Giles v. Clark et al

Filing 34

MEMORANDUM ORDER: The request for counsel (D.I. 30 ) is DENIED without prejudice to renew. The Motion for Emergency Injunctive Relief and Protection (D.I. 32 ) is DISMISSED without prejudice. Signed by Judge Richard G. Andrews on 10/6/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
WARDELL LEROY GILES,
Plaintiff,

v.

: Civ. No. 16-1038-RGA

CORPORAL CLARK, et al.,
Defendants.
MEMORANDUM ORDER

At Wilmington, this

0

day of October 2017, having considered Plaintiff's

request for counsel (D.I. 30) and motion for emergency injunctive relief and protection
(D.I. 32);
IT IS ORDERED that Plaintiff's: (1) request for counsel is denied without
prejudice to renew (D.I. 30); and (2) motion for emergency injunctive relief and
protection is dismissed without prejudice (D.I. 32), for the following reasons:
Introduction. Plaintiff Wardell Leroy Giles, an inmate at the James T. Vaughn

Correctional Center in Smyrna, Delaware, filed this lawsuit pursuant to 42 U.S.C.
§ 1983. (D.I. 1). He appears prose and was granted permission to proceed in forma
pauperis pursuant to 28 U.S.C. § 1915. (D.I. 10).
Request for Counsel. Plaintiff seeks counsel to assist him with discovery and to

better articulate his claims. (D.I. 30). A prose litigant proceeding in forrna 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.
,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.").

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.
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 to date and this case is in its early
stages. Therefore, the Court will deny Plaintiff's request for counsel without prejudice to
renew. Should the need for counsel arise later, one can be sought at that time.

2

I

Motion for Injunctive Relief. Plaintiff seeks injunctive relief. (0.1. 32). He

states that non-parties Sgt. Aspinall, Officer Pfleegor and others have retaliated against
him and he is being treated cruelly and inhumanely. Plaintiff explains that this occurred
when he was moved from the infirmary dorm to an isolation cell designed for inmates
with contagious and airborne diseases that is sometimes used for disciplinary action.
Plaintiff alleges that he was transferred as a result of litigation he has filed against the
foregoing non-parties' co-workers and friends.
A preliminary injunction is "an extraordinary remedy that should be granted only
if: (1) the plaintiff is likely to succeed on the merits; (2) denial will result in irreparable
harm to the plaintiff; (3) granting the injunction will not result in irreparable harm to the
defendant; and (4) granting the injunction is in the public interest." Nutrasweet Co. v.
Vit-MarEnterprises, Inc., 176 F.3d 151, 153 (3d Cir. 1999). "[F]ailure to establish any
element in [a plaintiff's] favor renders a preliminary injunction inappropriate." Id.
Furthermore, because of the intractable problems of prison administration, a request for
injunctive relief in the prison context must be viewed with considerable caution. Rush v.
Correctional Med. Services, Inc., 287 F. App'x 142, 144 (3d Cir. 2008) (citing Goff v.
Harper, 60 F.3d 518, 520 (8th Cir. 1995)).
Plaintiff seeks injunctive relief against individuals who are not parties to this
action and who are not mentioned as participating in the events described in Plaintiff's
Complaint. Should Plaintiff wish to seek relief against Aspinall, Pfleegor, and others, his
remedy is to commence a separate lawsuit against them. Accordingly, the Court will
dismiss without prejudice the motion for injunctive relief.

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LJNiTEDSATES DISTRICT JUDGE

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