Hartmann v. Warden Carroll et al
Filing
145
MEMORANDUM OPINION - Signed by Judge Sue L. Robinson on 8/8/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DETLEF F. HARTMANN,
Plaintiff,
v.
WARDEN THOMAS CARROLL,
DAVID PIERCE, and IHOMA CHUKS,
Defendants.
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) Civ. No. 06-340-SLR
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Detlef F. Hartmann, Sussex Correctional Institution, Georgetown, Delaware. ProSe
Plaintiff.
Catherine C. Damavandi, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Thomas Carroll, Paul Howard, David
Pierce, and Edward Johnson.
James Edward Drnec, Esquire, Balick & Balick, LLC, Wilmington, Delaware. Counsel
for Defendant lhoma Chuks.
MEMORANDUM OPINION
Dated: August ~, 2012
Wilmington, Delaware
I. INTRODUCTION
Plaintiff Detlef R. Hartmann ("plaintiff'), an inmate at the Sussex Correctional
Institution ("SCI"), Georgetown, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. He proceeds pro se and was granted leave to proceed in forma pauperis. The
court has jurisdiction pursuant to 28 U.S.C. § 1331. The court addresses whether
plaintiff is competent within the meaning of Fed. R. Civ. P. 17(c) and reconsiders
plaintiffs request for counsel. Also before the court are defendant lhoma Chuks'
("Chuks") motion to dismiss and motion for second extension of deadlines. (D. I. 142,
143) For the following reasons, the court: (1) finds that plaintiff is competent within the
meaning of Rule 17(c); (2) will deny the request for counsel without prejudice to renew;
(3) will deny the motion to dismiss; and (4) will deny as moot the motion for second
extension of deadlines.
II. BACKGROUND
Plaintiff was incarcerated at the James T. Vaughn Correctional Center ("VCC"),
Smyrna, Delaware in 2006 when he filed this lawsuit pursuant to 42 U.S.C. § 1983. 1 He
1
Piaintiff pled guilty in 2001 to one count of second degree unlawful sexual
intercourse and two counts of unlawful sexual contact. He was sentenced, effective
December 1, 1999, to a total period of nineteen years at Level V incarceration, to be
suspended after serving ten years for seven and a half years at decreasing levels of
supervision. Plaintiff is designated a Tier Ill sex offender and ordered to have no
contact with any minor child, including any biological child who has been adopted by
another, following his termination of parental rights." See Hartmann v. State, 19 A. 3d
301 (Del. 2011) (table decision). Because plaintiff was charged with possessing child
pornography and the victim of his assaults was a child, his access to the internet is
restricted while on probation to ensure the safety of the public. /d. The Delaware
Supreme Court has found that, while the internet restriction may have constricted
plaintiffs access to the courts and hindered his ability to conduct legal research, his
fundamental right to access the courts remains unfettered. /d.
was released from custody in January 2009 but, after he was charged with violation of
probation, returned to prison in March 2011 and housed at the SCI where he remains to
date. See Hartmann v. Johnson, Civ. No. 12-436-SLR (D. Del.).
Following screening pursuant to 28 U.S. C.§ 1915 and§ 1915A and
amendments to the complaint, plaintiff was allowed to proceed with claims against
Chuks, an employee of Correctional Medical Services, Inc. ("CMS"), then medical
healthcare contractor for the Delaware Department of Correction ("DOC"); Thomas
Carroll ("Carroll"), then warden of the VCC; and David Pierce ("Pierce"), then deputy
warden of the VCC. Plaintiff alleges that Chuks, Carroll, and Pierce were deliberately
indifferent to his medical needs. During the course of the litigation, the court denied
numerous requests for counsel filed by plaintiff. (D.I. 4, 7, 13, 30, 35, 51, 63, 99) In the
summer of 2010, the court granted defendants' motions for summary judgment and
entered judgment in favor of defendants; plaintiff appealed. (D. I. 129, 130, 132) The
United States Court of Appeals for the Third Circuit vacated the July 1, 2010 judgment
and remanded the matter for this court to address whether plaintiff is competent within
the meaning of Fed. R. Civ. P. 17(c) and to reconsider plaintiffs request for counsel. 2
See Powell v. Symons, 680 F.3d 266 (3d Cir. 2012). The formal mandate issued on
April23, 2012. (D.I. 136)
Plaintiff filed a twenty-four page "reply" to the appellate court decision stating that
he could not "knowingly and intelligently read and apply legal needs for this case
2
1t was not clear to the Court of Appeals if plaintiff challenged the dismissal of
unserved DOC defendants Paul Howard ("Howard") and Edward Johnson ("Johnson").
