Robinson v. Beckles et al

Filing 107

MEMORANDUM ORDER - denying 98 Letter/Motion for Injunctive Relief, denying without prejudice 105 MOTION to Appoint Counsel filed by Gregory F. Robinson. Signed by Judge Sue L. Robinson on 9/1/2011. (ksr)

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF DELAWARE

GREGORY F. ROBINSON,
Plaintiff,
v.
SGT. WILFRED BECKLES, et aI.,
Defendants.

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) Civ. No.1 0-362-SLR
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MEMORANDUM ORDER
At Wilmington this 1 5t day of September, 2011, having considered plaintiff's
letter/motion for injunctive relief and request for counsel (0.1. 98, 105);
IT IS ORDERED that the motion and request for counsel are denied, for the
reasons that follow:
1. Background. Plaintiff Gregory F. Robinson ("plaintiff"), a prisoner
incarcerated at the James T. Vaughn Correctional Center, Smyrna, Delaware, filed a
complaint pursuant to 42 U.S.C. § 1983. On August 1, 2011, plaintiff filed a
letter/motion for injunctive relief to enjoin defendants from retaliating against him. (0.1.
98) Plaintiff has filed numerous motions for injunctive relief, all of them denied, and this
instant letter/motion is either his eighth or ninth letter complaining of retaliation by
defendants. The letter contains a litany of specific acts taken against plaintiff including
the denial of medication, water, and showers; the taking or destruction of his legal
materials; and the receipt of twenty to twenty-five disciplinary reports within a two month
period. At the time plaintiff filed his letter/motion, most defendants had been served but

had yet to appear. Accordingly, the court ordered Warden Perry Phelps ("Phelps") to
respond to each alleged retaliatory act as described by plaintiff. (See D.1. 99)
2. Standard. A preliminary injunction is "an extraordinary remedy that should be
granted only if (1) the plaintiff is likely to succeed on the merits; (2) denial will result in
irreparable harm to the plaintiff; (3) granting the injunction will not result in irreparable
harm to the defendant; and (4) granting the injunction is in the public interest."

NutraSweet Co. v. Vit-MarEnterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999)
("NutraSweet II"). The elements also apply to temporary restraining orders. See
NutriSweet Co. v. Vit-Mar Enterprises., Inc., 112 F.3d 689, 693 (3d Cir. 1997)
("NutraSweet /") (a temporary restraining order continued beyond the time permissible
under Rule 65 must be treated as a preliminary injunction, and must conform to the
standards applicable to preliminary injunctions). "[F]ailure to establish any element in [a
plaintiff's] favor renders a preliminary injunction inappropriate." NutraSweet II, 176 F.3d
at 153. Furthermore, because of the intractable problems of prison administration, a
request for injunctive relief in the prison context must be viewed with considerable
caution. Rush v. Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Cir. 2008)
(not published) (citing Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995».
3. Discussion. Plaintiff seeks to enjoin defendants from engaging in retaliatory
acts against him. Perry addressed each of plaintiff's complaints and provided the
affidavits of Cpl. Jason Arrington, Stanford Henry, Pernell Rodocker, Mike Little, and
Wilfred Beckles. In addition, Perry provided twenty-three disciplinary reports issued to
plaintiff, all as a result of violations of prison rules and regulations.

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4. Proof of a retaliation claim requires that plaintiff demonstrate: (1) he engaged
in protected activity; (2) he was subjected to adverse actions by a state actor; and (3)
the protected activity was a substantial motivating factor in the state actor's decision to
take adverse action. Anderson v. Davila, 125 F.3d 148, 160-61 (3d Gir. 1997) (citing

Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U . S. 274 (1977»; see also Allah
v. Seiverling, 229 F.3d 220 (3d Gir. 2000).
5. Upon review of the allegations made by plaintiff, the court concludes that he
has not demonstrated the likelihood of success on the merits. Indeed, each of his
claims has been refuted by sworn statements and the disciplinary reports that also
support defendants' position. Finally, granting injunctive relief is in contravention of the
public's interest in the effective and orderly operation of its prison system. Carrigan v.

State of Delaware, 957 F. Supp. 1376, 1385 (D. Del. 1997).
6. Request for counsel. Plaintiff's renewed request for counsel is denied
without prejudice to renew. (D. I. 105) This is either the seventh or eighth time plaintiff
has requested counsel. 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 Gir. 1981); Parham v. Johnson, 126 F.3d 454, 456-57 (3d Gir. 1997).
It is within the court's discretion to seek representation by counsel for plaintiff, and this
effort is made only "upon a showing of special circumstances indicating the likelihood of
sUbstantial prejudice to [plaintiff] resulting ... from [plaintiff's] probable inability without
such assistance to present the facts and legal issues to the court in a complex but
arguably meritorious case." Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Gir. 1984);

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accord Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (representation by counsel may

be appropriate under certain circumstances, after a finding that a plaintiffs claim has
arguable merit in fact and law).
7. 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 plaintiffs 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).
8. To date, plaintiff has shown that he possesses the ability to adequately
pursue his claims. Upon consideration of the record, the court is not persuaded that
appointment of counsel is warranted at this time.
9. Conclusion. For the above reasons, the court will deny plaintiffs motion for
injunctive relief. (0.1. 98) Plaintiff is placed on notice that future repetitive motions
seeking injunctive relief will be docketed, but not considered. Finally, the court will deny
without prejudice plaintiffs requestfor counsel. (0.1. 105)

UNITED STAT S DISTRICT JUDGE

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