Cephas v. Metzger et al

Filing 154

MEMORANDUM regarding request for counsel (D.I. 72 ) and motion for leave to extend discovery and depose Defendant Scarborough (D.I. 132 ). Signed by Judge Richard G. Andrews on 8/4/2021. (nms)

Case 1:18-cv-00851-RGA Document 154 Filed 08/04/21 Page 1 of 4 PageID #: 3988

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
~ERNON ERNEST DORIAN CEPHAS,
Plaintiff,

v.

Civil Action No. 18-851-RGA

DEPUTY WARDEN SCARBOROUGH,
et al.,
Defendants.

MEMORANDUM
1.

Introduction. Plaintiff Vernon Ernest Dorian Cephas, an inmate at the

James T. Vaughn Correctional Center in Smyrna, Delaware, filed this action pursuant to
42 U.S.C. § 1983. (D.I. 3). He appears prose and has been granted leave to proceed

in forma pauperis. (D.I. 7). Before the Court are Plaintiffs request for counsel and
mption for leave to extend discovery and to depose Defendant Scarborough. (D.I. 72,
132). The motions are opposed by Defendant Warden Scarborough. 1
2.

Request for Counsel. Plaintiff requests counsel on the ground that he

needs help in locating and serving defendants, his claims are meritorious, he needs
help reviewing discovery he has received, he will need help in filing an opposition brief
to 'defendants' motions for summary judgment, the issues are complex, and expert
testimony will be required. (D.I. 72). In the alternative, Plaintiff asks the Court to

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On April 21, 2021, Connections Community Support Programs, Inc. filed a Suggestion
of Bankruptcy. (D.I. 136 ). As of April 19, 2021, all proceedings against Connections
Community Support Programs, Inc. and its employee(s) are stayed pursuant to Section
362(a) of the Bankruptcy Code, 11 U.S.C. § 362(a).

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Case 1:18-cv-00851-RGA Document 154 Filed 08/04/21 Page 2 of 4 PageID #: 3989

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provide him with a private investigator to locate and serve medical defendants Tyler
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~ohanan and Dr. Adrian Harewood. (Id.).
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3.

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. Tabron, 6 F.3d at 155.
4.

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
m1erits of the plaintiff's claim; (2) the plaintiff's ability to present his or her case
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cqmsidering his or her education, literacy, experience, and the restraints placed upon
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hihi or her by incarceration; (3) the complexity of the legal issues; (4) the degree to
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wt,ich factual investigation is required and the plaintiff's ability to pursue such
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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.
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See Montgomery v. Pinchak, 294 F.3d 492, 498-99 (3d Cir. 2002); Tabron, 6 F.3d at
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155-56. The list is not exhaustive, nor is any one factor determinative. Tabron, 6 F.3d
at:157.
5.

I have reviewed the docket in this case as well as Plaintiff's filings.

Throughout, Plaintiff has ably represented himself in this matter. He has propounded
di~covery and responded to discovery requests and has filed responsive briefs. In
addition, to the extent he seeks a private investigator to locate and to serve two

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Case 1:18-cv-00851-RGA Document 154 Filed 08/04/21 Page 3 of 4 PageID #: 3990

r,:iedical, the issue is moot at the present time, the matter having been stayed against
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Gonnections and its employees. Upon consideration of the entire record, I have
cbncluded that counsel is not warranted. Therefore, the Court will deny Plaintiffs
·r~quest for counsel without prejudice.
6.

Discovery and Deposition. Plaintiff moves the Court to extend the

discovery deadline so that he may depose Scarborough. (D.I. 132). Plaintiff states that
he indigent and cannot afford to pay a stenographer. Plaintiff asked defense counsel if
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he could video record the deposition via a Zoom conference call. Plaintiff also asks the
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C'purt to extend the February 1, 2021 discovery deadline to March 21, 2021. (D.I. 132,
133). Plaintiff filed the motion on February 16, 2021, two weeks after the discovery
deadline expired.
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7.

The original discovery deadline was December 28, 2020. (See D.I. 61).

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On December 7, 2020, Plaintiff requested an extension of the discovery, and the Court
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extended the discovery deadline to February 1, 2021. (D.I. 106, 107). The Court has
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broad discretion to rule upon inmate requests to conduct oral depositions pursuant to
R~le 30 of the Federal Rules of Civil Procedure. See McKeithan v. Jones, 212 F. App'x
12,9, 131 (3d Cir. 2007). Despite his in forma pauperis status, Plaintiff "would be
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re~ponsible for his discovery expenses, including the costs associated with the taking of
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a deposition." Sears v. Mooney, 2018 WL 5841971, at *4 (M.D. Pa. Nov. 8, 2018).
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Here, Plaintiff concedes that he is indigent and has no money to pay for Scarborough's
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deposition. In light of Plaintiffs admission, the Court will deny his motion to extend the
discovery deadline to depose Scarborough.

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Case 1:18-cv-00851-RGA Document 154 Filed 08/04/21 Page 4 of 4 PageID #: 3991

8.

Conclusion. Based upon the above discussion, the Court will: (1) deny

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without prejudice Plaintiffs request for counsel (D.I. 72); and (2) deny Plaintiffs motion
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for leave to extend discovery and to depose Defendant Scarborough (D.I. 132).
A separate order shall issue.

lf,

2021
August
Wilmington, Delaware

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