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Damiani v. Duffy

United States District Court, D. Delaware

February 16, 2017

PABLO A. DAMIANI, Plaintiff,
DETECTIVE DUFFY, et al., Defendants.

          Order 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, and Parton.

          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 Detective Morrissey.


          ANDREWS, U.S. District Judge:

         Plaintiff 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.


         Plaintiff 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).

         A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel.[1] 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.

         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 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.

         Plaintiff 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.


         Defendant 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).

         In 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 ...

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