United States District Court, D. Delaware
PABLO A. DAMIANI, Plaintiff,
DETECTIVE DUFFY, et al., Defendants.
Pablo A. Damiani, James T. Vaughn Correctional Center,
Smyrna, Delaware, Pro Se Plaintiff.
Michael F. McTaggart, Deputy Attorney General, Delaware
Department of Justice, Wilmington, Delaware. Counsel for
Defendants Detective Duffy, Gary Potts, Daniel Grassi,
Corporal Lano, Eric Daniels, John Dudzinski, Mark Hawk,
Ronald Kline, Corey Godek, Detective Tsai, Detective Rhoades,
Detective Glenn, Rob Krisilla, James Kelly, Scott Galbreath,
Charles M. Oberly III, United States Attorney, and Jennifer
Lynne Hall, Assistant United States Attorney, Wilmington,
Delaware. Counsel for Defendants Casey Bouldin, Detective
Morrissey, Ronald Kline, and the United States of America.
Rosamaria Tassone-DiNardo, Esquire, City of Wilmington Law
Department, Wilmington, Delaware. Counsel for Defendant
ANDREWS, U.S. District Judge:
Pablo A. Damiani, an inmate at the James T. Vaughn
Correctional Center, Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. He appears pro se
and has been granted leave to proceed in forma
pauperis. (D.I. 7). The case proceeds on the fourth
amended complaint (D.I. 214), which raises excessive force
claims against Defendants. Before the Court are
Plaintiff's Request for Counsel (D.I. 229),
Plaintiff's Motion to Strike his own deposition (D.I.
237), and Defendant Casey Bouldin's Motion for Sanction
of Dismissal (D.I. 232). Briefing on the motions is complete.
seeks counsel on the grounds that he is indigent with no
legal training, is confined in administrative segregation,
has limited law library access, Defendants are represented by
attorneys, he has no ability to investigate his case,
considerable discovery is necessary, there are conflicting
statements of the parties, and the allegations, if proved,
clearly establish a constitutional violation. (D.I. 229).
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 plaintiffs 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 plaintiffs
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.
has previously requested, and been denied, counsel on
numerous occasions. (See D.I. 20, 58, 65, 82, 115,
127, 177). Once again reviewing Plaintiffs requests, the
Court concludes that the case is not so factually or legally
complex that appointing an attorney is warranted. 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, Plaintiffs request for counsel. (D.I. 229). The Court
will revisit the issue should it become necessary to do so.
FOR SANCTION OF DISMISSAL
Casey Bouldin moves for dismissal of this case as a sanction
on the basis that Plaintiff repeatedly perjured himself
during his deposition. (D.I. 232). Plaintiff responds that he
did not lie during his deposition and that his deposition
testimony is consistent with the testimony he provided during
his criminal trial. (D.I. 250, 252).
support of his motion, Bouldin refers to a recorded telephone
conversation between Plaintiff and his fiance, and two other
recorded interviews; one when Plaintiff was interviewed by
detectives and the other when he agreed to an
"off-the-record proffer" of information during plea
negotiations in his criminal case. (D.I. 234 at Exs. 6, 7,
10). In the recorded conversations and interviews, Plaintiff
stated that he had committed twenty-two armed robberies in
2010, including four robberies on the night of his December
6, 2010 arrest. (Id.) Plaintiff did not accept the
plea offer, was tried by a jury, and convicted in Delaware
Superior Court of eighteen counts of robbery in the first
degree, thirty-three counts of possession of a firearm during
the commission of a felony, eleven counts of wearing a
disguise, six counts of conspiracy in the second ...