To the extent that plaintiff challenged the dismissal, the Court of Appeals affirmed their
dismissal. Powell, 680 F.3d at 310 n.8.
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because here in Delaware prison the obstruction of justice to access information, the
courts, and redress grievance are a part of the continued, systemic, pattern and
practices of state attorneys responsible for the Dept. of Corrections staff.... " (D. I. 137)
Plaintiff goes on to state that the record he "produced shows [his] incompetence to
communicate the irreparable and other damages to [him]." (/d.) Plaintiff then wrote to
the court complaining that he was "not allowed access to the information necessary ...
to read about what mental health experts reasoning [is required by the] court due to
continued obstructions of justice [] in Delaware prisons" by State personnel. Plaintiff
indicated that he would "mail it to this court as soon as I can around my disabilities."
(D.I. 138)
On April 25, 2012, the court granted plaintiff additional time to obtain mental
health information and ordered the parties, on or before May 31, 2012, to file briefs and
relevant documentation addressing whether plaintiff is competent within the meaning of
Fed. R. Civ. P. 17(c) and plaintiff's request for counsel. (D. I. 139) On May 15, 2012,
Chuks moved for additional time to comply with the deadlines. 3 Chuks explained that,
on April24, 2012 and May 7, 2012, he asked plaintiff to sign and return a HIPAAcompliant authorization to allow the release of plaintiff's mental health and medical
records but plaintiff did not respond to the requests. (D.I. 140) The court granted the
motion, and ordered plaintiff to execute and return to defendants a HIPAA-compliant
authorization on or before June 20, 2012. The order warns plaintiff, "FAILURE TO
COMPLY WITH THIS ORDER MAY RESULT IN DISMISSAL OF THE CASE." (D.I.
3
DOC defendants Carroll and Pierce have taken no action in this litigation since
its remand.
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141, 1[ 1) A copy of the HIPAA-compliant authorization was attached to the order. The
parties were given until July 30, 2012 to brief the relevant issues.
On May 15, 2012, Chuks sent plaintiff a third request for him to execute and
return the HIPAA-compliant authorization. (D. I. 142, ex. C) On May 16, 2012, plaintiff
responded as follows:
Since I am not represented by counsel, have no equal and timely
constitutional access to information due to my legal guardian's continues
[sic] deliberate indifference to my rights as a disabled person, and since
the legal question of whether counsel should be appointed for me is the
only question in front of the court at this time, I am incapable and not
knowingly and intelligently able to participate in the proceedings.
Therefore, I see HIPAA request as premature at this time.
(/d. at ex. D) On May 18, 2012, Chuks again requested that plaintiff execute and return
the HIPAA-compliant authorization. (/d. at ex. E) When plaintiff did not respond, Chuks
filed a motion to dismiss on June 25, 2012 for plaintiffs failure to comply with the court's
May 16,2012 order. 4 (D.I. 142) On August 1, 2012, plaintiff filed a thirty-six page "brief
for incompetence and appointment of counsel needed for this case," replete with case
citations, argument, and analysis. (D.I. 144) Therein, plaintiff, who refused to sign and
return the HIPAA-compliant authorization, complains that he has not received
responses from four psychiatrists to whom he has written. 5
4
Chuks recently filed a motion for a second extension of deadlines. (D.I. 143)
The court will deny the motion as moot.
5
The brief refers to copies of letters and exhibit 8 sent in a "separate mailing." To
date, a "separate mailing" has not been received by the court.
4
Ill. RULE 17(c)
Federal Rule of Civil Procedure 17(c)(2) provides that "[t]he court must appoint a
guardian ad litem - or issue another appropriate order- to protect a minor or
incompetent person who is unrepresented in an action." The court considers whether
Rule 17(c) applies "[i]f a court [is] presented with evidence from an appropriate court of
record or a relevant public agency indicating that the party had been adjudicated
incompetent, or if the court receive[s] verifiable evidence from a mental health
professional demonstrating that the party is being or has been treated for mental illness
of the type that would render him or her legally incompetent." Powell, 680 F.3d at 307
(3d Cir. 2012) (citing Ferrel/iv. RiverManorHealth Care Ctr., 323 F.3d 196,201 (2d Cir.
