Drumgo v. Kuschel et al
MEMORANDUM Signed by Judge Gregory M. Sleet on 5/18/2017. (lmm)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELA WARE
) Civ. No. 14-1135-GMS
SGT. WILLIAM KUSCHEL,
The plaintiff DeShawn Drumgo ("Drumgo"), an inmate 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 informapauperis. (See D.I. 6.)
On July 22, 2016, the court granted summary judgment in favor of the remaining
defendants based upon Drumgo's failure to exhaust his administrative remedies. (D.I. 59, 60.)
Drumgo appealed. (D.I. 63.) On appeal, the State conceded that Drumgo had exhausted his
administrative remedies as to the defendant Officer Kuschel ("Kuschel"). As a result, the United
States Court of Appeals for the Third Circuit vacated this court's judgment as to Kuschel only
and remanded the matter for further consideration of the claim. See Drumgo v. Kuschel, _F.
App'x _, 2017 WL 1135726 (3d Cir. Mar. 27, 2017). The district court judgment was affirmed
in all other respects. Id.
Drumgo requests counsel on the grounds that all his legal
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following the February 1, 2017 VCC hostage incident. (D.I. 70.)
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discovery that the defense is known for depriving and withholding. (Id.) Kuschel opposes the
A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to
representation by counsel. 1 See Brightwell v. Lehman, 63 7 F .3d 187, 192 (3d Cir. 2011 ); Tabron
v. Grace,6F.3d 147, 153 (3dCir.1993). However,representationbycounselmaybe
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.
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
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.").
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. 70.) Should the need for counsel arise later, one can be appointed at that time.
The court notes that Drumgo is not the first inmate to complain of the destruction of
documents following the February 1, 2017 incident at the VCC. In light of this fact, defendants
will be ordered to provide to plaintiff copies of the following documents as they relate to
remaining defendant Kuschel: answer to complaint (D.I. 23); discovery requests and responses
(D.I. 34, 37, 41); any exhibits submitted to the United States Court of Appeals in Case No. 163308; and a copy of the transcript of the Drumgo's deposition.
The Clerk of Court recently provided Drumgo with a current court docket sheet. (D.I. 72)
The Clerk of Court will be ordered to provide Drumgo with copies of the following docket items
that include the complaint and exhibits filed by Plaintiff and memoranda and orders entered by
the court, as follows: D.I. 3, 9, 10, 26, 31, 40, 43, 57, 59, 60, 61, and 69.
Finally, the court will enter an order to extend the discovery deadline and the deadline for
filing dispositive motions.
For the above reasons, the court will deny Drumgo's request for counsel without
prejudice to renew. (D.I. 70.) An appropriate order will b e tered.
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