McCloskey v. Welch et al

Filing 87

MEMORANDUM. Signed by Judge Gregory M. Sleet on 5/5/2017. (nmg)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
CHAD J. MCCLOSKEY,

)
)
Plaintiff,
)
)
v.
) Civ. No. 14-030-GMS
)
BUREAU CHIEF JAMES WELCH, et al., )
)
Defendants.
)

MEMORANDUM
I.

INTRODUCTION
The plaintiff Chad McCloskey ("McCloskey"), an irunate at the James T. Vaughn

Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983.
He proceeds prose and has been granted leave to proceed informa pauperis. (See D.I. 7.)

II.

BACKGROUND
The court closed this case after McCloskey failed to prosecute and reopened it following

McCloskey's motion for reconsideration. Once reopened, the court ordered McCloskey to
respond to dispositive motions filed by the defendants. His responses were due no later than
January 3, 2017. (See D.I. 78.) To date, McCloskey has not complied with the order. Instead,
on December 14, 2016, he filed the pending request for counsel. (See D.I. 81.) McCloskey
requests counsel on the grounds that he is unable to afford counsel, his imprisorunent greatly
limits his abilities, the issues are complex and require research and investigation, and he has no
law library access.
On February 27, 2017, McCloskey advised the court that he did not respond to the
dispositive motions because the defendants did not provide him with service copies. (D.I. 83.)

The same day, the court mailed Mccloskey copies of the dispositive motions. On April 4, 2017,
McCloskey again advised the court that he had not received service copies of the motions. (D.I.
84.)

III.

DISCUSSION
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 plaintiffs 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 plaintiffs claim;
(2) the plaintiffs 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 plaintiffs ability to
pursue such investigation; (5) the plaintiffs 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.

1

See Mallard v. United States Dist. Court for the S. Dist. ofIowa, 490 U.S. 296 (1989)
(§ 1915(d) (now§ 1915(e)(l)) 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.").
2

After reviewing the plaintiffs 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 the plaintiffs ability to articulate his claims and represent himself. Thus, in
these circumstances, the court will deny without prejudice to renew the plaintiffs request for
counsel. (D.I. 81.) Should the need for counsel arise later, one can be appointed at that time.
Finally, McCloskey will once again be provided with copies of the dispositive motions,
and will be given one final opportunity to respond to the motions. There will be no further
extensions.

IV.

CONCLUSION

For the above reasons, the court will deny McCloskey's request for counsel. (D.I. 81.)
An appropriate order will be entered.

J

,2017

, Delaware

3