Giles v. Pumphrey et al
MEMORANDUM ORDER - denying 14 MOTION to Appoint Counsel filed by Wardell Leroy Giles. Signed by Judge Sue L. Robinson on 11/4/13. (mdb)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARDELL LEROY GILES,
ROSL YNN PUMPHREY,
) Civ. No. 13-1065-SLR
At Wilmington this
~ day of November, having considered plaintiff's request
for counsel (D. I. 14);
IT IS ORDERED that the request for counsel (D. I. 14) is denied without
prejudice to renew for the following reasons:
1. Plaintiff Wardell Leroy Giles, an inmate at the Sussex Correctional Institution
in Sussex, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. He appears pro
se and has been allowed to proceed in forma pauperis. (D. I. 4) Plaintiff requests
counsel on the grounds that he is bi-polar, has mental health issues, and takes mental
health medication. (D.I. 14)
2. Federal Rule of Civil Procedure 17(c)(2) provides that "[t]he court must
appoint a guardian ad litem - 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 prose 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
4. 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 prose
plaintiffs mental competence based on a litigant's bizarre behavior alone, even if such
behavior may suggest mental incapacity." /d. 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.
4. In the instant action, plaintiff makes bald allegations of mental illness.
Plaintiff 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
5. 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,
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
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.
6. 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
7. After 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.
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