Damiani v. Delaware State Police Troop 2 et al

Filing 114

MEMORANDUM OPINION - Signed by Judge Richard G. Andrews on 11/5/14. (rwc)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Plaintiff,
Civ. No. 12-1637-RGA

v.

DETECTIVE DUFFY, et aI.,
Defendants.

Pablo A. Damiani, James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se
Plaintiff.
Michael F. McTaggart, Deputy Attorney General, Delaware Department of Justice,
Wilmington, Delaware. Counsel for Defendants Detective Duffy, Gary Potts, Daniel
Grassi, Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk, Ronald Kline, Corey
Godek, Detective Tsai, Detective Rhoades, and Detective Glenn.
Charles M. Oberly III, United States Attorney, and Jennifer Lynne Hall and Lauren Mary
Paxton, Assistant United States Attorneys, Wilmington, Delaware. Counsel for
Defendants Casey Bouldin, Detective Morrissey, Ronald Kline, and the United States of
America.
Rosamaria Tassone, Esquire, City of Wilmington Law Department, Wilmington,
Delaware. Counsel for Defendants Wilmington Police Department and Detective
Morrissey.

MEMORANDUM OPINION

~014

November
Wilmington, Delaware

Plaintiff Pablo A. Damiani, an inmate at the James T. Vaughn Correctional
Center, Smyrna, Delaware, filed this action pursuant to 42 U.S.C. § 1983. He appears

pro se and has been granted leave to proceed in forma pauperis (D.1. 7). The case
proceeds on the second amended complaint (D.1. 29) that raised excessive force claims
against Defendants Detective Casey Bouldin, Detective Gary Potts, Corporal Lano,
Detective Duffy, Detective Daniel Grassi, Corporal Eric Daniels, Corporal John
Dudzinski, Sargent Mark Hawk, Detective Ronald Kline, Detective Corey Godek,
Detective Cliff Vikara,1 Detective Morrissey, Detective Giofre, Detective Tsai, Detective
Rhoades, Detective Glenn, Unknown State Police Officers, Unknown New Castle
County Police Officers, Unknown Wilmington Police Officers, and the United States of
America.

BACKGROUND
The second amended complaint alleges that on December 6, 2010, Plaintiff's
vehicle was stopped by members of a joint ATF task force composed of several
plainclothes officers. Plaintiff was handcuffed by Defendant Detective Bouldin who held
onto Plaintiff as he was being removed from the vehicle. Plaintiff alleges that he was
"violently remove[d] from the vehicle through the driver's side door and thrown face first
onto the pavement" was "briefly beaten about the head, upper body and face, and
kicked by the unknown officers." Plaintiff stood, and was escorted to the side of the

1To date, Defendants Vikara and Giofre have not been served, the USM-285
forms indicating that when service was attempted, the Delaware State Police stated that
these defendants were not known to it. (See D.1. 96, 97). Plaintiff will be ordered to
show cause why these defendants should not be dismissed for failure to timely serve
pursuant to Fed. R. Civ. P. 4(m).

road. Plaintiff alleges that he was "beaten, this time for a significantly longer period of
time with his hands cuffed behind his back." Plaintiff alleges that he was punched,
kicked, slapped, spat upon, and hit with a hard object. Plaintiff alleges that next, the
plain clothes officers sat upon him with their knees on his neck and back and waited for
a marked police car to transport him to the police headquarters. Plaintiff asked for
medical attention, and he was taken to the Newark Emergency Center approximately
two and one-half hours later. He alleges that the acts of Defendants violated his rights
under the Eighth Amendment to the United States Constitution and also constitute the
tort of assault and battery under Delaware law. 2 Plaintiff seeks compensatory and
punitive damages.
On May 15, 2014, the United States filed a notice of substitution pursuant to 28
U.S.C. § 2679(d)(1) for Defendants Bouldin, Morrissey, and Kline as set forth in the
Federal Tort Claims Act, 28 U.S.C. § 2675, et seq., with respect to the state law claims
of assault and battery raised against them as they were acting within the scope of their
federal office or employment during the relevant time-frame. (D.I. 70). The United
States moves for dismissal of the claims against it for lack of subject matter jurisdiction
pursuant to Fed. R. Civ. P. 12(b)(1) (D.I. 71), Bouldin moves for dismissal of the Bivens
claims raised against him pursuant to Fed. R. Civ. P. 12(b)(6) (D.I. 72), and the City of
Wilmington and Defendant Wilmington Police Department move to dismiss the claims

