The opinion of the court was delivered by: Ruben B. Brooks United States Magistrate Judge
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
PURSUANT TO 28 U.S.C. 1915(d) ) & (e)(1) [ECF NO. 35]
Plaintiff Gustavo McKenzie, a state prisoner proceeding pro se and in forma pauperis, initiated this civil rights action pursuant to 42 U.S.C. 1983, alleging that Defendants violated the First Amendment when they retaliated against him for filing internal grievances and a civil action against prison employees. (Compl. 7-17, ECF No. 1; Order Granting Pl.'s Mot. Proceed In Forma Pauperis 1, ECF No. 4.)*fn1 Before the Court is McKenzie's Motion for Appointment of Counsel, filed nunc pro tunc to January 2, 2013 [ECF No. 35].
This lawsuit relates to a civil rights action McKenzie filed on March 25, 2010, against several prison employees in California Superior Court ("underlying action"). That case was subsequently removed to the United States District Court for the Southern District of California on December 8, 2010. See McKenzie v. Ellis, No. 10cv1490--LAB (MDD), 2011 U.S. Dist. LEXIS 118373, at *1-2 (S.D. Cal. July 18, 2011) (report and recommendation regarding defendants' motion to dismiss complaint). In the underlying action, McKenzie claimed that Defendants violated his First and Fourteenth Amendment rights when they refused to accommodate his religious dietary needs. Id. at *1-5. Plaintiff's federal claims were dismissed without leave to amend, and his state claims were remanded to the California Superior Court on September 13, 2012. McKenzie v. Ellis, No. 10cv1490-LAB [MDD] 2012 U.S. Dist. LEXIS 130973, at *1 (S.D. Cal. Sept. 13, 2012) (order dismissing federal claims and remanding case to state court).
McKenzie filed his Complaint in this matter on June 27, 2012, naming thirteen Defendants [ECF No. 1]. Plaintiff alleges that Defendants retaliated against him for filing internal grievances and the underlying lawsuit. (Compl. 7-17, ECF No. 1.) Plaintiff maintains that Defendants have engaged in various retaliatory actions, including breaking Plaintiff's typewriter; writing a false rule violation report; "maliciously" imposing various sanctions as punishment; refusing to accommodate Plaintiff's religious dietary requirements even though he had a "Religious Diet Card"; removing McKenzie from the "Religious Diet List"; threatening to fight Plaintiff; denying McKenzie "allowable books, hygiene items[,] and some collectible postcards" that were provided to everyone else housed in Plaintiff's unit; and arbitrarily rejecting McKenzie's inmate grievances. (Id. at 8-17.)
On October 2, 2012, Defendants filed a Motion to Revoke Plaintiff's IFP Status and Dismiss [ECF No. 20] ("Motion to Revoke and Dismiss"). Defendants maintain that McKenzie has three strikes within the meaning of 28 U.S.C. § 1915(g) and that he is not in imminent danger of serious physical injury. (Defs.' Mot. Revoke & Dismiss 2, ECF No. 20.) Plaintiff filed an Opposition, claiming that Defendants' Motion to Revoke and Dismiss was untimely pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(i) and that he does not have three strikes within the meaning of 28 U.S.C. § 1915(g). (Opp'n Defs.' Mot. Revoke & Dismiss 5-11, ECF No. 22.)*fn2 Defendants filed their Reply on November 2, 2012, asserting that their motion was timely filed pursuant to Federal Rule of Civil Procedure 12(a)(1)(A)(ii) and that McKenzie failed to show that he does not have three strikes within the meaning of 28 U.S.C. § 1915(g). (Defs.' Reply Pl.'s Opp'n 1-2, ECF No. 23.) Defendants' Motion to Revoke and Dismiss is currently pending before the Honorable Roger
Plaintiff submitted a Motion for Entry of Default against
Defendant J. Nutt, which was filed nunc pro tunc to November 30, 2012 [ECF No. 29]. Nutt filed an opposition on December 11, 2012, stating that he timely responded in this case before McKenzie moved for default. (Def.'s Opp'n Mot. Entry Default 2, ECF No. 30.) Plaintiff filed a reply on December 26, 2012 [ECF No. 32]. The Honorable Roger T. Benitez denied McKenzie's Motion for Entry of Default on January 3, 2013 [ECF No. 33].
Plaintiff's Motion for Appointment of Counsel ("Motion") was filed nunc pro tunc to January 2, 2013 [ECF No. 35]. McKenzie asserts that appointed counsel is appropriate for several reasons:
(1) Defendants' ongoing retaliation is resulting in "periodic denials of access to the facility's law library"; (2) his medical condition (open-angle glaucoma) has resulted in the loss of vision in his right eye, which has "become a major impediment in the preparation of documents"; (3) he is a "layman at law"; and (4) he has been unable to obtain independent counsel. (Mot. Appointment Counsel 5, ECF No. 35.)
Plaintiff requests the appointment of counsel to assist him in prosecuting this civil action. The Constitution does not provide a right to appointment of counsel in a civil case unless an indigent litigant may lose his physical liberty if he loses the litigation. Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 25 (1981). Nonetheless, district courts maintain discretion to appoint counsel for indigent persons. 28 U.S.C.A. § 1915(e)(1) (West 2012). This discretion may be exercised only under "exceptional circumstances." Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991).
A finding of exceptional circumstances requires an evaluation of both "the likelihood of success on the merits [and] the ability of the petitioner to articulate his claims pro se in light of the complexity of the legal issues involved." Neither of these factors is dispositive and both must be viewed together before reaching a decision . . . Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir. 1986) (alteration in original) (quoting Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983)). When examining a plaintiff's ability to proceed pro se, courts generally require, as a threshold matter, the plaintiff to show that (1) he is indigent, and (2) he "has made a reasonably diligent effort to secure ...