Hester v. Phelps et al

Filing 98

MEMORANDUM ORDER denying 71 MOTION for Injunctive Relief, denying 76 MOTION to Appoint Counsel, denying 87 MOTION to Appoint Counsel, denying as moot 84 MOTION for Extension of Time, denying as moot 90 MOTION to Withdraw. Signed by Judge Leonard P. Stark on 11/13/13. (cla, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CORNELL HESTER,
Plaintiff,
v.

Civ. No. 12-001-LPS

PERRY PHELPS, et al.,
Defendants.

MEMORANDUM ORDER
Pending before the Court are Plaintiffs motion for injunctive relief(D.I. 71), requests for
counsel (D.I. 76, 87), motion for an extension of time (D.I. 84), and motion to withdraw notice of
appeal (D.I. 90).
I.

BACKGROUND
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 in Smyrna, Delaware, appears pro se, and has been granted leave to
proceed in forma pauperis. (D.I. 9)

II.

INJUNCTIVE RELIEF
Plaintiff filed a motion for placement back to full minimum status (D.I. 71), which is

construed by the court as a motion for injunctive relief.

A.

Le~al

Standards

"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 Cir. 1999). Because ofthe intractable problems ofprison administration, a
request for injunctive relief in the prison context must be viewed with considerable caution.

Abraham v. Danberg, 322 F. App 'x 169, 170 (3d Cir. Apr. 24, 2009) (citing Goffv. Harper, 60
F.3d 518, 520 (8th Cir. 1995)).

B.

Discussion

It is well established that an inmate does not possess a liberty interest arising from the

Due Process Clause in assignment to a particular custody level, security classification, or place of
confinement. See Wilkinson v. Austin, 545 U.S. 209 (2005); Olim v. Wakinekona, 461 U.S. 238,
245 (1983); Meachum v. Fano , 427 U.S. 215, 224-25 (1976). Moreover, the placement or
classification of state prisoners within the State prison system is among the "wide spectrum of
discretionary actions that traditionally have been the business of prison administrators rather than
of the federal courts." Meachum , 427 U.S. at 225 .
Having considered the facts and the law, the Court finds that Plaintiff has not
demonstrated that injunctive relief is appropriate. Therefore, the Court will deny the motion.
(D.I. 71).

III.

REQUEST FOR COUNSEL
Plaintiff seeks counsel on the grounds that he does not have the ability to present his own

case, he is unskilled in the law and the issues are complex, the case may turn on credibility
issues, expert witnesses will be necessary, he cannot afford counsel, counsel would serve the best

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interests of justice, he needs assistance with discovery, and his allegations, if proven, would
establish a constitutional violation. (D.I. 76, 87) A prose litigant proceeding in forma pauperis
has no constitutional or statutory right to representation by counsel. 1 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. 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 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 plaintiff's ability to
pursue such investigation; (5) the plaintiff's 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. The list
is not exhaustive, nor is any one factor determinative. Tabron , 6 F.3d at 157.
After reviewing Plaintiff's request, 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 Plaintiff's ability to articulate his claims and represent himself. Finally, should the

'See Mallardv. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989)
(§ 1915(d) (now§ 1915(e)(1)) 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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need for counsel arise, the issue may be addressed at that time. Thus, in these circumstances, the
Court will deny without prejudice to renew Plaintiffs request for counsel. (D.I. 76, 87)
IV.

MISCELLANEOUS MOTIONS
The Court will deny as moot Plaintiffs motion for an extension of time (D.I. 84) to

comply with the July 29, 2013 order regarding service of unserved parties. To date, all
defendants have been served. The court will deny as moot Plaintiffs motion for withdrawal of
appeal (D.I. 90), the appeal having been dismissed by the United States Court of Appeals for the
Third Circuit on October 16, 2013 .

V.

CONCLUSION
NOW, THEREFORE, IT IS HEREBY ORDERED THAT:
1.

The motion for injunctive relief(D .I. 71) is DENIED.

2.

The requests for counsel (D.I. 76, 87) are DENIED without prejudice to renew.

3.

The motion an extension of time (D.I. 84) is DENIED as moot.

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