2When bringing a claim under 42 U.S.C. § 1983 claim, a plaintiff must allege that
some person has deprived him of a federal right, and that the person who caused the
deprivation acted under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988).
When a litigant sues federal actors for damages on constitutional grounds, the claim is
governed by Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403
U.S. 388, 389 (1971).

2

raised against them in the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6) .
(D.I. 100). In addition, Plaintiff requests counsel. (D.I. 105, 113).

MOTIONS TO DISMISS
Standards of Review
Fed. R. Civ. P. 12(b)(1 ).

Rule 12(b)(1) of the Federal Rules of Civil Procedure

permits the dismissal of an action for "lack of subject matter jurisdiction." A Rule
12(b )(1) motion may be treated as either a facial or factual challenge to the court's
subject matter jurisdiction. See Constitution Party of Pa. v. Aichele, 757 F.3d 347,357­
58 (3d Cir. 2014). "In reviewing a facial attack, 'the court must only consider the
allegations of the complaint and documents referenced therein and attached thereto, in
the light most favorable to the plaintiff.'" Id. at 358 (quoting In re Schering Plough Corp.

v. Intron, 678 F.3d 235, 243 (3d Cir. 2012)). In reviewing a factual attack, the court may
consider evidence outside the pleadings. Mortensen v. First Fed. Sav. and Loan Ass'n,
549 F.2d 884, 891 (3d Cir. 1977).
The United States' motion presents a factual attack upon subject matter
jurisdiction, arguing that this Court lacks jurisdiction over the claims due to the plaintiff's
failure to exhaust his administrative remedies. In reviewing a factual challenge, the
court "is free to weigh the evidence and satisfy itself as to the existence of its power to
hear the case," even where disputed material facts exist. Id. at 891. In a factual
challenge, the plaintiff has the burden of persuasion to show that jurisdiction exists. Id.
Fed. R. Civ. P. 12(b)(6). Under Rule 12(b)(6), a motion to dismiss may be
granted only if, accepting the well-pleaded allegations in the complaint as true and
viewing them in the light most favorable to the plaintiff, a court concludes that those

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allegations "could not raise a claim of entitlement to relief." Bell At!. Corp. v. Twombly,
550 U.S. 544, 558 (2007). "In deciding motions to dismiss pursuant to Rule 12(b)(6),
courts generally consider only the allegations in the complaint, exhibits attached to the
complaint, matters of public record, and documents that form the basis of a claim."
Lum v. Bank of Am., 361 F.3d 217, 221 n.3 (3d Cir. 2004). "Though 'detailed factual
allegations' are not required, a complaint must do more than simply provide 'labels and
conclusions' or 'a formulaic recitation of the elements of a cause of action.'" Davis v.
Abington Mem'l Hosp., 765 F.3d 236, 241 (3d Gir. 2014) (quoting Twombly, 550 U.S. at
555). To survive a motion to dismiss under Fed. R. Giv. P. 12(b)(6), a complaint must
contain sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face. See Williams v. BASF Catalysts LLC, 765 F.3d 306,315 (3d Gir.
2014).
To determine whether a complaint meets the pleading standard as set forth in
Twombly and Ashcroft v. Iqbal, 556 U.S. 662 (2009). the court must: (1) outline the
elements a plaintiff must plead to a state a claim for relief; (2) peel away those
allegations that are no more than conclusions and thus not entitled to the assumption of
truth; and (3) look for well-pled factual allegations, assume their veracity, and then
"determine whether they plausibly give rise to an entitlement to relief." Bistrian v. Levi,
696 F.3d 352, 365 (3d Gir. 2012 ) (internal citations omitted) (citing Iqbal, 556 U.S. at
679; Argueta v. United States Immigration and Customs Enforcement, 643 F.3d 60,73
(3d Gir. 2011). The last step is "a context-specific task that requires the reviewing court
to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679.
Because Plaintiff proceeds pro se, his pleading is liberally construed and, "however

