United States District Court, D. Delaware
plaintiff Vurnis Gillis ("plaintiff'), an inmate at
the James T. Vaughn Correctional Center ("VCC"),
Smyrna, Delaware filed this lawsuit pursuant to 42 U.S.C.
§ 1983. He proceeds pro se and was granted leave to
proceed in forma pauperis. Plaintiff requests counsel and
argues that special circumstances exist to grant his request
because he has severe mental illness and his mental disorders
impact his ability to comprehend law and fact. (D.I. 14) The
request for counsel was filed eleven days after defendant
filed a motion to dismiss for failure to prosecute.
(See D.I. 13) II. STANDARD OF LAW Federal Rule of
Civil Procedure 17(c)(2) provides that "[t]he court must
appoint a guardian ad litem - or issue another appropriate
order - to protect a minor or incompetent person who is
unrepresented in an action." The United States Court of
Appeals for the Third Circuit has determined that the
district court has a responsibility to inquire sua sponte
under Rule 17(c)(2), whether a pro se litigant is incompetent
to litigate his action and, therefore, is entitled to either
appointment of a guardian ad litem or other measures to
protect his rights. See Powell v. Symons, 680 F.3d
301, 307 (3d Cir. 2012).
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." Powell, 680 F.3d at 307
(citing Ferrelli v. River Manor Health Care Ctr.,
323 F.3d 196, 201 (2d Cir. 2003)). The court "need not
inquire sua sponte into a pro se 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. Powell, 680
F.3d at 303.
instant action, plaintiff makes bald allegations of mental
illness. Plaintiff has not submitted any verifiable evidence
of incompetence to this court. Thus, this court has no duty
to conduct a sua sponte determination of competency under
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.
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.
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 his
request for counsel. The case is not so factually or legally
complex that requesting an attorney is warranted. In
addition, to date, the filings in this case demonstrate
plaintiffs ability to articulate his claims and represent
himself. Thus, in these circumstances, the court will deny
without prejudice to renew plaintiff's request for
above reasons, the court finds will deny plaintiffs request
for counsel. (D.I. 14) In addition, the court will set a
deadline for plaintiff to respond to defendant's
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 ...