Averill v. Celello et al
AMENDED MEMORANDUM ORDER - re 125 Memorandum Order. See order for details. Signed by Judge Gregory M. Sleet on 1/26/2016. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DR. CHRISTINA JONES, et al.,
) Civ. Action No. 12-599-GMS
AMENDED MEMORANDUM ORDER*
At Wilmington, this
U t~ay of ~
, 2016, having considered the pending
motions (D.I. 101, 106, 119.)
MOTION FOR LEAVE TO AMEND
The plaintiff, Wayne R. Averill ("Averill") moves to amend the second amended
complaint (D.I. 24) to include the names of previously unknown Doe Defendants, include
previously unknown information, and raise new claims against the current Delaware Department
of Correction medical contractor. (D.I. 101.) The defendants oppose the motion.
Pursuant to Fed. R. Civ. P. 15(a), a party may amend its pleading once as a matter of
course within twenty-one days after serving it or, if the pleading is one to which a responsive
pleading is required, twenty-one days after service of a responsive pleading or twenty-one days
after service of a Rule 12(b) motion, whichever is earlier. Otherwise, a party may amend its
pleading only with the opposing party's written consent or the court's leave. Rule 15 provides
that courts should freely give leave to amend when justice so requires.
*The order is amended by deleting the following sentences that were found on page five
of the original order at D.I. 125. "In addition, the plaintiff seeks additional time to file an
amended complaint. (D.I. 14.) The plaintiffs motion will be granted."
The Third Circuit has adopted a liberal approach to the amendment of pleadings to ensure
that "a particular claim will be decided on the merits rather than on technicalities." Dole v. Arco
Chem. Co., 921F.2d484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is
not automatic. See Dover Steel Co., Inc. v. Hartford Accident and Indem., 151 F.R.D. 570, 574
(E.D. Pa. 1993). Leave to amend should be granted absent a showing of "undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments
previously allowed, undue prejudice to the opposing party by virtue of the allowance of the
amendment, futility of amendment, etc." Foman v. Davis, 371U.S.178, 182 (1962); See also
Oran v. Stafford, 226 F.3d 275, 291 (3d Cir. 2000). Futility of amendment occurs when the
complaint, as amended, does not state a claim upon which relief can be granted. See In re
Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434 (3d Cir. 1997). If the proposed
amendment "is frivolous or advances a claim or defense that is legally insufficient on its face, the
court may deny leave to amend." Harrison Beverage Co. v. Dribeck Importers, Inc., 133 F.R.D.
463, 468 (D.N.J. 1990).
The second amended complaint was filed on September 23, 2013. (D.I. 24.) On June 23,
2015, the court entered a scheduling order with a deadline of August 24, 2015 to file amended
pleadings. (See D.I. 98.) Averill, however, did not file his motion for leave to amend until
October 13, 2015, almost two months after the deadline had passed.
In addition, the proposed third amended complaint submitted by Averill adds new
defendants and state law claims and consists of 562 paragraphs as compared to the 137
paragraphs of the second amended complaint. The proposed third amended complaint does not
comply with the local rules ofthis court. Pursuant to D. Del. LR 15.l(b) when seeking to amend,
the proposed amended pleading shall indicate in what respect it differs from the pleading which it
amends, by bracketing or striking through materials to be deleted and underlining materials to be
added. New language is not underscored and there are no strikes through proposed deleted
material. As currently pled, it is difficult for the court to discern the differences between the
second amended complaint and the proposed third amended complaint. Moreover, the proposed
third amended complaint, consisting of 562 paragraphs, fails to comply with Fed. R. Civ. P.
8(a)(2) which provides that the pleading contain a short and plain statement of the claims
showing that the pleader is entitled to relief. Finally, Averill proposes to add new defendants for
acts unrelated to the original complaint during a time-frame that took place long after the filing
of the original complaint. This he may not do. Averill has available, the option of filing a new
For the above reasons, the court will deny the motion to amend. As noted in the
December 10, 2013 order, Averill was ordered to immediately move the court for an order
directing amendment of the caption of the Second Amended Complaint once he learned the
identity of the CMS and CCS Doe defendants so that they may be served. (See D.I. 27.)
REQUEST FOR COUNSEL
Averill seeks counsel on the grounds that he is unable to afford counsel, he has sought
counsel to no avail, the case is complex, he has made a jury demand, his imprisonment limits his
ability to investigate, there is conflicting testimony, he has no legal training, he does not
understand discovery procedures, and his case has merit. (D.I. 106.) Averill has previously
requested, and been denied, counsel.
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel.** 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.
After reviewing Averill's request, the court concludes that the case is not so factually or
legally complex that appointing an attorney is warranted. To date, the filings in this case
demonstrate Averill's ability to articulate his claims and represent himself. Thus, in these
circumstances, the court will deny without prejudice to renew Averill's request for counsel. (D.I.
106.) Should the need for counsel arise later, one can be appointed at that time.
**See Mallard v. 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.").
MOTION FOR A PROTECTIVE ORDER
The defendants Christina Jones ("Jones"), Robert Davenport ("Davenport), and Dale
Rodgers ("Rodgers") (collectively "the defendants") move for a discovery protective order
pursuant to Fed. R. Civ. P. 26(c) on the grounds that Averill has served interrogatories that
exceed the twenty-five allowed under Fed. R. Civ. P. 33(a)(l). The defendants indicate that
Averill has served 86 interrogatories on Jones, 46 interrogatories on Davenport, and 50
interrogatories on Rodgers. The defendants further indicate that they are attempting to resolve
the discovery dispute with Averill.
The court will deny the motion as premature without prejudice to renew. The defendants
indicate they are attempting to resolve the discovery dispute. In addition, Fed. R. Civ. P. 33(a)(l)
provides that leave may be granted to serve additional interrogatories. Averill proceeds pro se,
and it may be that he will request leave.
IT IS THEREFORE ORDERED, as follows:
1. The plaintiffs motion to amend is denied. (D.I. 101.)
2. The plaintiffs renewed request for counsel is denied without prejudice to renew.
3. The defendants' motion for protective order is denied as premature without prejudice
to renew. (D.I. 119.)
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