McElroy v. Property Clerk Rhu

Background

Latwahn McElroy filed a civil-rights action under 42 U.S.C. § 1983 while incarcerated at Kern Valley State Prison and representing himself. The court had ordered him to explain why his request to proceed without paying the filing fee should not be denied under the federal law’s three-strikes provision. That provision concerns people who have accumulated qualifying prior cases or appeals.

McElroy requested a 45-day extension to respond. He said he was a handicapped person who needed extra time and reading-comprehension accommodations, including use of a magnifier. He also referred to seeking discovery about the identities and involvement of defendants. He separately requested appointment of counsel. The opinion states that McElroy had filed at least 72 cases or appeals in California courts, eight cases in federal district courts, and three federal appeals during the preceding five years.

Rulings

The court granted in part and denied in part McElroy’s requests for an extension of time. It extended the deadline to September 25, 2026, for him to answer the July 27, 2026 order to show cause. The court did not grant the requested extension in full and stated that discovery was unlikely to be needed to address whether McElroy faced imminent danger of serious physical injury when he filed the complaint and whether he had qualifying prior strikes. The court warned that failing to respond by the new deadline 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 requests for appointment of counsel because he had not shown exceptional circumstances. It explained that civil litigants generally do not have a constitutional right to counsel unless losing the case could result in loss of physical liberty. Under 28 U.S.C. § 1915(e)(1), a court may ask a lawyer to represent someone who cannot afford one, but appointment is discretionary and limited to exceptional circumstances. The court stated that seeking help to develop claims or conduct discovery to prepare a complaint did not establish such circumstances.

Disposition

The order granted in part and denied in part the extension requests and denied the requests for appointed counsel. It terminated Docket Nos. 6 and 7. The order did not decide the underlying civil-rights claims or the ultimate question whether McElroy could proceed without paying the filing fee.