Shotwell v. State of Delaware
MEMORANDUM ORDER: Plaintiff's request for counsel is DENIED without prejudice to renew (D.I. 31 ). Plaintiff's motion for a ruling on Defendant's discovery request is DENIED (D.I. 46 ). Defendant's motion to compel is GRANTED (D.I. 50 ). Plaintiff shall file responses to discovery on or before May 11, 2018. Plaintiff's motion for access to legal funds or waivers is DENIED (D.I. 52 ). Plaintiff's motion to enforce subpoenas is DISMISSED as premature (D.I. 61 ). Signed by Judge Richard G. Andrews on 4/16/2018. (nms)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
MARK J. SHOTWELL,
: Civ. Action No. 16-441-RGA
At Wilmington this
day of April, 2018, having considered the pending
motions (D.I. 31, 46, 50, 52, 61 );
Introduction. Plaintiff Mark J. Shotwell filed this action alleging violations
of his constitutional rights under 42 U.S.C. § 1983.
He proceeds prose and has been
granted leave to proceed in forma pauperis.
Request for Counsel. Plaintiff requests counsel on the grounds that he
has no formal legal training or education, the issues are complex, expert testimony will
be necessary, the elements of the case are technical, countersuit penalties constitute
an overriding personal interest for Plaintiff, counsel will make a difference in the case,
and privacy and personal information of several hundred individuals will be exposed
without the proper knowledge of how to file supportive information.
(D.I. 31 ).
A pro se litigant proceeding in forma pauperis has no constitutional or
See Brightwell v. Lehman, 637 F.3d 187,
statutory right to representation by counsel.
192 (3d Cir. 2011); Tabron v. Grace, 6 F.3d 147, 153 (3d Cir. 1993).
representation by counsel may be appropriate under certain circumstances, after a
finding that a plaintiff's claim has arguable merit in fact and law. 1 Tabron, 6 F.3d at
After passing thrs 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 any one factor determinative.
Tabron, 6 F.3d
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. After reviewing Plaintiff's complaint, the Court concludes that it
cannot say at this time that the case is so factually or legally complex that requesting a
volunteer attorney is warranted.
himself in this case.
In addition, to date, Plaintiff has very ably represented
In light of the foregoing, the Court will deny without prejudice to
See 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 being
renew Plaintiff's request for counsel.
(D.I. 31 ).
Should the need for counsel arise
later, one can be sought at that time.
On December 14, 2017, Defendants served
interrogatories and a request for production of documents upon Plaintiff. (D.I. 33, 34).
A party responding to interrogatories must serve his answer and any objections within
30 days after being served.
Fed. R. Civ. P. 33(b)(2). With interrogatories, any ground
not stated in a timely objection is waived unless the court, for good cause, excuses the
Fed. R. Civ. P. 33(b)(4). Similarly, the party to whom a request for production
is documents is directed must respond in writing within 30 days after being served.
Fed. R. Civ. P. 34.
On March 5, 2018, long after the deadline to respond to the discovery,
Plaintiff filed a motion stating he has financial constraints that limit his ability produce
the discovery requested.
He asks the Court to allow him to turn over a
copied hard drive to satisfy the discovery requests with the condition that those in
possession of his property "agree to be held fully responsible for securing any and all
information" contained therein, and "agree to conduct any and all activities respectfully
and mindful to sensitive material that may violate Plaintiff's and/or other's personal
privacy." (Id. at p.3).
In the alternative, Plaintiff asks the Court to "waive all costs ...
for the private forensics examinations necessary for the retrieval, conversion, and
cataloging of the data in order to satisfy Defendant's [d]iscovery request." (Id.) A few
days later, Defendant filed a motion to compel Plaintiff's responses to his discovery
In turn, Plaintiff filed a motion requesting access to legal funds or
waivers for necessary expenses.
The Court will grant Defendant's motion to compel and will deny Plaintiff's
motion for a ruling on discovery. (D.I. 46, 50).
the discovery requests.
Plaintiff filed this action and the Federal Rules of Civil
Procedure guide the discovery process.
of his ability.
Plaintiff will be required to respond to
Plaintiff shall answer the requests to the best
He may not, however, provide a wholesale dump of documents that
require Defendant to shift through them to determine whether they are responsive
Nor may he make providing discovery contingent upon conditions he
imposes upon Defendant.
Legal Funds or Waivers for Necessary Expenses.
Plaintiff refers to
this Court's fund for pro-bono attorneys and, because he proceeds pro se and has in
forma pauperis status, moves for access to legal funds so that he may conduct the
necessary duties for discovery. (D.I. 52).
He indicates discovery costs will include
subpoenaing witnesses to testify at depositions, hiring a deposition officer and
stenographic reporter, fees for expert deposition testimony from a cellular phone
forensic specialist, and printing costs. The motion will be denied.
10. The court has no authority to finance or pay for a party's discovery
expenses. Badman v. Stark, 139 F.R.D. 601, 605 (M.D. Pa. 1991) (§ 1915 does not
require the government to advance funds for deposition expenses); Doe v. United
States, 112 F.R.D. 183, 184-85 (S.D.N.Y. 1986) (in forma pauperis statute does not
require government to advance funds for deposition expenses); Toliver v. Community
Action Comm'n to Help the Econ., 613 F. Supp. 1070, 1072 (S.D.N.Y. 1985) (no clear
statutory authority for the repayment of discovery costs for pro se in forma pauperis
plaintiff); Sturdevant v. Deer, 69 F.R.D. 17, 19 (E.D. Wis. 1975) (28 U.S.C. § 1915 "does
not extend to the cost of taking and transcribing a deposition."); Ebenhart v. Power, 309
F. Supp. 660, 661 (S.D.N.Y. 1969) ("Grave doubts exist as to whether Section 1915
authorizes this court to order the appropriation of Government funds in civil suits to aid
private litigants in conducting pre-trial discovery.").
In addition, the Court lacks authority to pay for an indigent plaintiff's expert
See, e.g., Boring v. Kozakiewicz, 833 F.2d 468, 474 (3d Cir. 1987)
("Congress has authorized the courts to waive prepayment of such items as filing fees
and transcripts if a party qualifies to proceed in forma pauperis.
28 U.S.C. § 1915.
However, we have been directed to no statutory authority nor to any appropriation to
which the courts may look for payment of expert witness fees in civil suits for damages.
Provisions have been made for expert witness fees in criminal cases, 18 U.S.C.
§ 3006A(e)(1 ), but not in civil damage suits.").
Motion to Enforce Subpoenas.
On March 26, 2018, Plaintiff filed a
motion to enforce subpoenas and the production of information sought by them.
The motion is premature having been filed a little over a week before the
production was due on April 4, 2018. Therefore, the motion will be dismissed as
THEREFORE, IT IS ORDERED that:
Plaintiff's request for counsel is DENIED without prejudice to renew.
Plaintiff's motion for a ruling on Defendant's discovery request is DENIED.
Defendant's motion to compel is GRANTED. (D.I. 50).
Plaintiff shall file
responses to discovery on or before May 11, 2018.
Plaintiff's motion for access to legal funds or waivers is DENIED. (D.I.
Plaintiff's motion to enforce subpoenas is DISMISSED as premature.
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