4

inartfully pleaded, must be held to less stringent standards than formal pleadings
drafted by lawyers." Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal quotation
marks omitted).
Discussion
Subject Matter Jurisdiction, Fed. R. Civ. P. 12(b)(1 ). The United States moves
for dismissal of the tort claims raised under the FTCA on the grounds that Plaintiff failed
to exhaust his administrative remedies as is required under the FTCA. (0.1. 71). The
United States provided evidence (in the form of a declaration) that there is no record of
any administrative claim presented by, or on behalf of, Plaintiff from December 2010 to
the present.
Plaintiff responds with case law discussing qualified immunity. (0.1. 77). He
states that he filed a claim with the administrative agency whom he assumed was
responsible for his injuries and that he wrote a letters to the Attorney General, dated
February 14,2012 and November 5,2012 (Id. at 8-9; ex. A-7-10; ex. A-11-12). Both
letters indicate that Plaintiff was not satisfied with the internal affairs' investigation and
ask for an investigation of the occurrence. Also, the February letter asks "for justice."
The U.S. Department of Justice Civil Rights Division responded to Plaintiff and advised
him that the matter would be considered if he provided additional information
concerning the circumstances involved. (Id. at ex. A-13). It was suggested to Plaintiff
that he could obtain information by making a Freedom of Information Act request. (ld.)
The FTCA provides that the United States shall be liable, to the same extent as
a private individual, "for injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the Government while

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acting within the scope of his office or employment [.J" 28 U.S.C. § 1346(b)(1); see also
28 U.S.C. § 2674. As a prerequisite to suit under the FTCA, a claim must first be
presented to the federal agency and be denied by the agency, or be deemed to be
denied. See 28 U.S.C. § 2675(a) ("An action shall not be instituted against the United
States for money damages for injury or loss of property or personal injury ... unless the
claimant shall have first presented the claim to the appropriate Federal agency and his
claim shall have been finally denied by the agency in writing and sent by certified or
registered maiL).
A claim is considered to be presented when the federal agency receives written
notification of the alleged tortious incident and the alleged injuries, together with a claim
for money damages in a sum certain. 28 C.F.R. § 14.2(a). If the receiving federal
agency fails to make a final disposition of the claim within six months from the time it is
filed, that failure is "deemed a final denial of the claim" for purposes of commencing suit
under the FTCA. 28 U.S.C. § 2675(a).
The Third Circuit has instructed that "[i]n light of the clear, mandatory language
of the statute, and [the] strict construction of the limited waiver of sovereign immunity by
the United States, ... the requirement that the appropriate federal agency act on a
claim before suit can be brought is jurisdictional and cannot be waived." Roma v.
United States, 344 F.3d 352, 362 (3d Cir. 2003) (citing Livera v. First Nat'l Bank of New
Jersey, 879 F.2d 1186, 1194 (3d Cir. 1989»; see also McNeil v. United States, 508

U.S. 106, 113 (1993) ("[t]he FTCA bars claimants from bringing suit in federal court until
they have exhausted their administrative remedies.").

6

Full administrative exhaustion is a jurisdictional prerequisite to filing a lawsuit.
Accordingly, where an FTCA lawsuit is filed before the exhaustion process is
completed, the court is compelled to dismiss that action. See Miller v. United States,
517 F. App'x 62,63 (3d Cir. 2013); Roma, 344 F.3d at 362. Moreover, "[a p]laintiff
carries the burden of proof to establish presentment of h[is] claim [to the appropriate
Federal Agency]." Medina v. City of Philadelphia, 219 F. App'x 169, 172 (3d Cir. 2007).
In order to satisfy this burden, "a plaintiff must demonstrate that the appropriate federal
agency actually received the claim." Id. (citations omitted). Presenting a claim requires
more than merely mailing the claim. Lightfoot v. United States, 564 F.3d 625, 628 (3d
Cir. 2009).
Here, the United States submitted a declaration of the Associate Chief Counsel
at the Bureau of Alcohol, Tobacco, Firearms and Explosives who is "responsible for
coordinating the resolution of all FTCA administrative claims presented to ATF and for
maintaining the original files of those claims." (0.1. 17, ex. A). She has no record of
Plaintiff filing any administrative claim. Plaintiff, in turn, does not offer proof of receipt
by the agency. Instead, he refers to letters he wrote to the Attorney General of the
United States wherein he complains of the events that took place on December 6,
2010, seeks an investigation, but does not make a claim for damages in a sum certain.
The letters do not adequately present a claim and fail to meet the exhaustion
requirement under the FTCA. Accordingly, the Court determines that Plaintiff has failed
to meet his burden of establishing subject matter jurisdiction as to the FTCA claims.
Therefore, the Court will grant the United States' motion to dismiss for lack of subject
matter jurisdiction. (0.1. 71).

