Drumgo v. Kuschel et al

Filing 26

MEMORANDUM AND ORDER denying 22 MOTION for Recusal, 24 MOTION to Appoint Counsel and 21 MOTION to Appoint Counsel. Plaintiff shall request Clerk to issue summons for the defendant who failed to return the "Waiver of Service of Summons". Plaintiff shall return to Clerk USM 285 form(s) and service copies. Upon receipt, the U.S. Marshal shall personally serve process as directed by plaintiff. (Copy to pltf.). Signed by Judge Gregory M. Sleet on 4/15/15. (etg, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DESHAWN DRUMGO,

)
)
)
)

Plaintiff,
v.

) Civ. No. 14-1135-GMS

SGT. WILLIAM KUSCHEL, et al.,
Defendants.

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)
)
)

MEMORANDUM ORDER
At Wilmington, this /

if"day of fJ.1-; /

2015, having considered the pending

motions (D.I. 21, 22, 24.)
I.

INTRODUCTION
The plaintiff, DeShawn Drumgo ("the plaintiff'), an inmate at the James T. Vaughn

Correctional Center ("VCC"), Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.

§ 1983. (D .I. 3.) He appears pro se and was granted permission to proceed in for ma pauper is
pursuant to 28 U.S.C. § 1915. (D.I. 6.)

II.

REQUEST FOR COUNSEL
The plaintiff proceeds pro se and has been granted leave to proceed in for ma pauperis.

He seeks counsel on the grounds that he has a limited knowledge of the law, a ninth grade
education, limited amount of resources, limited access to the law library as he is housed in the
Security Housing Unit ("SHU"), and his case has merit and will survive summary judgment.
(D.I. 21, 24.) A prose litigant proceeding informa pauperis has no constitutional or statutory

Representation by counsel. 1 See Brightwell v. Lehman, 63 7 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.
Assuming, solely for the purpose of deciding this motion, that the plaintiffs claims have
merit in fact and law, several of the Tabron factors militate against granting his request for
counsel. After reviewing the plaintiffs complaint, the court concludes that the case is not so
factually or legally complex that requesting an attorney is warranted. In addition, the plaintiff
has ably represented himself in other cases he filed in this court. Also, to date, service has not

See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 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.").
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been effected upon all remaining defendants. In light of the foregoing, the court will deny
without prejudice to renew the plaintiffs requests for counsel. Should the need for counsel arise
later, one can be appointed at that time.

III

MOTION FOR RECUSAL
The plaintiff seeks the undersigned's recusal on the grounds that the undersigned has

been assigned to numerous cases the plaintiff has filed in this court. (D.1. 22.) The plaintiff
claims that the undersigned's "impartiality could be questioned," that the undersigned
consistently denies the plaintiffs motions and, finally, the plaintiff complains of the length of
time (be it too long or too short) to issue decisions.
Pursuant to 28 U.S.C. § 455(a), a judge is required to recuse himself "in any proceeding
in which his impartiality might reasonably be questioned." 28 U.S.C. § 455(a). The test for
recusal under§ 455(a) is whether a "reasonable person, with knowledge of all the facts, would
conclude that the judge's impartiality might reasonably be questioned." In re Kensington Int'/
Ltd., 368 F.3d 289, 301 (3d Cir. 2004). Under§ 455(b) (1), a judge is also required to recuse
himself "[w]here he has a personal bias or prejudice concerning a party."
Under either subsection, the bias necessary to require recusal generally "must stem from
a source outside of the official proceedings." Liteky v. United States, 510 U.S. 540, 554 (1994);
Selkridge v. United of Omaha Life Ins. Co., 360 F.3d 155, 167 (3d Cir. 2004) (beliefs or opinions
which merit recusal must involve an extrajudicial factor). Hence, "judicial rulings alone almost
never constitute a valid basis for a bias or partiality motion." Liteky, 510 U.S. at 555. Similarly,
"claims of bias or partiality cannot be based on "expressions of impatience, dissatisfaction,
annoyance, [or] even anger, that are within the bounds of what imperfect men and women, even
after having been confirmed as federal judges, sometimes display. A judge's ordinary efforts at

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courtroom administration - even a stem and short-tempered judge's ordinary efforts at courtroom
administration - remain immune." Id. at 555-56.
In light of the foregoing standard and after considering the plaintiffs assertions, the
undersigned concludes that there are no grounds for recusal.
IV.

SUPPLEMENTAL SERVICE

A review of the file indicates that one defendant has not returned the waiver of service of
summons form. Pursuant to Fed. R. Civ. P. 4(b), (c)( 1), and (c )(3 ), the plaintiff shall request the
Clerk of Court to prepare a summons for the defendant who failed to return the "Waiver of
Service of Summons." The plaintiff shall also complete and return to the Clerk of Court an
original "U.S. Marshal-285" form and a copy of the complaint (D.I. 3) for personal service upon
the defendant. Failure to request issuance of summons and to provide a complete "U.S. Marshal
285" form and copy of the complaint within 30 days from the date of this order may result in the
dismissal of the defendant pursuant to Federal Rule of Civil Procedure 4(m).
Upon receipt of the request for issuance of summons, the USM-285 form and copy of the
complaint required by the above paragraph, the Clerk of Court shall issue the summons and
transmit the summons, USM-285 form(s), copy of the complaint, the filing fee orders, and a
copy of this order to the United States Marshals Service ("USMS") for immediate service
pursuant to Fed. R. Civ. P. 4(c). The USMS shall personally serve process and a copy of this
order upon the defendant(s) pursuant to Rule 4 of the Federal Rules of Civil Procedure and 28
U.S.C. § 566(c).
Within ten days after personal service is effected, the USMS shall file the return of
service for the defendant(s), along with evidence of any attempts to secure a waiver of service of
process and of the costs subsequently incurred in effecting service on said defendant(s). Said
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costs shall be enumerated on the USM-285 form. Costs of service will be taxed against the
personally served defendant in accordance with the provisions of Federal Rule of Civil
Procedure 4(d)(2) unless the defendant shows good cause for such failure.

V.

CONCLUSION
IT IS THEREFORE ORDERED, as follows:
1.

The plaintiff's requests for counsel are denied without prejudice to renew (D.I.

2.

The plaintiff's motion for recusal is denied (D.1.22.)

3.

Service of the defendants is supplemented as set forth above in Section

21, 24.)

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