Johnson v. Clendanial et al
MEMORANDUM AND ORDER - that: 1. The motion to reopen case and for mental evaluation (D.I. 17 ) is DENIED as moot. 2. The motion to stay (D.I. 18 ) is DENIED as moot. 3. The motion to strike response to Defendant's motion for summary jud gment (D.I. 19 ) is DENIED, as a summary judgment motion has not been filed. 4. The second motion to reopen case is DENIED as moot, request for counsel is DENIED without prejudice to renew, motion for reconsideration is DENIED as moot, and request for a competency hearing is DENIED. (D.I. 20 ) 5. Because Plaintiff has not provided a mailing address, the Clerk of Court is directed to hand deliver a copy of the Memorandum Order to Plaintiff should he present at the Office of the Clerk. ***Civil Case Terminated. Signed by Judge Leonard P. Stark on 9/6/12. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 10-1149-LPS
MICHAEL CLENDANIAL, et aI.,
At Wilmington this 6th day of September, 2012:
Having considered Plaintiff's pending motions (D.I. 17, 18, 19,20),
IT IS HEREBY ORDERED THAT:
Plaintiff, Ronald Johnson ("Johnson"), a former inmate at the Howard R. Young
Correctional Institution in Wilmington, Delaware, tiled this lawsuit pursuant to 42 U.S.c. §§
1983 and 1986, alleging violations of his civil rights.! Johnson appears pro se and has been
allowed to proceed in forma pauperis. (D.L 5)
Pending before the Court are Johnson's motion to reopen case and for mental
evaluation (D.I. 17), motion to stay (D.L 18), motion to strike response to defendant's motion for
summary judgment (D.I. 19), and second motion to reopen case, request for counsel, for
reconsideration, and for a competency hearing (D.L 20).
IOn July 16,2012, Johnson filed change of address, stating he is no longer incarcerated,
has been homeless for the past thirty days, and has no address to receive maiL (D.L 25) To date,
he has not provided a mailing address.
On March 30,201
the Court dismissed this case for Johnson's failure to serve
Defendants. (See D.L 13) 10hnson filed a motion for reconsideration on May 4,2012, and the
Court reopened the case on June 4, 2012. (See D.l. 14,21) In the interim, 10hnson filed several
motions, most of which are moot. In addition, Johnson 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[ sJ 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." 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 plaintiffs ability to pursue such
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
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.I. 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 of the 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. (ld.)
3See Mallard v. United States Disl. Court for the S. Dis!. 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).
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 lohnson'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 lohnson'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 lohnson'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
lohnson's requests for counsel.
NOW THEREFORE, IT IS HEREBY ORDERED that:
The motion to reopen case and for mental evaluation (D.!. 17) is DENIED as
The motion to stay (D.I. 18) is DENIED as moot.
The motion to strike response to Defendant's motion for summary judgment (D.I.
19) is DENIED, as a summary judgment motion has not been filed.
The second motion to reopen case is DENIED as moot, request for counsel is
DENIED without prejudice to renew, motion for reconsideration is DENIED as moot, and
request for a competency hearing is DENIED. (D.I. 20)
Because Plaintiff has not provided a mailing address, the Clerk of Court is
directed to hand deliver a copy of the Memorandum Order to Plaintiff should he present at the
Office of the Clerk.
UNITED TATES DISTRICT JUDGE
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