7

Failure to State a Claim. Fed. R. Civ. P. 12(b)(6). Pursuant to Fed. R. Civ. P.
12(b)(6), Bouldin moves to dismiss the constitutional claims raised against him, as do
the City of Wilmington and the Wilmington Police Department. 3 (0.1.72, 100).
The Wilmington Defendants move for dismissal on the grounds that the Police
Department is not subject to suit and the complaint fails to establish municipal liability.
While Plaintiff filed a response, it does not appear that he opposes the motion. The
Court notes that the City of Wilmington has never been named as a defendant and the
Wilmington Police Department was dismissed as a defendant on July 12, 2013. (See
0.1. 18, 19). The Police Department was not reinstated as a defendant upon the filing
of the Second Amended Complaint, although other defendants were. (See 0.1. 28).
Therefore, the motion will be dismissed as moot as the Wilmington Defendants are no
longer parties to this action.4
Bouldin argues that the excessive force claims against him were raised outside
the applicable two-year limitation period and do not relate back to the date of the
original complaint. Plaintiff opposes the motion, noting that Bouldin was named as a
defendant in the original complaint. (0.1. 87).

3The United States has stated that Bouldin was acting within the scope of his
federal office or employment during the relevant time-frame. Therefore, the allegations
fall under the umbrella of a Bivens claim. See n.2, supra.
4The Wilmington Defendants' belief that they were parties to the suit may stem
from the fact that the chief executive officer of the City of Wilmington was served with a
copy of the Second Amended Complaint. In entering service orders when a plaintiff
proceeds pro se and has been granted in forma pauperis status, it is the Court's
practice to serve the chief executive officer of a governmental entity as a means to alert
it of a lawsuit filed against its employees when the entity is not a named defendant.
(See 0.1. 28).

8

In Bivens actions, the rules for determining the limitation period are the same as
those used in 42 U.S.C. § 1983 actions. See Napier v. Thirty or More Unidentified

Fed. Agents, 855 F.2d 1080, 1087 (3d Cir. 1988). The court looks "to the general,
residual statute of limitations for personal injury actions" from the state where the
federal court sits unless the state limitations period is inconsistent with the Constitution
or federal law. See Lake v. Arnold, 232 F.3d 360, 368 (3d Cir. 2000). The court must
also account for the state's tolling rules. Id. In Delaware, Bivens actions are subject to
a two-year limitations period. See 10 Del. C. § 8119. Plaintiff alleges that excessive
force took place on December 6, 2010. Therefore, any Bivens claim against Bouldin is
barred unless it was filed on or before December 6, 2012, or relates back to the
original, timely filed complaint. The original complaint was filed no later than December
3,2012. 5 (0.1. 2).
Federal Rule of Civil Procedure 15(c) permits a party to file an otherwise
untimely claim in an amended pleading where the claim relates back to the party's
original pleading in the action. Krupski v. Costa Crociere S.p.A., 560 U.S. 538, 540
(2010). An amendment relates back to the original pleading where "the amendment
asserts a claim or defense that arose out of the conduct, transaction, or occurrence set
out-or attempted to be set out-in the original pleading." Fed. R. Civ. P. 15(c)(1 )(B). The

