United States District Court, D. Delaware
filed two motions in his habeas proceeding. The first motion
seeks leave to proceed in forma pauperis; representation by
counsel; and injunctive relief in the form of returning his
legal files and legal supplies. (D.I. 3) The second motion is
titled "emergency petition for injunctive relief due to
cruel and inhumane treatment", but merely reasserts his
request that his legal documents and supplies be returned to
him. (D.I. 4) Petitioner's "emergency petition"
also asks the court to "implement" email contact
with him and have the warden meet with him personally. (D.I.
4 at 1)
Standards of Review.
to 28 U.S.C. § 1915(a)(1), leave to proceed in forma
pauperis may be granted to a "person who submits an
affidavit that includes a statement of all assets such
prisoner possesses that the person is unable to pay such fees
or give security therefor." Pursuant to §
1915(a)(2), in addition to filing the aforementioned
affidavit, a prisoner seeking in forma pauperis status
"shall submit a certified copy of the trust fund account
statement (or institutional equivalent) for the prisoner for
the 6-month period immediately preceding the filing of the
complaint , obtained from the appropriate official of each
prison at which the prisoner is or was confined." 28
U.S.C. § 1915(a)(2).
turn, it is well-settled that a petitioner does not have an
automatic constitutional or statutory right to representation
in a federal habeas proceeding. See Coleman v.
Thompson, 501 U.S. 722, 752 (1991); United States v.
Roberson, 194 F.3d 408, 415 n.5 (3d Cir. 1999). A court
may, however, seek representation by counsel for a petitioner
who demonstrates "special circumstances indicating the
likelihood of substantial prejudice to [petitioner] resulting
... from [petitioner's] probable inability without such
assistance to present the facts and legal issues to the court
in a complex but arguably meritorious case." See
Tabron v. Grace, 6 F.3d 147, 154 (3d Cir. 1993)(citing
Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir.
1984); 18 U.S.C. § 3006A (a)(2)(B)(representation by
counsel may be provided when a court determines that the
"interests of justice so require").
Finally, an injunction or temporary restraining order is an
extraordinary remedy that is only available when the movant
establishes the following four elements: (1) he is likely to
succeed on the merits; (2) denial will result in his
irreparable injury; (3) granting the injunction will not
irreparably harm the nonmoving party; and (4) granting the
injunction is in the public interest. Maldonado v.
Houston, 157 F.3d 179, 184 (3d Cir. 1997);
Nutrasweet Co. v. Vit-Mar Enters., inc., 176 F.3d
151, 153 (3d Cir. 1999)(a movant's failure to establish
any one of these four factors renders injunctive relief
improper). Given the intractable problems of prison
administration, a request for injunctive relief in the prison
context must be viewed with considerable caution. Abraham
v. Danberg, 322 F.App'x 169, 170 (3d Cir. 2009).
motion for leave to proceed in forma pauperis is denied. To
begin, petitioner has failed to provide the court with a
trust fund statement from the institution in which he is
incarcerated. More importantly, however, the court takes
judicial notice of two Delaware court cases demonstrating
that petitioner is not indigent. On June 9, 2015, the
Delaware Supreme Court took note of petitioner's 2013
bankruptcy petition reflecting that he had close to $2
million in assets and described how petitioner was alleged to
have falsely claimed to be a pauper. See Kostyshyn v.
State, 2015 WL 36472723, at *1 (Del. June 9, 2015). On
April 2013, the Delaware Supreme Court denied
petitioner's motion to proceed in forma pauperis based
upon factual findings of the Superior Court regarding his
assets, which include unclaimed monies held by the Superior
Court totaling almost $70, 000. See Kostyshyn v.
State, 2013 WL 1857541 (Del. Apr. 30, 2013). Given these
circumstances, petitioner's motion for leave to proceed
in forma pauperis does not demonstrate he is unable to pay
the required filing fee.
Petitioner's request for representation by counsel is
dismissed without prejudice to renew. Petitioner's sole
statement that "I move for appointment of counsel"
does not persuade the court that the interests of justice
require representation of counsel at this time. Additionally,
petitioner's other filings in this case demonstrate his
ability to sufficiently articulate his arguments, and it does
not appear that expert testimony will be necessary or that
the ultimate resolution of the petition will depend upon
credibility determinations. Nevertheless, the court is
willing to revisit this issue either sua sponte or upon
proper motion should it subsequently appear that the
complexity of the factual issues or the need for additional
legal briefing require the representation by counsel at a
later date. See Tabron, 6 F.3d at 156 (recognizing
that, under § 1915, the court may sua sponte
seek representation for a litigant at "any point in the
Finally, petitioner's request for injunctive relief in
the form of returning his legal files and legal supplies,
providing email service, and arranging a meeting with the
warden, is denied. (D.I. 3 at 5; D.I. 4 at 1) Petitioner has
not shown that he suffers an irreparable harm, especially
considering that he was capable of drafting and filing the
habeas application presently pending before the court without
the aforementioned items. Petitioner has also failed to
demonstrate a likelihood of success on the merits.
above reasons, the court will deny petitioner's motion
for leave to proceed in forma pauperis (D.I. 3) and his
motions for injunctive relief (D.I. 3; D.I. 4), and dismiss
without prejudice his motion seeking representation by
counsel (D.I. 3 at 5). A separate order shall issue.