Damiani v. Delaware State Police Troop 2 et al

Filing 295

MEMORANDUM ORDER that Plaintiff's request for counsel is denied without prejudice to renew. (D.I. 289 ). Signed by Judge Richard G. Andrews on 6/19/2017. (nmg)

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

v.

: Civ. Action No. 12-1637-RGA

DETECTIVE DUFFY, etal.,
Defendants.
MEMORANDUM ORDER

At Wilmington, this

l~

day of June 2017, having considered Plaintiff's request

for counsel (D.I. 289);
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 not in the
- right state of mind," overly depressed and overwhelmed; he is unskilled in the law; the
case may turn on credibility determinations; expert witnesses will be necessary; he
cannot attain and afford counsel; counsel would serve .the best interest of justice; and his allegations if proved would establish a constitutional violation.
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
C_ir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993). However, representation

1

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.").

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. Plaintiff's bald allegations of
mental health issues, without supporting evidence, do not merit granting his request. In
light of the foregoing, the Court will deny without prejudice to renew Plaintiff's request
for counsel. Should the need for counsel arise later, one can be appointed at that time.

2

IT IS THEREFORE ORDERED that Plaintiff's request for counsel is denied
without prejudice to renew. (D.I. 289).

3