DeVary v. Derosiers et al

Filing 155

MEMORANDUM - Signed by Judge Gregory M. Sleet on 6/13/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
STEPHEN DEVARY,

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) Civ. Action No. 12-150-GMS
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Plaintiff,
v.

DR. DEROSIERS, et al.,
Defendants.

MEMORANDUM
I. BACKGROUND
The plaintiff Stephen De Vary ("De Vary"), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C. § 1983.
He proceeds pro se and was granted leave to proceed in forma pauperis. De Vary requests
counsel and argues that special circumstances exist to grant the motion because he is a mental
health patient and receives psychotropic medication.

II. STANDARD OF LAW
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 to inquire sua sponte under Rule 17(c)(2),
whether a pro se litigant is incompetent to litigate his action and, therefore, is entitled to either
appointment of 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 ifthe court receive[s] 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." Powell, 680 F.3d at 307 (citing Ferrelli
v. River Manor Health Care Ctr., 323 F.3d 196, 201 (2d Cir. 2003)). The court "need not

inquire sua sponte into a prose plaintiff's mental competence based on a litigant's bizarre
behavior alone, even if such behavior may suggest mental incapacity." Id. at 303 (citations
omitted). The decision whether to appoint a next friend or guardian ad litem rests with the sound
discretion of the district court. Powell, 680 F.3d at 303.

III. DISCUSSION
In the instant action, DeVary makes bald allegations of mental illness. DeVary has not
submitted any verifiable evidence of incompetence to this court. Thus, this court has no duty to
conduct a sua sponte determination of competency under Rule l 7(c)(2).
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 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;

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See Mallard v. 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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(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.
After reviewing DeVary'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 DeVary's' ability to articulate his claims and represent himself. Thus, in these
circumstances, the court will deny without prejudice to renew DeVary's request for counsel.

IV. CONCLUSION
For the above reasons, the court finds will deny DeVary's request for counsel.

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o~- '~ ,2014
Wilmington, Delaware

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