within 30 days from the date of this order. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LATHAHN McELROY,

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No. 2:12-cv-1518-TLN-EFB P

Plaintiff,
v.

ORDER

GUSTAFSON,
Defendant.

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Plaintiff is a state prisoner proceeding without counsel in an action brought under 42

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U.S.C. § 1983. On June 2, 2015, the court directed plaintiff to file a pretrial statement. ECF No.

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91. Despite being granted an extension of time (ECF No. 96), he has failed to comply with that

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order. Instead, plaintiff has filed a request for a telephonic appearance (ECF No. 95), a request

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for a “couple of standard forms of summons” (ECF No. 97), a motion to file a supplemental

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complaint (ECF No. 98), and a motion to appoint counsel (ECF No. 100). The court previously

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denied the motion for a telephonic appearance (ECF No. 96) and will address the motion to

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supplement in due course. For the reasons stated below, the request for a summons and the

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request for appointment of counsel are denied. Plaintiff will also be given one final opportunity

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to file a pretrial statement.

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The court previously issued a summons in this case to effectuate service of process on

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defendants. ECF No. 5. There are no additional defendants to be served and no basis for the

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issuance of another summons in this case. See Fed. R. Civ. P. 4. Plaintiff’s request is denied.
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Plaintiff requests that the court appoint counsel. District courts lack authority to require

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counsel to represent indigent prisoners in section 1983 cases. Mallard v. United States Dist.

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Court, 490 U.S. 296, 298 (1989). In exceptional circumstances, the court may request an attorney

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to voluntarily to represent such a plaintiff. See 28 U.S.C. § 1915(e)(1); Terrell v. Brewer, 935

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F.2d 1015, 1017 (9th Cir. 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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When determining whether “exceptional circumstances” exist, the court must consider the

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likelihood of success on the merits as well as the ability of the plaintiff to articulate his claims pro

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se in light of the complexity of the legal issues involved. Palmer v. Valdez, 560 F.3d 965, 970

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(9th Cir. 2009). Having considered those factors, the court finds there are no exceptional

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circumstances in this case.
The extended deadline for filing a pretrial statement has passed, and plaintiff has failed to

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comply with or otherwise respond to the court’s most recent order.1 Despite the court’s June 2,

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2015 warning that failure to file a pretrial statement could result in dismissal, and ample time

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within which to prepare and file a pretrial statement, plaintiff has disobeyed this court’s order.

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Within thirty days of the date of this order, plaintiff shall file and serve a pretrial statement and

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any motions necessary to obtain the attendance of witnesses at trial. Absent a showing of

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substantial cause, the court does not intend to grant additional requests for extensions of time.

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Plaintiff is again cautioned that failure to file a pretrial statement in accordance with this order

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may result in the imposition of sanctions, including dismissal of this action.

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Accordingly, it is hereby ordered that:

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1. Plaintiff’s request for a summons (ECF No. 97) is denied.

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2. Plaintiff’s request for appointment of counsel (ECF No. 100) is denied.

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3. Plaintiff shall file a pretrial statement within 30 days from the date of this order.

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DATED: August 25, 2015.

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Plaintiff’s filing of a motion to supplement the complaint does not stay or otherwise
excuse his failure to file a pretrial statement.
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