1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 LATHWAHN MCELROY, Case No. 1:25-cv-0759 JLT EPG (PC) 12 Plaintiff, ORDER ADOPTING FINDINGS AND

RECOMMENDATIONS, DENYING

13 v. PLAINTIFF’S MOTION TO PROCEED IN

FORMA PAUPERIS, AND DIRECTING

14 C.O. GRIGGS, et al. PLAINTIFF TO PAY THE FILING FEE

WITHIN 21 DAYS

15 Defendants. (Docs. 2, 8) 16 ORDER DENYING PLAINTIFF’S REQUEST

FOR COUNSEL

17 (Doc. 9) 18 19 Lathwahn McElroy seeks to hold the defendants liable for violations of his rights— 20 including those under the ADA; Rehabilitation Act; and the First, Fourth, Fifth, Sixth, Eighth, 21 and Fourteenth Amendments—while Plaintiff was incarcerated at Kern Valley State Prison. (See 22 generally Doc. 1.) Plaintiff requests leave to proceed in forma pauperis in the action. (Doc. 2.) 23 The magistrate judge reviewed Plaintiff’s litigation history and found he is subject to the 24 three-strikes provision of 28 U.S.C. § 1915(g). (Doc. 8 at 2-3.) In addition, the magistrate judge 25 found Plaintiff did not allege facts showing “there is a real and imminent threat Plaintiff’s 26 physical safety….” (Id. at 4.) The magistrate judge explained that “some of the allegations, such 27 as being denied pens to file prison grievances, do not directly implicate a risk of serious physical 28 injury at all.” (Id.) Therefore, the magistrate judge recommended the Court deny Plaintiff’s 1 motion and require Plaintiff to pay the filing fee in full to proceed with this action. (Id. at 5-6.) 2 Plaintiff filed timely objections to the Findings and Recommendations. However, 3 Plaintiff does not address the findings or analysis of the magistrate judge related to the pending 4 motion. (See generally Doc. 9.) He does not dispute the determinations that he is subject to the 5 three-strikes provision of Section 1915(g) and does not identify facts supporting a conclusion that 6 he was in imminent danger of physical harm when he filed the complaint. Rather, Plaintiff 7 addresses the merits of his allegations against the defendants in this case and requests the 8 appointment of counsel because he has not been able to find representation. (Id. at 1-2.) 9 According to 28 U.S.C. § 636(b)(1), the Court performed a de novo review of this case. 10 Having carefully reviewed the matter, the Court concludes the Findings and Recommendations 11 are supported by the record and proper analysis. Further, to the extent Plaintiff seeks appointment 12 of counsel in his objections, the Court denies the motion. Plaintiff does not have a constitutional 13 right to appointed counsel in this civil action. Rand v. Rowland, 113 F.3d 1520, 1525 (9th Cir. 14 1997), withdrawn in part on reh'g en banc, 154 F.3d 952 (9th Cir. 1998). The Court cannot 15 require an attorney to represent Plaintiff pursuant to 28 U.S.C. § 1915(e)(1). Mallard v. U.S. 16 Dist. Ct. for the S. Dist. of Iowa, 490 U.S. 296, 298 (1989). However, in certain exceptional 17 circumstances the Court may request the voluntary assistance of counsel pursuant to section 18 1915(e)(1). Rand, 113 F.3d at 1525. After reviewing the record, the Court is unable to determine 19 whether Plaintiff is likely to succeed on the merits of his claims. Additionally, Plaintiff appears 20 capable of adequately articulating his claims and arguments without the assistance of counsel. 21 Exceptional circumstances do not exist to warrant appointment of counsel. Thus, the Court 22 ORDERS: 23 1. The Findings and Recommendations dated July 8, 2025 (Doc. 8) are ADOPTED 24 in full. 25 2. Plaintiff’s motion to proceed in forma pauperis (Doc. 2) is DENIED. 26 3. Plaintiff’s request for appointment of counsel is DENIED without prejudice. 27 4. Plaintiff SHALL pay the $405.00 filing fee in full within 21 days of the date of 28 service to proceed with this action. 1 | Failure to pay the filing fee as ordered will result in the Court dismissing the action 2 | without prejudice. 3 4 IT IS SO ORDERED. 5 Dated: _ August 16, 2025 Cerin | Tower

TED STATES DISTRICT JUDGE

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