Biggins v. Danberg et al

Filing 145

MEMORANDUM AND ORDER re 123 MOTION to Compel filed by James Arthur Biggins, 135 MOTION to Compel filed by James Arthur Biggins, 111 MOTION to Compel filed by James Arthur Biggins, 144 MOTION for Reconsideration re 141 Memorandum and Order, 142 Order filed by James Arthur Biggins, 78 MOTION to Appoint Counsel filed by James Arthur Biggins, 93 REQUEST for Default as to R. Carter, L. Gomez, E. Heddinger, Murphy, Rose, R. Willey, MOTION for Default Judgment as to R. Carter, L. Gomez, E. Heddinger, Murphy, Rose, R. Willey filed by James Arthur Biggins, 134 MOTION to gather witnesses affidavits filed by James Arthur Biggins, 120 MOTION for Default Judgment as to All Defendants filed by James Arthur Biggins as therein set forth. SCHEDULING ORDER: Discovery due by 7/20/2012, Dispositive Motions due by 9/20/2012, Answering Brief due 10/4/2012, Reply Brief due 10/18/2012. Signed by Chief Judge Gregory M. Sleet on 3/20/12. (mmm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES ARTHUR BIGGINS,
Plaintiff,
v.

R. WILLEY, et al.,
Defendants.

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) Civ. Action No. 09-862-GMS
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)

MEMORANDUM
I. BACKGROUND
The plaintiff, James Arthur Biggins ("Biggins"), an inmate at the James T. Vaughn
Correctional Center ("VCC), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983
(D.I. 1.) He appears prose and was granted permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. (D.I. 13.) Biggins was allowed to proceed with retaliation and excessive
force claims following screening of the complaint. (See D.I. 52.) Before the court are several
motions filed by Biggins, including a request for counsel, motions to compel, motions for entry
of default and default judgment, and a motion for reconsideration. (D.I. 78, 93, 111, 120, 123,
134, 135, 144.)

II. REQUEST FOR COUNSEL
Biggins requests counsel on the grounds that he cannot afford counsel, his incarceration
impedes his ability to litigate the case, his legal materials have been confiscated by prison staff,
his "lockdown" status hinders his ability to investigate and

conduc'~

discovery, he does not have

physical law library access, he is limited in knowledge of the law, the issues are complex, and a

trial will likely involve conflicting testimony and an attorney would assist in the crossexamination of witnesses. The defendants oppose the motion. (D.L 89.)
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to

representation by counsel. See Ray v. Robinson, 640 F.2d 474,477 (3d Cir. 1981); Parham v.

Johnson, 126 F.3d 454,456-57 (3d Cir. 1997). However, representation by counsel may be
appropriate under certain circumstances, if the court finds that the plaintiffs claim has arguable
merit in fact and law. Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993). The court should
consider a number of factors when assessing a request for counsel, including: (1) the plaintiffs
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 plaintiffs capacity to retain counsel on his own behalf; (5) the extent to
which a case is likely to tum 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).
Upon consideration of the record, the court is not persuaded that the request for counsel is
warranted at this time. Biggins is a frequent filer and has the ability to present his claims. In
addition, the issues are not complex. The court finds no prejudice to him continuing as a pro se
litigant. Finally, should the need for counsel arise later, the court will address the issue at that
time. Therefore, the court will deny Biggins' request for counsel without prejudice to renew.
(D.I. 78.)

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III. REQUEST FOR DEFAULT AND DEFAULT JUDGMENT
Biggins requests default and moves for entry of default judgment. (D.I. 93, 120.) Entry
of default judgment is a two-step process. Fed. R. Civ. P. 55(a), (b). A party seeking to obtain a
default judgment must first request that the clerk of the court "enter ... the default" of the party
that has not answered the pleading or "otherwise defend[ ed]," with[n the time required by the
rules or as extended by court order. Fed. R. Civ. P. 55(a). Even if default is properly entered, the
entry of judgment by default pursuant to Rule 55(b)(2) is within the discretion ofthe trial court.
Hritz v. Woma Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).

