Merillo v. Danberg et al

Filing 108

MEMORANDUM ORDER that: the D.I. 104 MOTION to Appoint Counsel is DENIED without prejudice to renew. Signed by Judge Gregory M. Sleet on 11/4/2015. (klc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CARLO MERILLO, III,
Plaintiff,
v.
JAMES SCARBOROUGH, et al.,
Defendants.

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) Civ. No. 11-333-GMS
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MEMORANDUM ORDER
At Wilmington, this

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day of

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2015, having considered the plaintiffs

request for counsel (D.I. 104.)
I.

INTRODUCTION
The plaintiff, Carlo Merillo, III ("the plaintiff'), an inmate at the James T. Vaughn

Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. (D.I. 3.) He appears prose and was granted permission to proceed informapauperis
pursuant to 28 U.S.C. § 1915. (D.I. 6.)

II.

REQUEST FOR SUBPOENAS
The plaintiff recently filed a letter for subpoena duces tecum forms or how to obtain the

forms. (D.I. 99.) The plaintiff is advised that should request the forms from the prison law
library. The plaintiff is further advised that should he seek to serve subpoenas pursuant to Fed.
R. Civ. P. 45, he shall submit the subpoena to the court for issuance along with a declaration
justifying the subpoena request that explains how the documents he seeks are relevant to his
claims. The plaintiff shall also demonstrate his ability to pay for any costs associated with
issuance of the subpoena, such as photocopy fees, witness fees, or mileage.

III.

REQUEST FOR COUNSEL

The plaintiff seeks counsel on the grounds that the defendants intend to depose him, and
he opposes being deposed without the assistance of counsel. (D.I. 104.) The plaintiff indicates
that, ifhe is not provided counsel, he will decline to speak and/or answer any questions until the
issue of counsel has been resolved. He seeks counsel on the grounds that he: (1) has no legal
training; (2) cannot protect his interest in maintaining his action in face of skilled attorneys, and
(3) must protect himself from the stealth of trained attorneys.
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 1 See Brightwell v. Lehman, 637 FJd 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 plaintiffs 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. 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 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;

1

See Mallardv. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d) (now§ 1915(e)(l)) does not authorize a federal court to require an unwilling attorney
to represent an indigent civil litigant, the operative word in the statute being "request.").
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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 155-56. The
list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at 157.
Assuming, solely for the purpose of deciding this motion, that the plaintiffs claims have
merit in fact and law, several of the Tabron factors militate against granting his request for
counsel. After reviewing the plaintiffs complaint, the court concludes that the case is not so
factually or legally complex that requesting an attorney is warranted. In addition, the plaintiff
has ably represented himself in this case. In light of the foregoing, the court will deny without
prejudice to renew the plaintiffs request for counsel. Should the need for counsel arise later, one
can be appointed at that time.
The plaintiff filed this case and his cooperation in discovery is expected and required.
The plaintiff is placed on notice that sanctions may issue should he impede, delay, or frustrate his
fair examination or fail to attend and proceed with the deposition. See Fed. R. Civ. P. 30(d)(2),
(g).

IV.

CONCLUSION
IT IS THEREFORE ORDERED, that the plaintiffs request for counsel is denied without

prejudice to renew (D.I. 104.)

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