McElroy v. Warden et al

Filing 18

ORDER signed by Magistrate Judge Allison Claire on 2/8/2018 DENYING without prejudice plaintiff's 17 motion for the appointment of counsel. (Yin, K)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 12 LATWAHN McELROY, AKA E.J. McELROY, Plaintiff, 13 14 15 16 No. 2:17-cv-1042 MCE AC P ORDER v. C.H.C.F. WARDEN, et al., Defendants. 17 18 Plaintiff, a state prisoner proceeding pro se with a civil rights action, requests appointment 19 of counsel. Plaintiff states that he is chronically ill and has recently suffered the flu and does not 20 have the capacity to focus on and investigate the important issues in this case. See ECF No. 17. 21 Only in exceptional circumstances, may the district court request the voluntary assistance 22 of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 23 1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); see also Mallard v. United 24 States Dist. Court, 490 U.S. 296, 298 (1989) (the Supreme Court has ruled that district courts lack 25 authority to require counsel to represent indigent prisoners in § 1983 cases). The test for 26 exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on 27 the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity 28 of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); 1 1 Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners, 2 such as lack of legal education and limited law library access, do not establish exceptional 3 circumstances. 4 In the present case, the court does not find the required exceptional circumstances at this 5 time for the following reasons: (1) currently pending is the undersigned’s recommendation that 6 plaintiff’s request to proceed in forma pauperis be denied in this case, based on his status as a 7 “three strikes litigant” under 28 U.S.C. 1915(g), see ECF No. 16; and (2) should the district judge 8 adopt the undersigned’s recommendation, then this action will proceed only if plaintiff pays the 9 full filing fee. 10 Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of 11 counsel, ECF No. 17, is denied without prejudice. 12 DATED: February 8, 2018 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2

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