2003)). The court "need not inquire sua sponte into a pro se plaintiff's mental
competence based on a litigant's bizarre behavior alone, even if such behavior may
suggest mental incapacity." /d. (citations omitted). The decision whether to appoint a
next friend or guardian ad litem rests with the sound discretion of the district court.
Powell, 680 F.3d at 303.
During the course of this litigation, plaintiff has filed numerous requests for
counsel that include a variety of reasons why counsel was necessary, including his
limited access to legal materials and unspecified mental disabilities. On August 18,
2009, plaintiff filed a request for counsel and attached to it a one-paragraph letter from
Dr. Jeanette Zaimes ("Dr. Zaimes"), a psychiatrist, dated July 9, 2009, that states:
To Whom It May Concern: Mr. Detlef Hartmann is under my care for
Major Depression and Attention Deficit Disorder. I do not feel he is
competent at this time to represent himself in court. I would recommend
that he be given a public defender, if at all possible.
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(D.I. 99, ex A)
Dr. Zaimes' letter suffices to place the court on notice that a Rule 17 inquiry is
appropriate. However, because plaintiff has neither complied with the court's May 16,
2012 order (D. I. 141) nor otherwise cooperated in supplementing the record, there is no
other medical evidence of plaintiffs mental health. Given this paucity of evidence, both
quantitative and qualitative, the court finds that, as noted by the Third Circuit, Dr.
Zaimes' letter amounts to little more than a conclusory statement that plaintiff is
incompetent, fails to specify what assessments Dr. Zaimes performed to arrive at her
conclusion, and does not indicate how plaintiffs conditions affect his competency. Of
interest is that the letter refers to criminal, not civil, litigation as it recommends plaintiff
be given a public defender. Notably, the medical records contained in the court file
contain no evidence of a mental health issue at all. (See D. I. 113, 120) Dr. Zaimes'
letter is sufficiently unpersuasive to support a finding of incompetency.
In addition, the court has had prior experience with plaintiff. Plaintiff has actively
participated in this litigation, and his responses to interrogatories "demonstrate an
impressive ability to organize his points, make rational arguments, and cite supporting
legal authority." Powell, 680 F.3d at 309. Moreover, even after Dr. Zaimes opined that
plaintiff was unable to represent himself in court, plaintiff continued to file lawsuits. On
August 26, 2010, while out of prison, plaintiff filed a civil rights lawsuit, dismissed as
frivolous on November 8, 2010. See Hartmann v. O'Connor, Civ. No. 10-725-SLR.
Plaintiff appealed, and the Third Circuit affirmed the dismissal on February 3, 2011.
See Hartmann v. O'Connor, NO. 10-4521 (3d Cir. Feb. 3, 2011). Unhappy with the
appellate court's decision, plaintiff filed a typed, fifteen page petition for rehearing en
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bane that, in reading, sets forth the issues he raises in a rational and logical manner. /d.
at Mar. 16, 2011 petition. Therein, plaintiff requested counsel. /d. at 8. The Third
Circuit denied the petition for rehearing. On April 6, 2012, plaintiff filed a petition for a
writ of habeas corpus following his reincarceration. See Hartmann v. Johnson, Civ. No.
12-436-SLR. Said petition further demonstrates plaintiff's ability to understand the
relevant law and file cases in his behalf. Finally, plaintiff's filings subsequent to remand
of this case are logical and coherent and demonstrate his ability to understand court
rulings, as well as the issues the court rules upon today, despite plaintiff's self-serving
statement that he is "incapable and not knowingly and intelligently able to participate in
the proceedings." (D. I. 142, ex. D) His most recent filing once again demonstrates his
ability to discuss the relevant law as it applies to the issues. 6 (See D. I. 144)
The court has considered the conclusory and unsupported statement of Dr.
Zaimes and the lack of any further medical evidence of record, all in conjunction with its
own experience with plaintiff. Under the circumstances, the evidence of incompetency
fails to support a conclusion that plaintiff is incompetent. Inasmuch as there is no
substantial question regarding the competence of plaintiff, it is not necessary to conduct
a "full blown" Rule 17(c) competency hearing. For the above reasons, the court finds
that it is unnecessary to appoint a guardian or counsel to represent plaintiff's interests.
6
Piaintiff now seems most concerned with a transfer from the SCI to a psychiatric
facility of his own choosing.
