Gillis v. Pierce
MEMORANDUM - Signed by Judge Sue L. Robinson on 1/18/17. (rwc)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
) Civ. Action No. 15-1156-SLR
WARDEN DAVID PIERCE,
The plaintiff Vurnis Gillis ("plaintiff'), an inmate at the James T. Vaughn
Correctional Center ("VCC"), Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C.
§ 1983. He proceeds pro se and was granted leave to proceed in forma pauperis.
Plaintiff requests counsel and argues that special circumstances exist to grant his
request because he has severe mental illness and his mental disorders impact his
ability to comprehend law and fact. (D.1. 14) The request for counsel was filed eleven
days after defendant filed a motion to dismiss for failure to prosecute. (See D.1. 13)
II. STANDARD OF LAW
Federal Rule of Civil Procedure 17(c)(2) provides that "[t]he court must appoint a
guardian ad litem - or issue another appropriate order - to protect a minor or
incompetent person who is unrepresented in an action." The United States Court of
Appeals for the Third Circuit has determined that the district court has a responsibility to
inquire sua sponte under Rule 17(c)(2), whether a pro se litigant is incompetent to
litigate his action and, therefore, is entitled to either appointment of a guardian ad litem
or other measures to protect his rights. See Powell v. Symons, 680 F.3d 301, 307 (3d
The court considers whether Rule 17(c) applies "[i]f a court [is] presented with
evidence from an appropriate court of record or a relevant public agency indicating that
the party had been adjudicated incompetent, or if the court receivers] verifiable evidence
from a mental health professional demonstrating that the party is being or has been
treated for mental illness of the type that would render him or her legally incompetent."
Powell, 680 F.3d at 307 (citing Ferrelli v. River Manor Health Care Ctr., 323 F.3d 196,
201 (2d Cir. 2003)). The court "need not inquire sua sponte into a pro se plaintiffs
mental competence based on a litigant's bizarre behavior alone, even if such behavior
may suggest mental incapacity." Id. at 303 (citations omitted). The decision whether to
appoint a next friend or guardian ad litem rests with the sound discretion of the district
court. Powell, 680 F.3d at 303.
In the instant action, plaintiff makes bald allegations of mental illness. Plaintiff
has not submitted any verifiable evidence of incompetence to this court. Thus, this
court has no duty to conduct a sua sponte determination of competency under Rule
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
1See Mallard v. United States Dist. Court for the S. Dist. of Iowa, 490 U.S. 296
(1989) (§ 1915(d) (now § 1915(e)(1» does not authorize a federal court to require an
unwilling attorney to represent an indigent civil litigant, the operative word in the statute
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
plaintiff's 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 plaintiff's claim; (2) the plaintiff's 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 plaintiff's ability to pursue such investigation; (5) the
plaintiff's 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 anyone factor determinative. Tabron, 6 F.3d at 157.
Assuming, solely for the purpose of deciding this motion, that plaintiff's claims
have merit in fact and law, several of the Tabron factors militate against granting his
request for counsel. The case is not so factually or legally complex that requesting an
attorney is warranted. In addition, to date, the filings in this case demonstrate plaintiffs
ability to articulate his claims and represent himself. Thus, in these circumstances, the
court will deny without prejudice to renew plaintiff's request for counsel.
For the above reasons, the court finds will deny plaintiffs request for counsel.
(0.1. 14) In addition, the court will set a deadline for plaintiff to respond to defendant's
January ~, 2017
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