Drumgo v. Burris et al

Filing 43

MEMORANDUM AND ORDER denying 41 MOTION to Appoint Counsel and 42 MOTION for Recusal. Signed by Judge Gregory M. Sleet on 4/15/15. (etg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DESHAWN DRUMGO,

)
)

Plaintiff,

)
)

v.

) Civ. No. 12-068-GMS
)

C/O ROOP, et al.,

)
)

Defendants.

)

MEMORANDUM ORDER
At Wilmington, this

t sf~ay of

4r ,~)

2015, having considered the pending

motions (DJ. 41, 42.)
I.

INTRODUCTION
The plaintiff, DeShawn Drumgo ("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 pro se and was granted permission to proceed in for ma pauperis

pursuant to 28 U.S.C. § 1915. (D.I. 5.)

II.

REQUEST FOR COUNSEL
The plaintiff proceeds pro se and has been granted leave to proceed in for ma pauper is.

He seeks counsel on the grounds that he has a limited knowledge of the law, a ninth grade
education, limited amount of resources, limited access to the law library as he is housed in the
Security Housing Unit ("SHU"), and his case has merit and will survive summary judgment.
(D.I. 41.)

A pro se 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 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;
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

See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 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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has ably represented himself in other cases he filed in this court. 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.

III

MOTION FOR RECUSAL
The plaintiff seeks the undersigned's recusal on the grounds that the undersigned has

been assigned to numerous cases he has filed in this court. (D.1. 42.) The plaintiff claims that
the undersigned's "impartiality could be questioned," that the undersigned consistently denies
the plaintiffs motions, and the plaintiff complains of the length of time (be it too long or too
short) to issue decisions.
Pursuant to 28 U.S.C. § 455(a), a judge is required to recuse himself "in any proceeding
in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test for
recusal under§ 455(a) is whether a "reasonable person, with knowledge of all the facts, would
conclude that the judge's impartiality might reasonably be questioned." Jn re Kensington Int'!
Ltd., 368 F.3d 289, 301 (3d Cir. 2004). Under§ 455(b) (1), a judge is also required to recuse
himself "[w]here he has a personal bias or prejudice concerning a party."
Under either subsection, the bias necessary to require recusal generally "must stem from
a source outside of the official proceedings." Liteky v. United States, 510 U.S. 540, 554 (1994);
Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (beliefs or opinions
which merit recusal must involve an extrajudicial factor). Hence, "judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Similarly,
"claims of bias or partiality cannot be based on "expressions of impatience, dissatisfaction,
annoyance, [or] even anger, that are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at
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courtroom administration - even a stem and short-tempered judge's ordinary efforts at courtroom
administration - remain immune." Id. at 555-56.
In light of the foregoing standard and after considering the plaintiffs assertions, the
undersigned concludes that there are no grounds for recusal.
IV.

CONCLUSION

IT IS THEREFORE ORDERED, as follows:
I.

The plaintiffs request for counsel is denied without prejudice to renew (D .I. 41.)

2.

The plaintiffs motion for recusal is denied (D.I.42.)

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