Santiago v. Gray et al

Filing 70

MEMORANDUM. Signed by Judge Richard G. Andrews on 2/20/2020. (nms)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSE SANTIAGO,
Plaintiff,
: Civil Action No. 18-814-RGA

V.

LT. GRAY, et al. ,
Defendants.

MEMORANDUM
1.

Introduction . Plaintiff Jose Santiago was an inmate at Howard R. Young

Correctional Institution in Wilmington , Delaware , when he filed this action pursuant to 42
U.S.C. § 1983. (0 .1. 3) . He is now housed at Sussex Community Correctional Center
in Georgetown, Delaware . (0 .1. 69).

Plaintiff appears prose and has been granted

leave to proceed in forma pauperis. (0 .1. 6) . There are several pending requests for
counsel as well as discovery motions filed by the parties. (0 .1. 48 , 53 , 54 , 59 , 69) .
2.

Background . While housed at the HYRCI , Plaintiff submitted a

grievance complaining of black mold . (0 .1. 3 at 5) . He alleges that the next day,
Defendants threatened him with solitary confinement if he did not sign off on the
grievance. (Id.).

Plaintiff alleges Defendants denied him due process , prevented him

from redressing his grievance , and retaliated against him for submitting the grievance.
(Id.) . Plaintiff sought to amend the complaint on December 17, 2018 and March 6,

2019.

(See 0 .1. 27 , 35).

On May 28 , 2019 , the motions were denied without prejud ice

to renew because the proposed amendment was confusing and seemed to combine
issues in this case with another case Plaintiff is involved in , Nash v. Akinbayo , Civ. No.

18-677-MN.

(See D.I. 39 , 40) . Plaintiff was advised that he may not litigate the same

issues in two separate cases and , since then , he has not filed a renewed motion to
amend . Both parties seek discovery. In addition , Plaintiff has filed several requests
for counsel to assist him in this matter and , particularly, to aid in the discovery process.
3.

Discovery.

On May 15, 2019, the Court entered an order for discovery

to be completed by September 16, 2019.

(D .I. 38) . On June 6, 2019 , Defendants

served discovery requests upon Plaintiff and also filed a motion to depose Plaintiff.
(See D.I. 41 , 44).

The motion to depose Plaintiff was granted and the deposition was

scheduled for September 11 , 2019. (D.I. 45 , 46) .
4.

(D .I. 47).

Plaintiff served discovery requests on Defendants on June 24 , 2019 .
On the same day, he also filed a letter expressing concern that his deposition

was scheduled without providing him someone to assist him or advise him of his rights .
(D.I. 48) . Plaintiff also advised that he needs the documents he requested through
discovery prior to his deposition. (/d.). Plaintiff stated he needs to see "crucial
information" from documents to allow him to sufficiently and effectively answer
deposition questions. (/d.).
5.
requests.

On August 6, 2019 , Defendants filed responses to Plaintiffs discovery
(D .I. 52).

On August 15, 2019 , Plaintiff filed a motion to compel Defendants

to produce documents, videos, and internal operating materials to his "assigned
counsel."

(D.I. 54) . Plaintiff states that the discovery is crucial to his case and is

unavailable to him under 11 Del. C. § 4322(c) due to his incarcerated status.
The motion to compel does not refer to specific requests.

(Id.).

On August 28 , 2019 ,

Defendants filed a motion to compel Plaintiff to answer discovery served upon him on
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June 6, 2019 , to which Plaintiff had not responded . (0 .1. 59 , 60).

On August 29 , 2019 ,

Defendants vacated the notice of Plaintiff's scheduled deposition. (0.1. 61 ).

On

November 15, 2019 , the Court extended the discovery deadline to May 15, 2020 . (0 .1.
66).
6.

Motions to Compel.

"Parties 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 . . . . Information within this scope of discovery need not be
admissible in evidence to be discoverable." Fed . R. Civ. P. 26(b)(1 ).
7.

Plaintiff's Motions. Plaintiff's allegations concern his submission of a

grievance on April 18, 2019 , and alleged retaliatory conduct by Defendants as a result
of the grievance. He moves to compel Defendants to respond to all of his discovery
requests . (0 .1. 48 , 54) . Plaintiff contends that he must have all documents he
requested prior to any depositions.

(0 .1. 48 at 2; 0 .1. 64) . Defendants answered some

of the requests . (See 0 .1. 52 at 1-6 lnterrog. Resp . No. 1; at 6-10 lnterrog . Resp. Nos.
1, 2, 3, 4, 16, 17; at 21-28 Document Resp. Nos. 1, 3, 4 , 5, 18, 19). For others,
Defendants objected , but also answered the requests . (See 0.1. 52 at 1-6, lnterrog .
Resp . Nos.2, 3, 4, 5, 6, 7, 8, 9, 10, 14; at6-10 lnterrog . Resp . Nos. 5, 15, 18, 19; at2128 Document Resp . No. 6) . One discovery request was properly objected to based
solely on security concerns . (See 0 .1. 52 at 21-28 Document Resp. No. 2) . Some
discovery requests were improperly directed to non-parties.

