Averill v. Celello et al
Filing
60
MEMORANDUM - Signed by Judge Gregory M. Sleet on 6/16/14. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
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) Civ. Action No. 12-599-GMS
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WAYNE R. AVERILL,
Plaintiff,
v.
DR. CHRISTINA JONES, et al.,
Defendants.
MEMORANDUM
I. BACKGROUND
The plaintiff, Wayne R. Averill ("Averill"), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit on May 14, 2012, pursuant to
42 U.S.C. § 1983. (D.I. 3.) Averill appears prose and was granted permission to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. (D.I. 7.) Averill requests counsel and states that he
has ADD, sustained a traumatic brain injury with cognitive deficits, and has an I.Q. of 85. (See
D.I. 55.)
II. STANDARD OF LAW
Federal Rule of Civil Procedure 17(c)(2) provides that "[t]he court must appoint a
guardian ad !item - 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 if the 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 pro se plaintiffs 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, Averill makes bald allegations of mental deficient. However, he 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 17(c)(2).
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.
1
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.").
2
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.
Averill seeks counsel on the grounds that the case is factually complex, he has no legal
training, he has limited access to the law library and legal materials, the case is factually,
medically and legally complex, the case will require expert testimony, he is indigent and cannot
afford an attorney or to retain a medical expert, an attorney will aid in trying this case, and he
has unsuccessfully sought retained counsel.
After reviewing Averill'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 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.
IV. CONCLUSION
For the above reasons, the court will deny Averill's request for counsel without prejudice
to renew. (D.1. 55.)
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