Jones v. Pierce et al

Filing 86

MEMORANDUM ORDER denying 83 MOTION to Appoint Counsel. Signed by Judge Colm F. Connolly on 11/2/2018. (crb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MICHAEL L. JONES,
Plaintiff,
: Civ. No. 15-1007-CFC

V.

WARDEN DAVID PIERCE, et al.,
Defendants.

MEMORANDUM ORDER
At Wilmington, this~

day of November 2018, having considered Plaintiff's fifth

request for counsel (0 .1. 83);
IT IS ORDERED that Plaintiff's request for counsel (0.1. 83) is DENIED without
prejudice to renew, for the reasons that follow:
Plaintiff Michael L. Jones ("Plaintiff''), a former inmate at the James T. Vaughn
Correctional Center ("VCC") in Smyrna, Delaware, now housed within the Pennsylvania
Department of Corrections, SCI Dallas in Dallas, Pennsylvania, commenced this action
on November 15, 2015.

The remaining Defendants include former VCC Warden David

Pierce and Ms. Jassa and J. Krafcik, both of whom are registered nurses, all other
Defendants having been dismissed.

(See 0.1. 81, 85)

Plaintiff raises medical needs claims.

Because Plaintiff's Complaint arguably

raised a medical negligence claim under Delaware law, Medical Defendants moved to
dismiss the supplemental claim on January 12, 2018 for Plaintiff's failure to comply with
18 Del. C. § 6853(a)(1 ), which requires a plaintiff to submit an affidavit of merit as to

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each defendant signed by an expert witness at the time the complaint is filed.
did not file an opposition to the motion, and the claim was dismissed.

Plaintiff

(D.I. 81)

After dismissal of the medical negligence claim, Plaintiff filed a renewed request
for counsel on August 17, 2018, stating it was impossible for him to obtain an affidavit of
merit because he does not have an attorney or any means to obtain expert testimony or
expert witness to submit an affidavit of merit as is required under Delaware law.
83)

Plaintiff has previously sought counsel. 1 (See D.I. 5, 21, 47, 77)

(D.I.

The previous

requests for counsel speak to Plaintiff's constitutional claims and do not mention a
medical negligence claim.

None of the prior requests sought counsel on the grounds

that an attorney was necessary to aid Plaintiff in seeking an affidavit of merit.

Nor do

any of the previously filed requests for counsel state that an expert is necessary to aid
in obtaining an affidavit of merit or that an expert is necessary for any reason.

Now, for

the first time, and only after the medical negligence claim was dismissed, does Plaintiff
seek counsel for this reason.
Notably, prior to dismissal, Plaintiff did not file an affidavit (even a non-compliant
affidavit) or move for an extension to file an affidavit which Delaware's statute allows if a
plaintiff can show good cause for his inability to submit an affidavit of merit.

See 18

Del. C. § 6853(a)(2). 2 And, even after being apprised of these requirements by Medical

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Each motion was denied without prejudice to renew.

In fact, Plaintiff appeared to have abandoned the case. He failed to advise the Court
of his transfer to the Pennsylvania Department of Corrections; did not provide the Court
with his new address, which the Clerk's Office received only after it requested it from the
Delaware Department of Correction; and took no action from June 29, 2017, until July
10, 2018, when he responded to an order to show cause why the case should not be
dismissed for failure to prosecute. (See D.I. 78, 79)
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Defendants' motion, Plaintiff did not seek an extension of time to submit the required
affidavit of merit.

Nor has he ever sought an extension in this regard.

It was only after

dismissal that Plaintiff sought to remedy the issue of the required affidavit of merit.
Given Plaintiff's actions, or the lack thereof, it was appropriate to dismiss the medical
negligence claims for failure to file an affidavit or to move for an extension of time to file
the required affidavit.

See Woods v. First Correctional Med., Inc., 446 F. App'x 400,

405 (3d Cir. 2011 ).
Finally, under 18 Del. C. § 6856, a plaintiff has two years to bring a medical
negligence suit.

However, without a proper affidavit, a complaint sounding in medical

negligence is insufficient and the statute of limitation will not be tolled.

See Benson v.

Mow, 2014 WL 7007758, at *2 (Del. Super. Dec. 4, 2014) (Complaint, although filed
within the proper period, was accompanied by a non-statutorily compliant affidavit of
merit and was time-barred as not filed within the statutory period).
face of the Complaint, that Plaintiff's claims are now time-barred.

It is clear from the
Plaintiff may not

change the course of this litigation at this late juncture by requesting assistance of
counsel in the futile mission of obtaining an affidavit of merit for a time-barred claim.
The medical negligence claim lacks arguable merit as it is time-barred and, therefore,
representation by counsel is not appropriate.

See Tabron v. Grace, 6 F.3d 147, 158

(3d Cir. 1993); compare e.g., Colston v. Correctional Med. Services, 256 F. App'x 551
(3d Cir. 2007) (appointment of counsel appropriate in prisoner case raising Eighth
Amendment and medical malpractice claims where Tabron factors were met, including
that claims were arguably meritorious).

Therefore, the motion will be denied.

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Plaintiff contends the Court erred in its previous rulings denying counsel, relying
upon Brathwaite v. Phelps, 734 F. App'x 114 (3d Cir. 2018), which held that counsel
should have been sought after the District Court determined Plaintiff needed expert
testimony to make his Eighth Amendment claims.

Id. at 120. Here, discovery has not

yet commenced, the Court has not entered a scheduling and discovery order, and there
has been no determination that an expert is necessary for Plaintiff's constitutional
claims.
Therefore, the Court will deny Plaintiff's fifth request for counsel without prejudice
to renew.

Should the need for counsel arise later, one can be sought at that time.

TJUDGE

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