Allen v. Prince et al

Filing 53

MEMORANDUM ORDER - denying 46 MOTION to Compel, 47 MOTION to Appoint Counsel. Signed by Judge Leonard P. Stark on 3/30/2012. (lih)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

VINCENT D. ALLEN,

Plaintiff,

v.

: Civ. No. 09-938-LPS

AARON PRINCE, et aI.,
Defendants.

MEMORANDUM ORDER
At Wilmington this 30th day of March, 2012, having considered Plaintiffs pending
motions (D.I. 46, 47);
IT IS HEREBY ORDERED that:

1.

Background. Plaintiff Vincent D. Allen ("Plaintiff"), an inmate at the Howard R.

Young Correctional Institution ("HRYCI") in Wilmington, Delaware, filed this civil rights action
pursuant to 42 U.S.C. § 1983. He appears pro se and has been granted leave to proceed in forma
pauperis. (D.I. 4)
2.

Parole Board Hearing. Plaintiff asks the Court to order the Delaware Board of

Parole ("Parole Board") to forward to him the transcript of a parole revocation hearing that took
place on August 10, 2010. While Plaintiff believes that the transcripts were disposed of illegally
and/or improperly, he asks the Court to issue an order to secure any and all transcripts to him, as
well as a copy of the proceedings.
3.

The Parole Board is not a party to this action. Therefore, in order to procure the

requested discovery it is necessary that Plaintiff seek it as set forth in the Federal Rules of Civil

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Procedure. Federal Rule of Civil Procedure 45 governs discovery-related subpoenas. Plaintiff
was given leave to proceed in forma pauperis but, generally, litigants must bear their own
discovery costs. See Tabron v. Grace, 6 F.3d 147, 159 (3d Cir. 1999); Badman v. Stark, 139
F.R.D. 601, 606 (M.D. Pa. 1991) (§ 1915 does not require government to advance funds for
deposition expenses). A district court also may not waive or provide for payment of witness fees
required by 28 U.S.C. § 1821(a) to effect service of subpoenas. See Canady v. Kreider, 892
F.Supp. 668, 670 (M.D. Pa.1995). Nor mayan inmate proceeding in forma pauperis in a civil
action issue subpoenas without paying the required fees. See Pedraza v. Jones, 71 F.3d 194, 196
nA (5th Cir. 1995); Fernandez v. Kash N' Karry Food Stores, Inc., 136 F.R.D. 495,496 (M.D.
Fla. 1991) (stating witness and mileage fees required to be paid by indigent plaintiff).
4.

Even if Plaintiff only seeks to have the Parole Board turn over the requested

transcript and/or documents, and does not command the appearance of a representative at a
formal deposition, the question of fees and costs remains. The Federal Rules of Civil Procedure
were not intended to burden a non-party with a duty to suffer excessive or unusual expenses in
complying with a subpoena duces tecum. Plaintiff has not demonstrated his ability to pay for
any costs associated with issuance of the subpoena, such as photocopy fees, witness fees, or
mileage. Therefore, the Motion is DENIED without prejudice. (D.I. 46) The Court will
reconsider the issue upon a showing of Plaintiff s ability to pay for the costs of issuance of the
requested subpoena.
5.

Requests for Counsel. Plaintiffs Requests for Counsel are DENIED without

prejudice to renew. (D.l. 46,47) Plaintiff has previously moved for, and the Court has denied,

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requests for appointment of counsel. (See D.1. 14) Plaintiff seeks counsel on the grounds that he
is unable to afford counsel, and he needs assistance with discovery and trial preparation.
6.

Although a plaintiff does not have a constitutional or statutory right to an

attorney,' a district court may seek legal representation by counsel for a plaintiff who
demonstrates "special circumstances indicating the likelihood of substantial prejudice to [the
plaintiff] resulting ... from [the plaintiffs] probable inability without such assistance to present
the facts and legal issues to the court in a complex but arguably meritorious case." Tabron, 6
F.3d at IS4.
Factors to be considered by a court in deciding whether to request a lawyer to represent an
indigent plaintiff include: (1) the merits of the plaintiff s claim; (2) the plaintiff s 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 plaintiffs ability to pursue such investigation;
(S) 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 ISS-S6.
After reviewing Plaintiff s Motion, the Court concludes that the case is not so factually or
legally complex that requesting an attorney is warranted. In addition, the filings in this case
demonstrate Plaintiffs ability to articulate his claims and represent himself. Finally, nothing has

'See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(stating § 1915(d) (now § 1915(e)(1)) does not authorize federal court to require unwilling
attorney to represent indigent civil litigant); Tabron, 6 F.3d at IS3 (stating there is no right to
counsel in a civil suit).
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changed since the Court last denied Plaintiffs request for counsel on July 13,2010. Thus, in
these circumstances, the Court will deny without prejudice to renew Plaintiffs Requests for
Counsel. (D.I. 46, 47)

UNITED STATES DISTRICT JUDGE

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