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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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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LATWAHN McELROY, AKA E.J.
McELROY,
Plaintiff,

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No. 2:17-cv-1042 MCE AC P

ORDER
v.
C.H.C.F. WARDEN, et al.,
Defendants.

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Plaintiff, a state prisoner proceeding pro se with a civil rights action, requests appointment

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of counsel. Plaintiff states that he is chronically ill and has recently suffered the flu and does not

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have the capacity to focus on and investigate the important issues in this case. See ECF No. 17.

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Only in exceptional circumstances, may the district court request the voluntary assistance

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of counsel pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir.

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1991); Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990); see also Mallard v. United

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States Dist. Court, 490 U.S. 296, 298 (1989) (the Supreme Court has ruled that district courts lack

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authority to require counsel to represent indigent prisoners in § 1983 cases). The test for

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exceptional circumstances requires the court to evaluate the plaintiff’s likelihood of success on

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the merits and the ability of the plaintiff to articulate his claims pro se in light of the complexity

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of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986);
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Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances common to most prisoners,

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such as lack of legal education and limited law library access, do not establish exceptional

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circumstances.

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In the present case, the court does not find the required exceptional circumstances at this

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time for the following reasons: (1) currently pending is the undersigned’s recommendation that

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plaintiff’s request to proceed in forma pauperis be denied in this case, based on his status as a

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“three strikes litigant” under 28 U.S.C. 1915(g), see ECF No. 16; and (2) should the district judge

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adopt the undersigned’s recommendation, then this action will proceed only if plaintiff pays the

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full filing fee.

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Accordingly, IT IS HEREBY ORDERED that plaintiff’s motion for appointment of

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counsel, ECF No. 17, is denied without prejudice.

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DATED: February 8, 2018

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