Giles v. Pumphrey et al

Filing 28

MEMORANDUM. Signed by Judge Sherry R. Fallon on 4/15/14. (cla, ) Modified on 4/17/2014 (cla, ).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARDELL LEROY GILES,

)
)

Plaintiff,

)
)
) Civ. No. 13-1065-SLR-SRF

v.
ROSL YNN PUMPHREY,

)
)
)

Defendant.

)

MEMORANDUM

I. BACKGROUND
Plaintiff Wardell Leroy Giles ("plaintiff'), was a prisoner incarcerated at the
Sussex Correctional Institution ("SCI"), Georgetown, Delaware at the time he filed his
complaint under 42 U.S.C. § 1983, along with an application to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. He proceeds prose and has been granted
leave to proceed in forma pauperis.

II. RELEASE FROM PRISON
On June 20, 2013, the court entered an order, granted plaintiff leave to proceed
in forma pauperis and assessed a filing fee of $350.00. (D.I. 4) To date, plaintiff has
paid $61.48 towards the $350.00 filing fee. On April 10, 2014, the court was advised
that plaintiff had been released from prison. Under the Prison Litigation Reform Act,
release does not eliminate the obligation of payment of a filing fee that could and
should have been met from the trust account while imprisonment continued. Robbins v.

Switzer, 104 F.3d 895, 899 (71h Cir. 1997); see also Drayerv. Attorney General, 81 F.
App'x 429 (3d Cir. 2003) (unpublished). Therefore, plaintiff will be ordered to either file

a long form application to proceed without prepayment of fees and affidavit or pay the
balance of the $350.00 filing fee owed.

Ill. MOTION OF JUDICIAL NOTICE AND REQUEST FOR DOCUMENTS
Plaintiff seeks copies of the complaint and amended complaint for service upon
defendants. (D. I. 20) The motion will be denied as moot. Service packets were
forwarded to the United States Marshals Service on March 18, 2014.
IV. REQUEST FOR COUNSEL
Plaintiff seeks counsel on the grounds that he is bi-polar and has other mental
health diagnoses for which he receives medications. (D.I. 24) Because plaintiff raises
the issue of mental health, the court addresses whether plaintiff is competent within the
meaning of Fed. R. Civ. P. 17(c) and considers plaintiff's requests for counsel.
A. Standard of Law

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 is, therefore, 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

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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
plaintiff's 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.

B. Discussion
Here, plaintiff indicates bipolar that he is bi-polar and has other mental health
diagnoses for which he receives medications. Attached to the motion is a memo from
the Sussex Correctional Mental Health Department dated March 13, 2014, that
indicates plaintiff is treated for bipolar disorder, is currently on medication, and appears
to be stable. The evidence suffices to place the court on notice that a Rule 17 inquiry is
appropriate.
It is undisputed that plaintiff receives treatment for bipolar disorder. However,
the record indicates that plaintiff is stable. Plaintiff has filed numerous pleadings in this
case. The pleadings are articulate, well-reasoned, and address the issues raised in the
complaint. In addition, there is no verifiable evidence that plaintiff is unable to
understand the legal proceedings he initiated. For these reasons, the court finds that

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the medical evidence of record is sufficiently unpersuasive to support a finding of
incompetency.
Under the circumstances, the evidence of incompetency fails to support a
conclusion that plaintiff is incompetent. Inasmuch as there is no substantial question
regarding the competence of plaintiff, it is not necessary to conduct a Rule 17(c)
competency hearing. For the above reasons, the court finds that it is unnecessary to
appoint a guardian or counsel to represent plaintiff's interests.

C. Request for Counsel
Plaintiff requests counsel based upon his treatment for bipolar disorder. 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 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, including:
(1) the plaintiff's ability to present his or her own case;
(2) the difficulty of the particular legal issues; (3) the degree
to which factual investigation will be necessary and the ability
of the plaintiff to pursue investigation; (4) the plaintiff's capacity
to retain counsel on his own behalf; (5) the extent to which a
case is likely to turn on credibility determinations; and
(6) whether the case will require testimony from expert witnesses.
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.").

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See Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002); Tabron, 6 F.3d at 155-

57. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d at
157.
After reviewing plaintiff's request, the court concludes that the factors weigh
against representation by counsel. As discussed above, 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.
Should the need for counsel arise later, the issue can be addressed at that time. The
request will be denied without prejudice to renew.
V. SERVICE
Defendant Roslynn Pumphrey ("Pumphrey"), the sole remaining defendant, has
not yet been served. Service was attempted on Pumphrey at the SCI, but the USM-285
form was returned to sender from the facility. Plaintiff is now released. He will be given
additional time to locate an address for Pumphrey and provide it to the court so that she
may be served.

VI. CONCLUSION
For the above reasons: (1) plaintiff will be ordered to either file a long form
application to proceed without prepayment of fees and affidavit or pay the balance of
the $350.00 filing fee owed; (2) the motion of judicial notice (D.I. 20) will be denied as
moot; (3) the request for counsel (D.I. 24) will be denied without prejudice to renew; and

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(4) plaintiff will be given additional time to locate an address for Pumphrey and provide
it to the court so that she may be served.
An appropriate order will be entered.

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W1 mmgton, Delaware

~
iJNiT~~RATE JUDGE
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