Drumgo v. Kuschel et al

Filing 57

MEMORANDUM AND ORDER. Motion D.I 52 is denied without prejudice to renew:Signed by Judge Gregory M. Sleet on 4/27/2016.(aah)

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

SGT. WILLIAM KUSCHEL, et al.,
Defendants.

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MEMORANDUM ORDER
At Wilmington, this

J., 1~ay of

'1f /,'/

2016, having considered the plaintiffs

request for counsel (D.1. 52);
IT IS ORDERED that the motion (D.I. 52) is denied without prejudice to renew, for the
reasons that follow:
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 prose and was granted permission to proceed informa pauperis
pursuant to 28 U.S.C. § 1915. The plaintiff seeks counsel on the grounds that he is unable to
obtain discovery in full, has limited knowledge of the law, has established that genuine material
facts exist and a trial is needed, has limited resources, has established a dispute of facts, and has
demonstrated that he was sexually assaulted. (D.I. 52.)
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 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 plaintifr s claim has arguable merit
in fact and law. 1 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 plaintifr s claim;
(2) the plaintifrs 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 plaintifrs ability to
pursue such investigation; (5) the plaintifrs 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 plaintifrs claims have
merit in fact and law, several of the Tabron factors militate against granting his request for
counsel. After reviewing the plaintifr s complaint, the court concludes that the case is not so
factually or legally complex that requesting an attorney is warranted. In addition, to date the
plaintiff has ably represented himself in this case. Further, should the plaintiff have difficulties
in obtaining discovery, he has the option of seeking relief from the court. In light of the
foregoing, the court will deny without prejudice to renew the plaintifr s request for counsel.

See Mallardv. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296 (1989)
(§ l 915(d) (now§ l 915(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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Should the need for counsel arise later, one can be appointed at that time. Accordingly, the
plaintiffs request for counsel is denied (DJ. 52) without prejudice to renew.

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