Shabazz v. Pepper Hamilton, LLP et al

Filing 18

MEMORANDUM ORDER: Plaintiff's request for counsel (D.I. 17 ) is DENIED without prejudice. Plaintiff shall file an amended complaint on or before February 28, 2022. The failure to do so will result in the closing of the case. There will be no further extensions. Signed by Judge Richard G. Andrews on 1/11/2022. (nms)

Case 1:20-cv-01778-RGA Document 18 Filed 01/11/22 Page 1 of 4 PageID #: 110

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
ABDUL-HAQQ SHABAZZ,
Plaintiff,
: Civ. No. 20-1778-RGA

V.

PEPPER HAMILTON , LLP , et al. ,
Defendants.

MEMORANDUM ORDER
At Wilm ington , this 11 th day of January, 2022 ;
IT IS ORDERED that (1) Plaintiffs request for counsel (D .I. 17) is DENIED
without prejudice ; (2) Plaintiff shall file an amended compla int on or before February 28 ,
2022 ; the failure to do so will result in the closing of the case ; and (3) there will be no
further extensions.
Plaintiff, an inmate at Sussex Correctional Institution in Georgetown , Delaware ,
seeks counsel on the grounds that his complaint must be liberally construed , I was
involved in a prior lawsuit filed by Plaintiff, Plaintiff is involved in a different case that is
schedule to start trial on January 18, 2022 ,1 and Plaintiff has no one to assist him with
his case . (D .I. 17). I previously den ied a request for counsel on November 5, 2021 .
(See D.I. 16).

1

The trial date in that case has been continued. See Shabazz v. Delaware Dep 't of
Carree., Civ. A. No. 16-570-RGA at D.I. 225 (D . Del.) .

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A prose 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.

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.
Plaintiff is a blind elderly prisoner. He has no pending complaint, as I dismissed
the complaint he filed for three reasons , including that some of the claims were
frivolous , some of the claims were against defendants who were immune from suit, and
some of the claims did not state a claim.

(0.1. 10). I gave him leave to amend . There

has been no amended complaint, but Plaintiff has requested more time (0.1. 13, 0 .1.

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15), which I granted him . I know from other litigation he has that he has been ill.

But

the second extension of time has run out, and there has been no amended complaint.
Instead , at the deadline, he filed a document styled , "In response to : Memorandum
Order." (D .I. 17).
In that pleading , Plaintiff again requests appointment of counsel.

The threshold

issue for appointment of counsel is that there be a claim that has arguable merit in fact
and law. Right now, Plaintiff does not meet that requirement.

There are no pending

claims, as I have dismissed them all.
I also note from the record as a whole that it may be the case that Plaintiffs main
desire is to file a claim for legal malpractice against the lawyers I appointed to represent
him in another case. (See in particular 0 .1. 11 ). If this is the claim , it is doubtful that I
would even have original jurisdiction over the claim , as it is a state law claim and would
require diversity of citizenship.

Plaintiff is certainly a citizen of Delaware.

There are

no allegations about the citizenship of the law firm and its lawyers , at least some of
whom are members of the Delaware Bar. But, even assuming that a malpractice claim
could be stated , it is extremely unlikely I would appoint Plaintiff a lawyer for a tort suit
such as a legal (or medical) malpractice claim . Most individuals who bring represented
medical or legal malpractice claims do so on a contingency basis. It is one thing to
appoint a lawyer to represent Plaintiff if he has a section 1983 or other federal claim.
But if Plaintiff cannot obtain a lawyer who is willing to represent him on a contingency
basis for a state law claim of the kind that is usually handled in state court on a

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contingency basis, there is little to no reason why I should seek to use the limited
resources available through the CJA panel to do that.
I also note Plaintiff's requests for various orders directing the prison to change
the rules for Plaintiff, including assigning him an assistant and to allow him to select an
individual outside the prison to handle his typing and to act on his behalf.

(D .I. 17 at 4).

In essence, Plaintiff asks the Court to involve itself in the administration of a state
prison . Prison officials require broad discretionary authority as the "operation of a
correctional institution is at best an extraordinarily difficult undertaking ."

Wolff v.

McDonnell, 418 U.S. 539 , 566 (1974) . The federal courts are not overseers of the dayto-day management of prisons, and I will not interfere with the Department of Correction
by ordering it to provide Plaintiff with the special treatment he seeks.
Accordingly , the Court will deny without prejudice Plaintiff's request for counsel
and will give him one final extension to file an amended complaint.

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