The deadline for the defendants to enter their appearance or otherwise plead was May 23,
2011, and they answered the complaint on May 31, 2011, albeit one week late. (See D .I. 92.) On
the same day, the court received Biggins' request for default. (D.I. 93.) "Sound judicial policy
favors disposition of cases on their merits rather than on procedural defaults." Hewlett v. Davis,
844 F.2d 109, 113 (3d Cir. 1988). The court exercises its discretion and declines the request for
entry of default.
Next, Biggins moved for default judgment when, in his view, the defendants did not
timely file a response to his motion for injunctive relief as ordered by the court. (D.I. 120.)
Contrary to Biggins' position, the defendants' response was timely filed. Moreover, the court
denied Biggins' motion for injunctive relief. (See D.I. 141, 142.) The motion for default
judgment is frivolous.
For the above reasons, the court will deny the request for default and motion for entry of
defaultjudgment. (D.I. 93, 120.)

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IV. MOTIONS TO COMPEL
Biggins has filed three motions to compel. (D.I. 111, 123, 135.) Biggins contends that
the defendants did not adequately answer interrogatories or produce documents responsive to his
discovery requests. "Parties may obtain discovery regarding any nonprivileged matter that is
relevant to any party's claim or defense--including the existence, description, nature, custody,
condition, and location of any documents or other tangible things and the identity and location of
persons who know of any discoverable matter." Fed. R. Civ. P. 26(b)(l).
The court has reviewed Biggins' motions to compel at docket items 111 and 135,
oppositions to the motions, as well as defendants' responses to the discovery requests at issue.
While defendants have raised objections to some discovery requests, they also produced
responsive discovery. After reviewing the record, the court concludes that the defendants
adequately responded to plaintiffs discovery requests.
The motion to compel at docket item 123 seeks to compel responses to depositions upon
written questions served in September 2011 upon the defendants Ronald Willey ("Willey"),
Roman Carter ("Carter'), Louis Gomez ("Gomez"), Troy Rose ("Rose"), Ruby Murphy
("Murphy"), and Edward Heddinger ("Heddinger"). (See D.I. 116, 117.) Carter, Murphy, Rose,
and Willey answered the depositions upon written questions. (See D.I. 125-128, 131.) Hence,
the motion is moot as to these defendants and will be denied. However, the record does not
reflect that Gomez or Heddinger answered the depositions upon written questions. Therefore, the
court grant the motion to compel as to Gomez and Heddinger. They will be ordered to answer
the depositions upon written questions.

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For the above reasons, the court will deny the motions to compel at docket items 111 and
135 and will grant in part and deny in part the motion to compel at docket item 123. (D.I. 111,
123, 135.)

V. MOTION TO GATHER WITNESS AFFIDAVITS
Biggins moves for an order to gather witness affidavits pursuant to Fed. R. Civ. P. 33.
(D.I. 134.) The defendants did not respond to the motion. Biggins explains that he is restricted
from physical access or written communications with prison population, staff officials, and
correctional officers who have pertinent information. More particularly, Biggins seeks affidavits
from Mr. David B. Benson, Ms. Gladis Little, NIP Ola, and liM Chester Irwin, all of whom
viewed Biggins' injuries as alleged in the complaint.
Rule 33 pertains to interrogatories to parties and is inapplicable to Biggins' motion.
However, issues relating to the scope and timing of discovery permitted under the Federal Rules
of Civil Procedure rest in the sound discretion of the court. See Wisniewski v. Johns-Manville

Corp., 812 F.2d 81, 90 (3d Cir. 1987). In the court's mind, questions remain unanswered:
(1) Why is it necessary to obtain four affidavits? (2) Do medical records provide the necessary

information? (3) What is the defendants' position regarding Biggins' motion? and (4) Does the
request pose any security risks at the VCC?
For the above reasons, the court will hold in abeyance its ruling on Biggins' motion to
gather witness affidavits. (D.I. 134.) The parties will be directed to brief this issue.

