Johnson v. Morgan et al
MEMORANDUM ORDER - that: 1. The motion for reconsideration (D.I. 64 ) is DENIED. 2. The motion to reopen case and for mental eva1uation (D.I. 67 ) is DENIED. 3. The motion to stay (D.L 68 ) is DENIED. 4. The motion to strike response to De fendant's motion for summary judgment (D.I. 69 ) is DENIED. 5. The second motion to reopen case, request for counsel, motion for reconsideration, and request for a competency hearing (D.I. 70 ) is DENIED. Signed by Judge Leonard P. Stark on 9/6/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 09-007-LPS
WARDEN PHIL MORGAN,
At Wilmington this 6th day of September, 2012:
Having considered Plaintiffs pending motions (D.1. 64, 67, 68, 69, 70),
IT IS HEREBY ORDERED THAT:
Plaintiff, Ronald Johnson ("Johnson"), a former inmate at the Howard R. Young
Correctional Institution in Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.c.
§§ 1983 and 1986, alleging violations of his civil rights. l Johnson appears pro se and has been
allowed to proceed in forma pauperis. (D.L 4)
Pending before the Court are Johnson's motion for reconsideration (D.l. 64),
motion to reopen case and for mental evaluation (D.1. 67), motion to stay (D.!. 68), motion to
strike response to defendant's motion for summary judgment (D.L 69), and second motion to
reopen case, request for counsel, for reconsideration, and for a competency hearing (D.I. 70).
lOver the course of this litigation, Johnson has been incarcerated, released, reincarcerated,
and released again. (SeeD.I.l,5, 7,12,15,19,21,24,26,34,37,39,42,43,46,48,63) On
July 16,2012, Johnson advised the Court in another case (Civ. No. 09-299-LPS) that he was no
longer incarcerated. He has not, however, filed anything in the instant case regarding his current
residence, and the docket continues to indicate that he is incarcerated.
On July 11,2011, defendant filed a motion for summary judgment. (See 0.1. 55)
Johnson filed a brief in opposition to the motion (0.1. 58) and, on March 30, 2012, the Court
granted summary judgment in favor of Defendant and against Johnson. (See 0.1. 61) On May 4,
2012, Johnson filed a motion for extension of time to file a late appeal and/or for reconsideration,
which was construed by the Court as a motion for reconsideration. By his motion for
reconsideration, Johnson seeks reconsideration on the grounds that he is suffering from a mental
breakdown, depression, and anxiety. (0.1.64) He also requests counsel and a mental evaluation.
Johnson states that he never recovered from a mental defect or disease and
continues to suffer from the condition. 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 United States Court of
Appeals for the Third Circuit has determined that the district court has a responsibility, under
Rule 17(c)(2), to inquire sua sponte into whether a pro se litigant is incompetent to litigate his
action and is, therefore, entitled to appointment of either a guardian ad litem or other measures to
protect his rights. See Powell v. Symons, 680 F.3d 301, 307 (3d Cir. 2012).
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." Id. The Court "need not inquire sua
sponte into a pro se plaintiffs mental competence based on a litigant's bizarre behavior alone,
even if such behavior may suggest mental incapacity." Id. at 303. The decision whether to
appoint a next friend or guardian ad litem rests with the sound discretion of the district court.
See id. at 303.
In the instant action, Johnson makes allegations of mental illness, but he has not
submitted any verifiable evidence ofincompetence. 2 Thus, the Court has no duty to conduct a
sua sponte determination of competency under Rule 17(c)(2).
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 3 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. See Tabron, 6 F.3d at 155.
After passing this threshold inquiry, the Court considers a number of factors when
assessing a request for counsel. Factors to be considered in deciding whether to request a lawyer
to represent an indigent plaintiff include: (1) the merits of the plaintiffs claim; (2) the plaintiffs
ability to present his or her case considering his or her education, literacy, experience, and the
restraints placed upon him or her by incarceration; (3) the complexity of the legal issues; (4) the
degree to which factual investigation is required and the plaintiff s ability to pursue such
2In his numerous other cases, Johnson has submitted a letter from Debbie Snyder
("Snyder"), a therapist at Connections Community Support Programs ("Connections"), dated
June 29, 2010, stating that Johnson is a client of Connections outpatient clinic and is compliant
with his appointments. (See Civ. No. 09-007-LPS, D.l. 28) Connections is a not-for-profit
organization that provides community-based housing, health care, and employment services in
Delaware. See www.connectionscsp.org. Snyder does not indicate what services were provided
to Johnson at that time. Johnson has been in and out prison since the date ofthe letter. It is
unknown ifhe continues to receive services at Connections. In addition, Johnson submitted
documentation from the Social Security Administration, dated April 21, 2010, indicating that he
receives Supplemental Security Income payments, but the document does not indicate the reason
for the award of benefits. (Id.)
3See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d) now § 1915(e)(1) - does not authorize federal court to require unwilling attorney to
represent indigent civil litigant).
investigation; (5) the plaintiffs capacity to retain counsel on his or her own behalf; and (6) the
degree to which the case turns on credibility determinations or expert testimony. See
Montgomery v. Pinchak, 294 F.3d 492,498-99 (3d Cir. 2002); Tabron, 6 F.3d at 155-56. This
list is not exhaustive, nor is anyone factor determinative. Tabron, 6 F.3d at 157.
After reviewing Johnson's requests, the Court concludes that the case is not so
factually or legally complex that requesting an attorney is warranted. To date, the filings in this
case demonstrate Johnson's ability to articulate his claims and represent himself. In addition, in
Civ. No. 09-299-LPS, the Court was provided with a transcript of a preliminary hearing wherein
Johnson refused counsel and proceeded pro se. The transcript shows Johnson's ability to
represent himself in open court, even to the extent that he cross-examined a witness in an
effective manner. In these circumstances, the Court will deny without prejudice to renew
Johnson's requests for counsel.
Johnson also moves for reconsideration of the March 30, 2012 Order granting
Defendant's motion for summary judgment, on the grounds that he is suffering from a mental
breakdown, depression, and anxiety. (D.1. 64) The purpose of a motion for reconsideration is to
"correct manifest errors of law or fact or to present newly discovered evidence." Max's Seafood
Cafe ex rei. Lou-Ann, Inc. v. QUinteros, 176 F.3d 669,677 (3d Cir. 1999). A proper Rule 59(e)
motion must rely on one of three grounds: (1) an intervening change in controlling law;
(2) the availability of new evidence; or (3) the need to correct a clear error of law or fact or to
prevent manifest injustice. See Lazaridis v. Wehmer, 591 F.3d 666,669 (3d Cir. 20lO).
The Court has considered Johnson's Motion for Reconsideration and finds that he
has failed to demonstrate any of the aforementioned grounds to warrant reconsideration of the
Court's March 30, 2012 Order. Therefore, the Court will deny the motion. (D.1. 64)
NOW THEREFORE, IT IS HEREBY ORDERED that:
The motion for reconsideration (D.I. 64) is DENIED.
The motion to reopen case and for mental eva1uation (D.I. 67) is DENIED.
The motion to stay (D.L 68) is DENIED.
The motion to strike response to Defendant's motion for summary judgment (D.I.
69) is DENIED.
The second motion to reopen case, request for counsel, motion for
reconsideration, and request for a competency hearing (D.I. 70) is DENIED.
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