5The computation of time for complaints filed by pro se inmates is determined
according to the "mailbox rule" which deems a complaint or petition filed as of the date
it was delivered to prison officials for mailing to the court. See Houston v. Lack, 487
U.S. 266 (1988); Bums v. Morton, 134 F.3d 109, 112 (3d Cir. 1998); Gibbs v. Decker,
234 F. Supp. 2d 458, 463 (D. Del. 2002). Here, Plaintiff's Complaint was signed on
November 24, 2012, and the envelope it was mailed in is post-marked December 3,
2012. Therefore, plaintiff's complaint was delivered to prison authorities for mailing
some time between November 24, 2012 and December 3, 2012.
9

Court of Appeals has stated that "the touchstone for relation back is fair notice," and
that "only where the opposing party is given 'fair notice of the general fact situation and
the legal theory upon which the amending party proceeds' will relation back be allowed."
Glover v. Federal Deposit Ins. Corp., 698 F.3d 139, 146 (3d Cir. 2012) (quoting Bensel
v. Allied Pilots Ass'n, 387 F.3d 298, 310 (3d Cir. 2004».

The original complaint named Bouldin as a defendant. It contained numerous
allegations concerning the December 6, 2010 incident. Upon screening, the court
noted that Plaintiff alleged what appeared to be a cognizable excessive force claim, but
it did not identify the individuals who allegedly assaulted him. Therefore, Plaintiff was
given leave to amend since it appeared plausible that he could articulate a claim
against the defendants or name alternative defendants. (D.1. 11 at 8). The amended
complaint, filed May 7, 2013, again named Bouldin as a defendant, and its allegations
were specifically directed towards him. Plaintiff was allowed to proceed against Bouldin
following screening of the amended complaint. (D.1. 19). Plaintiff filed a second
amended complaint and again named Bouldin as a defendant. (D.1. 29).
Bouldin argues that the amended complaint (D.1. 15) does not identify him as
having participated in the alleged excessive force. but only as the individual who
handcuffed and held onto Plaintiff until he was removed from the vehicle. Bouldin
contends that the allegations are that the excessive force occurred after Plaintiff was
thrown to the pavement. He also references the testimony he provided at Plaintiff's
criminal trial (attached to the amended complaint) to support his position of his limited
role in Plaintiff's arrest. Bouldin argues that the transcript indicates that Plaintiff knew
what he looked like because he testified at Plaintiff's criminal trial. It is Bouldin's
10

position that despite the foregoing, Plaintiff did not allege in the original complaint or
amended complaint that Bouldin participated in the alleged beating, but instead, both
complaints allege the beating was conducted by unknown officers. 6
Bouldin relies upon Fed. R. Civ. P. 15(c)(1 )(C) and its requirement "that the
defendant to be added to the claim 'knew or should have known that the action would
have been brought against it, but for a mistake concerning the proper party's identity.'"
(D.1. 73 at 10). The amendments, however, are not governed by Rule 15(c)(1 )(C) but
by 15(c)(1 )(B) which provides that an amendment to a pleading relates back to the date
of the original pleading when the amendment asserts a claim or defense that arose out
of the conduct, transaction, or occurrence set out or attempted to be set out - in the
original pleading? Of utmost import is "whether the original complaint adequately
notified the defendants of the basis for liability the plaintiff would later advance in the
amended complaint." See Glover, 698 F.3d at 146 (citations omitted).

6The Second Amended Complaint contains the same basic allegations, but also
alleges that once Plaintiff was thrown to the pavement, he was beaten about the head,
upper body, and face and kicked by the detectives. (D.1. 29). Bouldin is a detective.
7Bouldin argues that there is no relation back when the plaintiff knows the identity
of the party he later seeks to add as a defendant to a claim, citing a number of cases.
Those cases are inapposite as they concern instances when a known party was not
named in the original complaint because the plaintiff made a decision not to include the
defendant. In the instant case, Plaintiff consistently named Bouldin as a defendant,
despite his deficient pleading skills.
In addition, Bouldin incorrectly posits that Plaintiff could have obtained service of
his original complaint pursuant to Fed. R. Civ. P. 4(c)(3) after he was given leave to
proceed in forma pauperis by merely requesting service and that the court would have
been required to grant the request. See In re Forrest, 403 F. App'x 768 (3d Cir. 2010)
(district court is not required to order the United States Marshals Service to serve a
complaint filed by an inmate proceeding in forma pauperis under Fed. R. Civ. P. 4(c)(3)
until it had first screened the case pursuant to 28 U.S.C. § 1915A).
11

The original complaint contains the following allegations:
Officers placed cuffs on Plaintiff's hands, Plaintiff was then violently ripped
from the vehicle, thrown to the pavement and beaten and kicked by these
unknown defendants.