(See 0 .1. 51 at 11-21).

And the remaining discovery requests sought information not related to the instant
action that, as discussed above, raises a discrete issue during a discrete time-frame ,
and/or sought non-discoverable information due to security concerns . (See 0.1. 52 at

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1-6, lnterrog . Resp . Nos. 11 , 12, 13; at6-10 lnterrog . Resp . Nos. 6, 7, 8, 9, 10, 11 , 12,
13, 14; at21-28 Document Resp. Nos. 7, 8, 9, 10, 11 , 12, 13, 14, 15, 16, 17, 20 , 21 , 22 ,
23 , 24 , 25 , 26) . The Court has reviewed Plaintiff's interrogatories and requests for
documents as well as Defendants' responses and finds that Defendants' objections are
well-taken and responses adequate. Therefore , Plaintiff's requests for documents and
motions to compel will be denied . (D .I. 48 , 54) .
8.

Defendant's Motion. On August 28 , 2019 , Defendants filed a motion to

compel answers to discovery served upon Plaintiff on June 6, 2019 . (D .I. 59).
date, Plaintiff has not responded to Defendant's discovery requests.

To

Defendants

served interrogatories and requests for production of documents. (D .I. 41 ). The
Federal Rules of Civil Procedure provide that responding party to whom interrogatories
are served , must serve its answers and any objections within 30 days after being served
with the interrogatories and for document requests , must respond in writing within 30
days after being served.

Fed . R. Civ. P. 33(b)(2) and 34(b)(2)(A) . The time has long

passed for Plaintiff to respond to the discovery requests.

Therefore, Defendants'

motion to compel will be granted. (D .I. 59) .
9.

Request for Counsel.

Plaintiff requests counsel to on the grounds that

he does not want to be deposed without anyone to assist or advise him on how to
protect his rights ; he is not capable of participating in depositions alone ; counsel is
necessary to view discovery not available to him due to his status as a prisoner; he is
incarcerated ; he does not have law library access ; witness testimony will be impossible
to obtain , and he proceeds prose and is unable to afford legal representation . (D.I. 48 ,
53 , 69) .
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10.

A prose litigant proceeding in forma pauperis has no constitutional or

statutory right to representation by counse l. 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.
11 .

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.
12.

Assuming , solely for the purpose of deciding this motion , that Plaintiff's

cla ims have merit in fact and law, several of the Tabron factors militate against granting

1See

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. 2 After reviewing the Complaint, the Court concludes that the
case is not so factually or legally complex that requesting an attorney is warranted .
The case concerns the submission of a grievance and alleged retaliation for submitting
the grievance . To date, Plaintiff has ably represented himself. Also , as discussed
above , Plaintiff has been provided all discovery due him. Finally, expert testimony is
not required in th is case. Therefore, the Court will deny Plaintiff's requests for counsel
without prejudice to renew . (0 .1. 48 , 53 , 69) .
13.

Deposition . Finally, should Defendants seek to depose Plaintiff, he may

not decline on the grounds that he does not have an attorney or because he did not
receive all the discovery he requested.

These issues have been addressed and ruled

upon. Plaintiff commenced this action and the Federal Rules of Civil Procedure
provide that Defendants may depose him. See Fed . R. Civ. P. 30 .

2

The Court gives Plaintiff the benefit of the doubt that his claim has merit while noting
that exhibits submitted relative to a motion for injunctive relief filed in this case indicate
Defendants met with Plaintiff regarding a grievance he had submitted complaining of
black mold in the shower area and along the ventilation systems ; Mclellan informed
Plaintiff that maintenance would look into the situation and , if there was a mold problem ,
it would be rectified as soon as possible ; and although disputed by Plaintiff, the affidavit
of McLennan states that neither he , nor Gray, threatened Plaintiff with solitary
confinement. (0 .1. 28 at 17; 0 .1. 32 at Ex. A) .
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14.

Conclusion . For the above reasons , the Court will:

(1) deny Plaintiffs

motions to compel (D.I. 48 , 54) ; (2) grant Defendants' motion to compel (D .I. 59) ; and
(3) deny without prejudice to renew Plaintiffs requests for counsel (0.1. 48 , 53 , 69) . A
separate order shall issue .

a/l,

DISTRICT JUDGE

2020
February
Wilmington , Delaware

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