Unreported / Non-Citable
Background
Plaintiff Latwahn McElroy, an inmate at Kern Valley State Prison, filed a pro se civil rights action under 42 U.S.C. § 1983. On July 27, 2026, the court ordered McElroy to show cause by August 24, 2026, why his request to proceed in forma pauperis should not be denied under the three-strikes provision of 28 U.S.C. § 1915. McElroy requested a 45-day extension and appointment of counsel on August 19, 2026. On September 9, 2026, the court granted a partial extension to September 25, 2026, but denied the request for counsel, finding that McElroy sought counsel to develop claims and conduct pre-litigation discovery, which did not constitute exceptional circumstances.
On September 28, 2026, McElroy filed a second motion for extension of time and/or appointment of counsel (Dkt. No. 9). He asserted that due to his lock-up status, he lacked access to legal resources and that his GA-22 requests for legal paging were not answered until September 21, 2026. He requested a 28-day extension and "metered counsel for the single task of completion upon its merits," stating he needed more than 72 hours and at least three weeks of law library use to complete his answer.
The Court’s Holding
The court granted McElroy's second request for an extension of time, extending the deadline to file his answer to the Order to Show Cause to November 20, 2026. The court emphasized that with this extension, McElroy would have had four months to prepare his answer and warned that no further extensions would be granted. Failure to comply may result in dismissal under Federal Rule of Civil Procedure 41(b) for failure to comply with a court order.
The court denied McElroy's renewed request for appointment of counsel for lack of exceptional circumstances. Citing Lassiter v. Department of Social Services, 452 U.S. 18, 25 (1981), the court reiterated there is no constitutional right to counsel in civil cases unless an indigent litigant may lose physical liberty. Under 28 U.S.C. § 1915(e)(1) and Ninth Circuit precedent (Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986); Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004)), appointment of counsel is discretionary and requires exceptional circumstances, evaluated by the likelihood of success on the merits and the plaintiff's ability to articulate claims pro se given the complexity of the legal issues. The court held that seeking assistance to prepare a complaint does not constitute exceptional circumstances.
Key Takeaways
- The court granted a second extension of time to November 20, 2026, for a pro se prisoner to respond to an order to show cause regarding the three-strikes rule, but explicitly stated no further extensions would be granted.
- The court denied appointment of counsel, reaffirming that there is no constitutional right to counsel in civil cases and that seeking assistance to prepare a complaint or conduct pre-litigation discovery does not meet the "exceptional circumstances" standard.
- The "exceptional circumstances" test in the Ninth Circuit requires evaluating both the likelihood of success on the merits and the plaintiff's ability to articulate claims pro se in light of the legal complexity, viewed together.
- The court warned that failure to file an answer by the new deadline may result in dismissal without further notice under Federal Rule of Civil Procedure 41(b).
Why It Matters
This order illustrates the strict procedural management of prisoner civil rights cases under the three-strikes provision of the Prison Litigation Reform Act. While the court accommodated the plaintiff's claimed lack of access to legal resources due to lock-up status with a final extension, it drew a firm line against appointing counsel for pre-answer procedural assistance.
The decision reinforces Ninth Circuit precedent that the threshold for appointed counsel in civil cases remains high, requiring a showing of exceptional circumstances beyond the mere need for legal guidance in drafting pleadings. The court's warning that no further extensions would be granted and that failure to comply may result in dismissal under Rule 41(b) underscores the finality of this procedural accommodation.