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Duffy v. Kent County Levy Court

United States District Court, Third Circuit

June 25, 2013



SHERRY R. FALLON, Magistrate Judge.

At Wilmington this 25th day of June, 2013,

IT IS ORDERED that plaintiffs "Motion Regarding Lack of Equal Access" setting forth a request for appointment of counsel (D.I. 223), plaintiffs letter dated June 12, 2013 setting forth a FOIA request (D.I. 222), and plaintiffs "Motion As To Ad Hoc Hired Gun, Non-Witnesses" setting forth a request for appointment of an expert witness (D.I. 224) are DENIED for the following reasons:

1. Appointment of Counsel: The court previously addressed plaintiffs request for counsel. In response to three motions filed by plaintiff requesting the appointment of counsel and/or an auxiliary aid (D.I. 109, 169, 178), the court referred the representation of plaintiff to a member of the Federal Civil Panel (D.I. 195). As evidenced by the first three pages of the instant request for appointment of counsel (D.I. 223), the attorney-client relationship became irretrievably broken. As a result, the court revoked the order referring the case to the Federal Civil Panel on May 9, 2013. (D.I. 214).

2. A prose litigant proceeding in form a 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.

3. After passing this threshold inquiry, the court should consider a number of factors when assessing a request for counsel, including:

(1) the plaintiff's ability to present his or her own case; (2) the difficulty of the particular legal issues; (3) the degree to which factual investigation will be necessary and the ability of the plaintiff to pursue investigation; (4) the plaintiff's capacity to retain counsel on his own behalf; (5) the extent to which a case is likely to turn on credibility determinations; and (6) whether the case will require testimony from expert witnesses.

Tabron, 6 F.3d at 155-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).

4. Plaintiff requests counsel on the grounds that he cannot communicate effectively with the court, and neither the Clerk's Office nor the court has provided him with legal advice. He seeks counsel to assist with discovery. Plaintiff's filings indicate that he possesses the ability to adequately pursue his claims. Upon consideration of the record, the court is not persuaded that representation by an attorney is warranted.

5. The United States Court of Appeals for the Third Circuit has determined that the district court has a responsibility, under Rule 17(c)(2), [1] to inquire sua sponte into whether a pro se litigant is incompetent to litigate his action and is, therefore, entitled to either appointment of a guardian ad litem or other measures to protect his rights. See Powell v. Symons, 680 F.3d 301, 303, 307 (3d Cir. 2012).

6. The court considers whether Rule 17(c) applies "[i]f a court [is] presented with evidence from an appropriate court of record or a relevant public agency indicating that the party had been adjudicated incompetent, or if the court receive[s] verifiable evidence from a mental health professional demonstrating that the party is being or has been treated for mental illness of the type that would render him or her legally incompetent." Id. The court "need not inquire sua sponte into a prose plaintiffs mental competence based on a litigant's bizarre behavior alone, even if such behavior may suggest mental incapacity." Id. at 303 (citations omitted). The decision whether to appoint a next friend or guardian ad litem rests with the sound discretion of the district court. See id.

7. Although plaintiff claims that he is disabled under the Americans with Disabilities Act, there is no medical opinion in the record that he is incompetent. Nor is there evidence that plaintiff has been adjudicated incompetent by any court. The court finds that, under the circumstances, the evidence does not suffice to conclude that plaintiff is incompetent. Inasmuch as there is no substantial question regarding the competence of plaintiff, it is not necessary to conduct a Rule 17(c) competency hearing. For the above reasons, the court finds plaintiff is currently competent and declines to appoint a guardian or counsel to represent his interests pursuant to Rule 17(c).

8. Plaintiff is placed on notice that future requests to appoint counsel will be docketed, but not considered.

9. FOIA Request: Plaintiffs FOIA request was previously addressed in the court's June 10, 2013 Memorandum Order, which stated that neither the Privacy Act nor the Freedom of Information Act, codified at 5 U.S.C. §§ 551 and 552, applies to the Judicial Branch. See 5 U.S.C. § 551(1)(B) (excluding the courts of the United States from the definition of"agency" used in§ 551 et seq. of Title 5); see also United States v. Frank, 864 F.2d 992, 1013 (3d Cir. 1988); Warth v. Dep't of Justice, 595 F.2d 521, 522-23 (9th Cir. 1979); Cook v. ...

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