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IV. REQUEST FOR COUNSEL
Plaintiff has made numerous requests for counsel. A pro se litigant proceeding in
forma pauperis has no constitutional or statutory right to representation by counsel. 7
See Brightwell v. Lehman, 637 F.3d 187, 192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993). However, representation by counsel may be appropriate under
certain circumstances, after a finding that a plaintiff's claim has arguable merit in fact
and law. Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the court should consider a number of factors
when assessing a request for counsel, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (4) the plaintiff's capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron, 6 F.3d at 155-57.
The list is not exhaustive, nor is any one factor determinative. /d. at 157.
The court finds that plaintiff's claims have merit given that some issues survived
dismissal and discovery is complete. Accordingly, the court proceeds to weigh the
above factors to determine whether counsel is warranted. The first factor for
consideration is plaintiff's ability to present his own case. In making this determination,
the court considers plaintiff's literacy, education, prior work experience, prior litigation
7
See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now§ 1915(e)(1)) does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
being "request.".
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experience, and restraints placed upon him by virtue of his incarceration. Tabron, 6
F.3d at 156. As discussed above, plaintiffs submissions demonstrate he is able to
adequately present his case. He sets forth issues and states the factual grounds on
which he seeks relief. In addition, he has adequately responded to discovery requests.
Although not an attorney, plaintiffs lack of legal training is common for pro se litigants.
The court next considers the complexity of the legal issues presented. Counsel
may be sought when the legal issues are complex. A § 1983 civil rights case alleging
deliberate indifference to a prisoner's serious medical needs can raise sufficiently
complex legal issues to require representation of counsel. Parham v. Johnson, 126
F.3d 454, 459 (3d Cir. 1997). Even where "the ultimate [legal] issue appears relatively
simple ... [s]implicity in the allegation supporting the claim does not translate into
simplicity in the presentation of the claim." /d. Here plaintiff alleges that he was not
provided adequate care and treatment. After reviewing the record, the court does not
find that the legal issues raised by plaintiffs claims are unduly complex or burdensome.
Next, the court considers the degree to which factual investigation will be
necessary, and the ability of the plaintiff to pursue such investigation. Even where the
ultimate legal issue in a case may be comprehensible, a court must consider the
complexity of the discovery involved. Parham, 126 F.3d at 459. Where claims are likely
to require extensive discovery and compliance with complex discovery rules,
representation by counsel may be warranted. Tabron, 6 F.3d at 156. Also, the court
considers the extent to which plaintiff, while in confinement, may face problems in
pursuing his claims. /d. at 156. The court file does not indicate that plaintiff had
difficulty obtaining the discovery he sought. See, e.g., Lasko v. Watts, 373 F. App'x
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196, 201 (3d Cir. 201 0) (not published) (lack of counsel did not impair plaintiffs ability
to obtain all relevant medical records).
In addition, the court considers plaintiffs financial ability to attain and afford
counsel on his own behalf. Plaintiff has been granted leave to proceed in forma
pauperis and, therefore, has demonstrated an inability to afford counsel. Also
considered is whether this case is likely to turn on credibility determinations. Although
many cases turn on credibility determinations, courts considering this factor should
focus on whether the case is "solely a swearing contest" between the parties. Parham,
126 F.3d at 460. Based upon motions filed and the discovery contained in the court file,
the court cannot say that the case will likely turn on credibility determinations.
Finally, the court considers the extent to which expert testimony may be required.
Counsel may be warranted where the case will require testimony from expert witnesses.
Even though plaintiff raises medical needs claims, a review of the record does not
indicate that expert testimony is required.
Upon consideration of the record, the court finds that the above factors weigh
against representation by counsel. Therefore, the court will deny the request for
counsel without prejudice to renew.
V. MOTION TO DISMISS
Chuks moves for dismissal, pursuant to Fed. R. Civ. P. 37, for plaintiffs failure to
comply with this court's May 16, 2012 order. (D. I. 142) It is undisputed that plaintiff has
failed to comply with this court's order. Nonetheless, the court will deny the motion to
dismiss given the posture of the case.
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Inasmuch as the Third Circuit vacated the July 1, 2010 judgment, the court will
give plaintiff an opportunity to file a supplemental response to defendants' motions for
summary judgment and will give defendants the opportunity to file supplemental replies.
VI. CONCLUSION
For the reasons discussed above, the court: (1) finds plaintiff is competent within
the meaning of Rule 17(c); (2) will deny the request for counsel; (3) will deny the motion
to dismiss; (4) will deny as moot the motion for second extension of deadlines; and (5)
will provide the parties an opportunity to file a supplemental response and supplemental
replies.
An appropriate order will be entered.
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