Morris v. James T. Vaughn Correctional Center

Filing 27

MEMORANDUM ORDER: The request for counsel (D.I. 22 ) is DENIED without prejudice to renew. The motion for leave to amend (D.I. 25 ) is DENIED without prejudice (see Order for further details). Signed by Judge Richard G. Andrews on 11/20/2019. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
TYRONE J. MORRIS ,
Plaintiff,
: Civ. No. 18-252-RGA

V.

CARLA COOPER,
Defendant.

MEMORANDUM ORDER
At Wilmington, this

8o day of November 2019 , having considered Plaintiff's

request for counsel (0.1. 22) and motion to amend complaint (0.1. 25) ;
IT IS ORDERED that:

(1) the request for counsel (D .I. 22) is DENIED without

prejudice to renew; and (2) motion for leave to amend (0 .1. 25) is DENIED without
prejudice , for the reasons that follow:
1.

Introduction . Plaintiff Tyrone J. Morris, an inmate at the James T.

Vaughn Correctional Center in Smyrna , Delaware , filed this lawsuit pursuant to 42
U.S.C . § 1983. (0.1. 1). He appears prose and was granted permission to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915. (0 .1. 7) .
2.

Request for Counsel.

Plaintiff indicates that his request for counsel was

prepared by another inmate who is no longer available to help him . Plaintiff states that
he does not understand legal terms "at all. " A prose litigant proceeding in forma

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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.
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 (against a nurse for failure to provide medications) is not so factually or legally
complex that requesting an attorney is warranted . In addition , the case is in its early
stages and a scheduling and discovery order has not yet been ordered . Therefore , the
Court will deny Plaintiff's request for counsel without prejudice to renew.
5.

Motion to Amend.

Plaintiff moves to amend to add an "overlooked"

grievance. (0 .1. 25) . Plaintiff provides the grievance appeal form and a letter
upholding the appeal.

(0 .1. 25-1) . He did not provide the Court with a copy of his

proposed amended pleading .
6.

Local Rule 15.1 provides that a party who moves to amend a pleading

shall attach to the motion : (1) the proposed pleading as amended , complete with a
handwritten or electronic signature; and (2) a form of the amended pleading which
indicates in what respect it differs from the pleading which it amends, by bracketing or
striking through materials to be deleted and underlining materials to be added . Plaintiff
did not comply with the Court's Local Rule . Accordingly, the Court will deny the motion
without prejudice to renew. Should Plaintiff seek to file an amended complaint, it shall
contain all parties and all claims in one pleading .

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