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VI. MOTION FOR RECONSIDERATION
Biggins moves for reconsideration of the court's December 20, 2011 order denying his
motion for injunctive relief. (D.I. 141, 142, 144.) The purpose of a motion for reconsideration is
to "correct manifest errors of law or fact or to present newly

discov~red

evidence." Max 's

Seafood Cafe ex ref. 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 oflaw
or fact or to prevent manifest injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669 (3d Cir. 2010)
(citing North River Ins. Co. v. CIGNA Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A
motion for reconsideration is not properly grounded on a request that a court rethink a decision
already made. See Glendon Energy Co. v. Borough ofGlendon, 836 F.Supp. 1109, 1122 (E.D.
Pa. 1993).
Biggins has failed to demonstrate any of the necessary grounds to warrant reconsideration
of the court's December 20, 2011 order denying his motion for injunctive relief. Accordingly,
the court will deny the motion for reconsideration. (D.I. 144.)

VII. CONCLUSION
For the above reasons, the court will: (1) deny the request fhr counsel without prejudice
to renew; (2) deny the request for default and motion for default judgment; (3) deny the motions
to compel at docket items 111 and 135; (4) grant in part and deny in part the motion to compel at
docket item 123; (5) hold in abeyance its ruling on the motion to gather witness affidavits; and
(5) deny the motion for reconsideration. (D.I. 78, 93, 111, 120, 12.3, 134, 135, 144.) Defendants

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Gomez and Heddinger will be ordered to answer the depositions upon written questions. The
parties will be ordered to brief the issue of gathering witness affidavits. Finally, the court will
enter a scheduling order.
An appropriate order will be entered.

Wilmington, Delaware

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
)
)
)
)
) Civ. Action No. 09-862-GMS
)
)
)
)

JAMES ARTHUR BIGGINS,
Plaintiff,
V.

R. WILLEY, et al.,
Defendants.

t
At Wilmington this

'1.0

1

ORDER

day of March, 2012, for the reasons set forth in the

Memorandum issued this date;
1. The plaintiffs request for counsel is denied without prejudice to renew. (D.I. 78.)
2. The plaintiffs' request for default and motion for entry of default judgment are denied.
(D.I. 93, 120.)
3. The plaintiffs motions to compel are denied. (D.I. 111, 135.)
4. The plaintiffs motion to compel is granted in part and denied in part. (D.I. 123.)
The defendants Louis Gomez and Edward Heddinger shall file responses to the September 3,
2011 deposition upon written questions within thirty (30) days from the date of this order.
5. The court holds in abeyance its ruling on the plaintiffs motion to gather witness
affidavits. (D.I. 134.) The parties shall file briefs addressing the issue within thirty (30) days
from the date of this order.
6. The plaintiffs motion for reconsideration is denied. (D.I. 144.)

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7. Scheduling Order. The court enters the following scheduling order.
a. Discovery. All discovery will be initiated so that it will be completed on or

befo~O

, 2012.

b. Application by Motion. Any application to the Court will be by written
motion filed with the Clerk.
c. The parties will not send or deliver any correspondence to Chambers. All
correspondence and pleadings must be filed directly with the Clerk of the Court. It will
be the responsibility of the parties to inform the court of any change of address.
d. Summary Judgment Motions. All summary judgment motions, with
accompanying briefs and affidavits, if any, will be served and filed on or before

~;}. 0, 2012. The answering brief will be filed on or befor/J~ t../ ,
2012, and the reply brief due on or befor{)~ { <6,;012.
e. Any requests for extensions of time as set forth in this Scheduling Order must
be made no later than twenty-one days prior to the expiration of time.

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