McElroy v. Gustafson et al

Filing 109

ORDER signed by Magistrate Judge Edmund F. Brennan on 10/06/15 denying 107 Motion to Appoint Counsel. The court notes that plaintiff's pretrial statement, which was originally due on 7/02/15, must be filed no later than 10/22/15. (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. He has once again requested that the court appoint counsel. As plaintiff has been

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previously informed, see ECF Nos. 38, 58, 82, 94, 103, 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 once again considered those factors, the court still finds there are no

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exceptional circumstances in this case.
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Accordingly, IT IS HEREBY ORDERED that plaintiff’s request for appointment of

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counsel (ECF No. 107) is denied. The court notes that plaintiff’s pretrial statement, which was

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originally due on July 2, 2015, must be filed no later than October 22, 2015. Failure to timely file

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a pretrial statement may result in a recommendation of dismissal

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DATED: October 6, 2015.

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