Hester v. Phelps et al
MEMORANDUM ORDER - denying without prejudice 110 MOTION to Appoint Counsel, denying 115 Letter/Motion for Injunctive Relief. Signed by Judge Leonard P. Stark on 3/17/14. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
Civ. No. 12-001-LPS
PERRY PHELPS, et al.,
Pending before the Court are Plaintiffs request for counsel (D .I. 11 0) and letter/motion
for injunctive relief (D.I. 115). For the reasons given below, the Court will deny the motions.
Plaintiff Cornell Hester ("Plaintiff'), filed this action pursuant to 42 U.S.C. § 1983
alleging violations of his constitutional rights. (D.I. 2) Plaintiff is incarcerated at the James T.
Vaughn Correctional Center ("VCC") in Smyrna, Delaware, appears prose, and has been granted
leave to proceed in forma pauperis. (D.I. 9) The motion for injunctive relief alleges retaliation
and seeks a transfer to a different correctional facility.
REQUEST FOR COUNSEL
Plaintiff requests counsel on the grounds that: (1) he is not a resident of the State of
Delaware; (2) he is indigent; (3) he has no knowledge or experience in the State of Delaware's
statutes or laws; (4) he does not have legal training or the skill to litigate his case; (5) without an
attorney he will be prejudiced and he will not receive a fair trial; and (6) counsel will aid in the
discovery process. (D.I. 11 0)
Although a plaintiff does not have a constitutional or statutory right to an attorney, 1 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 154.
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; 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.
After reviewing Plaintiffs request, 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. Thus, in these
circumstances, the Court will deny the request for counsel without prejudice to renew. (D.I. 110)
See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989)
(stating§ 1915(d) (now§ 1915(e)(l)) does not authorize federal court to require unwilling
attorney to represent indigent civil litigant); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993)
(stating there is no right to counsel in a civil suit).
"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-Mar Enters., Inc., 176
F.3d 151, 153 (3d eir. 1999). Because ofthe intractable problems ofprison administration, a
request for injunctive relief in the prison context must be viewed with considerable caution. See
Abraham v. Danberg, 322 F. App'x 169, 170 (3d eir. Apr. 24, 2009) (not published) (citing Goff
v. Harper, 60 F.3d 518, 520 (8th eir. 1995)).
Plaintiff claims retaliation resulted in his reclassification to maximum level security
status and transfer to maximum security. He is currently housed at the vee. Plaintiff seeks a
transfer to any other correctional institution.
Defendant Perry Phelps ("Phelps"), the former warden at the vee, responds that
injunctive relief is not appropriate because Plaintiff cannot show a reasonable likelihood of
success on the merits or that he will face irreparable harm. Phelps refers to Plaintiffs record of
disciplinary violations that were considered in reclassifying and transferring Plaintiff. Exhibits
attached to Phelps' response support his position. Plaintiff received numerous write-ups in 2011
and was found guilty each time. In addition, in May 2013, Plaintiff attempted to correspond with
the victim of his crimes despite the fact that his sentencing order barred him from contacting
them. His actions resulted in his transfer to the Security Housing Unit ("SHU").
Proof of a retaliation claim requires Plaintiff demonstrate that: ( 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.
See Carter v. McGrady, 292 F .3d 152, 158 (3d Cir. 2002) (citing Mt. Healthy Bd. of Educ. v.
Doyle, 429 U.S. 274, 287 (1977)); see also Allah v. Seiverling, 229 F.3d 220 (3d Cir. 2000) (a
factfinder could conclude that retaliatory placement in administrative confinement would "deter a
person of ordinary firmness from exercising his First Amendment rights" (citations omitted)).
"[O]nce a prisoner demonstrates that his exercise of a constitutional right was a substantial or
motivating factor in the challenged decision, the prison officials may still prevail by proving that
they would have made the same decision absent the protected conduct for reasons reasonably
related to a legitimate penological interest." Rauser v. Horn, 241 F.3d 330, 334 (3d Cir. 2001).
When analyzing a retaliation claim, courts consider that the task of prison administrators and
staff is difficult, and that the decisions of prison officials require deference, particularly where
prison security is concerned.
Plaintiff has not shown he is likely to meet any of the elements of a retaliation claim. See
id. Nor has Plaintiff demonstrated the elements necessary to grant injunctive relief. Notably, he
has not demonstrated the likelihood of success on the merits and, there is no indication that, at
the present time, Plaintiff is in danger of suffering irreparable harm. Finally, Plaintiff seeks a
transfer to a different correctional facility, but the Delaware Supreme Court has recognized that
prison officials have discretion to house inmates at the facilities they choose. See Walls v.
Taylor, 2004 WL 906550 (Del. 2004) (table) (citing Brathwaite v. State, No. 169, 2003 (Del.
Dec. 29, 2003)). Furthermore, the United States Supreme Court has held that an inmate has no
due process right to be incarcerated in a particular institution. See Olim v. Wakinekona, 461 U.S.
238, 251 (1983).
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
Plaintiffs request for counsel (D.I. 11) is DENIED without prejudice to renew.
Plaintiffs motion for injunctive relief(D.I. 115) is DENIED.
Dated: March 17, 2014
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