(D.1. 2).
The amended complaint contains the following allegations:
Bouldin placed handcuffs on the plaintiff's hands and held onto them until
plaintiff was removed from the vehicle. As detective Bouldin held
plaintiff's cuffed hands, another unknown officer ran up and smashed out
the plaintiff's passenger side window. Plaintiff was then violently
remove[d] from the vehicle through the driver's side door and thrown face
first onto the pavement. Now the amount of violence used to remove the
already handcuffed 0 plaintiff from the vehicle was so forceful that it
caused plaintiff to lose a show inside the vehicle and suffer a laceration to
his right foot."
(D.I. 15)
Plaintiff proceeds pro se and his Complaint, as well as all amendments, are
liberally construed. The original complaint placed all parties on fair notice that Plaintiff
was attempting to raise excessive force claims. Because he did not point to specific
individuals as is required for personal involvement in claims raising constitutional
violations, his original Complaint was dismissed. Plaintiff, however, was given leave to
amend.
Upon the filing of the Amended Complaint, the Court liberally construed it, as it
must, and determined that, based upon the allegations, Plaintiff adequately alleged
excessive force occurred when Bouldin, as alleged, held onto Plaintiff until he was
removed from the vehicle. The Amended Complaint alleges that Plaintiff was violently
removed from the vehicle and was injured. Given that Bouldin was holding onto Plaintiff

12

and, again liberally construing the complaint, one can infer that Bouldin participated in
the alleged violent removal that injured Plaintiff.
The original complaint was deficiently pled. Nonetheless, the allegations in the
Amended Complaint (that corrected the deficiency) arise from the same factual
occurrence, which fairly construed, implicated Bouldin who was named as a defendant
in the initial complaint. The named parties, one of whom is Bouldin, were given fair
notice of the general fact situation and the legal theory upon which Plaintiff proceeds.
Hence, relation back is proper and the claims against Bouldin were timely filed.
Therefore, the court will deny Bouldin's motion to dismiss pursuant to Fed. R. Civ. P.
12(b)(6).

REQUEST FOR COUNSEL
Plaintiff seeks counsel on the grounds that he is indigent with no legal training, is
confined in administrative segregation, has limited law library access, and no ability to
investigate his case, an attorney is necessary given the conflicting statements of the
parties, defense counsel is flooding him with motions, and the allegations, if proved,
clearly establish a constitutional violation. (0.1. 105, 113).
A pro se litigant proceeding in forma pauperis has no constitutional or statutory
right to representation by counsel. 8 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

8S ee 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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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 anyone factor determinative. Tabron, 6 F.3d
at 157.
Plaintiff has previously requested, and been denied, counsel. Once again
reviewing Plaintiff's requests, 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. Thus,
in these circumstances, the Court will deny without prejudice to renew Plaintiff's request
for counsel. (0.1. 105, 113). Should the need for counsel arise later, one can be
appointed at that time.

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CONCLUSION
For the above reasons, the Court will grant the Motion to Dismiss Plaintiff's
Complaint against the United States for Lack of Subject Matter Jurisdiction (0.1. 71);
deny Bouldin's Motion to Dismiss for Failure to State a Claim (0.1. 72); dismiss as moot
the City of Wilmington and Wilmington Police Department's Motion to Dismiss Plaintiff's
Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6) (0.1. 100); deny without
prejudice to renew Plaintiff's Requests for Counsel (0.1. 105, 113); and order Plaintiff to
show cause why Defendants Vikara and Giofre should not be dismissed. An
appropriate order will be entered.

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