Stevenson v. Pierce et al

Filing 48

MEMORANDUM ORDER: The requests for counsel (D.I. 23 , 24 ) are DENIED without prejudice to renew. The motion to compel (D.I. 39 ) is DENIED. Signed by Judge Richard G. Andrews on 12/14/2017. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ANTHONY STEVENSON,
Plaintiff,
: Civ. No. 17-020-RGA

v.

JEFFREY CARROTHERS, et al.,
Defendants.
MEMORANDUM ORDER

At Wilmington, this

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day of December, 2017, having considered Plaintiff's

requests for counsel and motion to compel (D.I. 23, 24, 39);
IT IS ORDERED that the: (1) requests for counsel (D.I. 23, 24) are DENIED
without prejudice to renew; and (2) the motion to compel (D.I. 39) is DENIED, for the
reasons that follow:
1.

Introduction. Plaintiff Anthony Stevenson, an inmate at the James T.

Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to 42
U.S.C. § 1983 and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. He
appears prose and has been granted leave to proceed in forma pauperis. (D.I. 5).
2.

Requests for Counsel. Plaintiff seeks counsel on the grounds that he is

unable to afford counsel, his imprisonment greatly limits his ability to litigate the matter,
he has limited law library access and limited knowledge of the law, a trial will likely
involve conflicting testimony and counsel will better enable Plaintiff to present evidence
and cross-examine witnesses, he has made repeated efforts to obtain counsel, he has a
limited formal education, and counsel will aid in the discovery process. (D.I. 23, 24). A

pro se litigant proceeding in forma pauperis has no constitutional or statutory right to

representation by counsel. 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. 1 Tabron, 6 F.3d at 155.
3.

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.
4.

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

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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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, to date, Plaintiff has ably represented himself in this case. Further, should
Plaintiff have difficulties in obtaining discovery, he has the option of seeking relief from
the Court. In light of the foregoing, the Court will deny without prejudice to renew
Plaintiff's requests for counsel. Should the need for counsel arise later, one can be
sought at that time. Accordingly, Plaintiff's requests for counsel (D.I. 23, 24) are denied
without prejudice to renew.
5.

Motion to Compel. Plaintiff served a second request for production of

documents upon Defendants on October 4, 2017. (D.I. 28). Plaintiff moves to compel a
discovery response.
6.

Pursuant to Fed. R. Civ. P. 26, "[p]arties may obtain discovery regarding

any nonprivileged matter that is relevant to any party's claim or defense and
proportional to the needs of the case, considering the importance of the issues at stake
in the action, the amount in controversy, the parties' relative access to relevant
information, the parties' resources, the importance of the discovery in resolving the
issues, and whether the burden or expense of the proposed discovery outweighs its
likely benefit. Information within this scope of discovery need not be admissible in
evidence to be discoverable." Fed. R. Civ. P. 26(b)(1 ).
7.

The object of Plaintiff's motion is Request No. 9 which seeks a copy of

Department of Correction policies and procedures Number 1135. Plaintiff seeks to
compel Defendants to provide the policy and "any other policy that governs inmate

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workers at the Delaware Correctional Center." (D.I. 39). His motion quotes the
language of the policy.
8.

Defendants respond that the DOC does not have a policy or procedure

numbered 1135. (D.1. 42). However, Defendants provided Plaintiff BOP Policy 2.2,
which contains language similar to that identified by Plaintiff in his motion to compel.
The Court finds that Defendants have adequately responded to Request No. 9.
Therefore, the motion to compel (D.I. 39) is denied.

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