Fullman v. TC Electric Co.

Filing 44

MEMORANDUM ORDER: The second request for counsel (D.I. 40 ) is DENIED without prejudice to renew. Signed by Judge Richard G. Andrews on 3/25/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
DARNELL H. FULLMAN , SR.,
Plaintiff,
: Civ. No. 17-1870-RGA

V.

TC ELECTRIC CO.,
Defendant.

MEMORANDUM ORDER
At Wilmington , this

1~ay

of March 2019 , having considered Plaintiff's second

request for counsel (0.1. 40) ;
IT IS ORDERED that Plaintiff's second request for counsel (0 .1. 40) is DENIED
without prejudice to renew, for the reasons that follow:
Plaintiff Darnell H. Fullman , Sr., appears prose and was granted permission to
proceed in forma pauperis pursuant to 28 U.S.C . § 1915.

(0.1. 4) . He asks the court

to seek representation on his behalf. (0.1. 40) . Plaintiff states that he attended
mediation without an attorney and the result was unjust.

He requests counsel because

he is unaware of the procedures that are requested of him and the procedures to come.
(Id.).

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

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. ").
1

1

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
wh ich 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 . As
previously noted , to date Plaintiff has ably represented himself. 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