Damiani v. Delaware State Police Troop 2 et al

Filing 286

MEMORANDUM ORDER Denying without prejudice MOTION to Appoint Counsel (D.I. 274 ). Signed by Judge Richard G. Andrews on 5/1/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
PABLO A. DAMIANI,
Plaintiff,

v.

: Civ. Action No. 12-1637-RGA

DETECTIVE DUFFY, et al.,
Defendants.
MEMORANDUM ORDER
At Wilmington, this

tJ

day of May 2017, having considered Plaintiffs request

for counsel (D.I. 274);
Plaintiff Pablo A. Damiani an inmate at the James T. Vaughn Correctional Center
in Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 2). He
appears pro se and was granted permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. (D.I. 7). Plaintiff seeks counsel on the grounds that he is indigent,
has limited legal knowledge and experience, is housed in SHU, and needs assistance in
obtaining his medical records. (D.I. 274). Plaintiff had also complained that he did not
have access to his legal materials or to writing materials but, by the time he submitted
his motion, he had received writing materials. (Id. at Ex. A). In addition, the Court
recently entered an order for Plaintiff to receive copies of pertinent legal documents.
(See D.I. 283).
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
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
1

f

\
I
l

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
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 any one factor determinative. Tabron, 6 F.3d
at 157.
Assuming, solely for the purpose of deciding this motion, that Plaintiff's claims
have merit in fact and law, several of the Tabron factors militate against granting his
request for counsel. After reviewing Plaintiff's complaint, the Court concludes that the
case is not so factually or legally complex that requesting an attorney is warranted. In
addition, Plaintiff has ably represented himself to date. In light of the foregoing, the

"request.").
2

I
;

Court will deny without prejudice to renew Plaintiffs request for counsel. Should the
need for counsel arise later, one can be appointed at that time.
IT IS THEREFORE ORDERED that Plaintiff's request for counsel is denied
without prejudice to renew. (D.I. 274).

3