Small v. Frederick et al

Filing 25

MEMORANDUM ORDER: The requests for counsel (D.I. 14 , 20 ) are DENIED. The motion for voluntary dismissal (D.I. 20 ) is GRANTED (***Civil Case Terminated). Signed by Judge Richard G. Andrews on 10/6/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARREN SMALL,
Plaintiff,

v.

: Civ. No. 16-870-RGA

SGT. FREDERICK, et al.,
Defendants.
MEMORANDUM ORDER

At Wilmington, this

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day of October 2017, having considered Plaintiff's

requests for counsel (D.I. 14, 20) and motion for voluntary dismissal (D.I. 20);
IT IS THEREFORE ORDERED that Plaintiff's: (1) requests for counsel are
denied (D.I. 14, 20); (2) motion for voluntary dismissal is granted (D.I. 20); and (3) the
Clerk of Court is directed to close the case, for the following reasons:
Plaintiff Warren Small, an inmate at the Plummer Community Corrections Center
in Wilmington, Delaware, filed this lawsuit pursuant to 42 U.S.C. § 1983. (D.I. 2). He
appears pro se and was granted permission to proceed in forma pauperis pursuant to
28 U.S.C. § 1915. (D.I. 5).
Plaintiff seeks counsel on the grounds that he does not have the ability to present
his own case, he is unskilled in the law and the issues are complex, the case may turn
on credibility determination, expert witnesses will be necessary, he cannot attain and
afford counsel on his own behalf, and appointment of counsel would serve "the best
interest of justice." (D.I. 14, 20). Plaintiff states that "if the court cannot appoint me

counsel my case should be voluntarily dimiss[ed]." (D.I. 20at1J 7). Defendants do not
oppose~

dismissal of the case. (D.I. 23).

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
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 any one factor determinative. Tabron, 6 F.3d
at 157.

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
"request.").

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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 the
case is not so factually or legally complex that requesting an attorney is warranted. In
addition, Plaintiff has ably represented himself. Therefore, the Court will deny Plaintiff's
request for counsel.
Because Plaintiff indicates that he does not wish to proceed if his requests for
counsel are not granted, the court construes his request for dismissal of the case as a
motion for voluntary dismissal pursuant to Fed. R. Civ. P. 41. The Court will grant the
motion to voluntarily dismiss.

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