Duffy v. Kent County Incorporated
MEMORANDUM ORDER- DENYING 224 MOTION to Appoint Expert, DENYING 223 MOTION to Appoint Counsel, DENYING 222 Letter regarding 3rd FOIA Request. Signed by Judge Sherry R. Fallon on 6/25/2013. (lih)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
KENT COUNTY LEVY COURT,
Civil Action No. 09-198-SLR-SRF
At Wilmington this 25th day of June, 2013,
IT IS ORDERED that plaintiffs "Motion Regarding Lack of Equal Access" setting forth
a request for appointment of counsel (D.I. 223), plaintiffs letter dated June 12, 2013 setting forth
a FOIA request (D.I. 222), and plaintiffs "Motion As To Ad Hoc Hired Gun, NonWitnesses" setting forth a request for appointment of an expert witness (D.I. 224) are DENIED
for the following reasons:
Appointment of Counsel: The court previously addressed plaintiffs request for
counsel. In response to three motions filed by plaintiff requesting the appointment of counsel
and/or an auxiliary aid (D.I. 109, 169, 178), the court referred the representation ofplaintiffto a
member ofthe Federal Civil Panel (D.I. 195). As evidenced by the first three pages ofthe instant
request for appointment of counsel (D.I. 223), the attorney-client relationship became
irretrievably broken. As a result, the court revoked the order referring the case to the Federal
Civil Panel on May 9, 2013. (D.I. 214).
A prose litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. See Brightwell v. Lehman, 63 7 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.
Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002).
Plaintiff requests counsel on the grounds that he cannot communicate effectively
with the court, and neither the Clerk's Office nor the court has provided him with legal advice.
He seeks counsel to assist with discovery. Plaintiff's filings indicate that he possesses the ability
to adequately pursue his claims. Upon consideration of the record, the court is not persuaded that
representation by an attorney is warranted.
The United States Court of Appeals for the Third Circuit has determined that the
district court has a responsibility, under Rule 17(c)(2), 1 to inquire sua sponte into whether a pro
se litigant is incompetent to litigate his action and is, therefore, entitled to either appointment of a
guardian ad litem or other measures to protect his rights. See Powell v. Symons, 680 F.3d 301,
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."
303, 307 (3d Cir. 2012).
The court considers whether Rule 17(c) applies "[i]fa 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." ld. The court "need not inquire sua
sponte into a prose plaintiffs mental competence based on a litigant's bizarre behavior alone,
even if such behavior may suggest mental incapacity." ld. at 303 (citations omitted). The
decision whether to appoint a next friend or guardian ad litem rests with the sound discretion of
the district court. See id.
Although plaintiff claims that he is disabled under the Americans with Disabilities
Act, there is no medical opinion in the record that he is incompetent. Nor is there evidence that
plaintiff has been adjudicated incompetent by any court. The court finds that, under the
circumstances, the evidence does not suffice to conclude that plaintiff is incompetent. Inasmuch
as there is no substantial question regarding the competence of plaintiff, it is not necessary to
conduct a Rule 17(c) competency hearing. For the above reasons, the court finds plaintiff is
currently competent and declines to appoint a guardian or counsel to represent his interests
pursuant to Rule 17(c).
Plaintiff is placed on notice that future requests to appoint counsel will be
docketed, but not considered.
FOIA Request: Plaintiffs FOIA request was previously addressed in the court's
June 10,2013 Memorandum Order, which stated that neither the Privacy Act nor the Freedom of
Information Act, codified at 5 U.S.C. §§ 551 and 552, applies to the Judicial Branch. See 5
U.S.C. § 551(1)(B) (excluding the courts ofthe United States from the definition of"agency"
used in§ 551 et seq. of Title 5); see also United States v. Frank, 864 F.2d 992, 10I3 (3d Cir.
I988); Warth v. Dep 't ofJustice, 595 F.2d 52 I, 522-23 (9th Cir. I979); Cook v. Willingham, 400
F .2d 885 (1Oth Cir. I968). Plaintiff is placed on notice that future FOIA requests will be
docketed, but not considered.
Appointment of Expert Witness: Plaintiff requests that the court appoint and
fund an expert witness to respond to the expert witness retained by defendant. (D.I. 224) Prose
litigants may use any of the discovery methods prescribed in the Federal Rules of Civil
Procedure. The court has no authority, however, to finance or pay for a party's discovery
expenses. See Tabron v. Grace, 6 F.3d I47, I 59 (3d Cir. I999); Badman v. Stark, I39 F.R.D.
60I, 605 (M.D. Pa. I991) (Section I9I5 does not require the government to advance funds for
deposition expenses); Doe v. United States, II2 F.R.D. I83, I84-85 (S.D.N.Y. I986) (in forma
pauperis statute does not require government to advance funds for deposition expenses); Toliver
v. Community Action Comm 'n to Help the Econ., 6I3 F. Supp. I 070, I 072 (S.D.N. Y. I985) (no
clear statutory authority for the repayment of discovery costs for pro se in forma pauperis
plaintiff); Ebenhart v. Power, 309 F. Supp. 660, 66I (S.D.N.Y. 1969) ("Grave doubts exist as to
whether Section I9I5 authorizes this court to order the appropriation of Government funds in
civil suits to aid private litigants in conducting pre-trial discovery.").
Plaintiff is placed on notice that future requests for funding of expert witnesses
will be docketed, but not considered.
Conclusion: For the foregoing reasons, plaintiff's requests (D.I. 222; D.I. 223;
D.I. 224) are DENIED. The Clerk of Court shall cause a copy ofthis Memorandum Order to be
mailed to plaintiff.
This Memorandum Order is filed pursuant to 28 U.S.C. § 636(b)(l)(B), Fed. R.
Civ. P. 72(a), and D. Del. LR 72.1. The parties may file and serve specific written objections
within fourteen (14) days after being served with a copy of this Memorandum Order. Fed. R.
Civ. P. 72(a). The written objections and response are each limited to five (5) pages.
The parties are directed to the court's Standing Order In ProSe Matters For
Objections Filed Under Fed. R. Civ. P. 72, dated November 16, 2009, a copy ofwhich is
available on the court's website, www.ded.uscourts.gov.
Since this Memorandum Order addresses a non-dispositive motion, any objections
filed will not affect the findings, rulings, or decisions herein during the pendency of a decision on
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