United States District Court, D. Delaware
Wilmington, this 6th day of October 2017, having considered
Plaintiff's request for counsel (D.I. 30) and motion for
emergency injunctive relief and protection (D.I. 32);
ORDERED that Plaintiff's: (1) request for counsel is
denied without prejudice to renew (D.I. 30);
and (2) motion for emergency injunctive relief and protection
is dismissed without prejudice (D.I. 32),
for the following reasons:
Wardell Leroy Giles, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this lawsuit
pursuant to 42 U.S.C. § 1983. (D.I. 1). He appears
pro se and was granted permission to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915. (D.I.
seeks counsel to assist him with discovery and to better
articulate his claims. (D.I. 30). A 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 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. After reviewing Plaintiff's
complaint, the Court concludes that the case is not so
factually or legally complex that requesting an attorney is
warranted. In addition, Plaintiff has ably represented
himself to date and this case is in its early stages.
Therefore, the Court will deny Plaintiff's request for
counsel without prejudice to renew. Should the need for
counsel arise later, one can be sought at that time.
for Injunctive Relief.
seeks injunctive relief. (D.I. 32). He states that
non-parties Sgt. Aspinall, Officer Pfleegor and others have
retaliated against him and he is being treated cruelly and
inhumanely. Plaintiff explains that this occurred when he was
moved from the infirmary dorm to an isolation cell designed
for inmates with contagious and airborne diseases that is
sometimes used for disciplinary action. Plaintiff alleges
that he was transferred as a result of litigation he has
filed against the foregoing non-parties' co-workers and
preliminary injunction is "an extraordinary remedy that
should be granted only if: (1) the plaintiff is likely to
succeed on the merits; (2) denial will result in irreparable
harm to the plaintiff; (3) granting the injunction will not
result in irreparable harm to the defendant; and (4) granting
the injunction is in the public interest."
NutraSweet Co. v. Vit-MarEnterprises, Inc., 176 F.3d
151, 153 (3d Cir. 1999). "[F]ailure to establish any
element in [a plaintiffs] favor renders a preliminary
injunction inappropriate." Id. Furthermore,
because of the intractable problems of prison administration,
a request for injunctive relief in the prison context must be
viewed with considerable caution. Rush v. Correctional
Med. Services, Inc., 287 Fed.Appx. 142, 144 (3d Cir.
2008) (citing Goff v. Harper, 60 F.3d 518, 520 (8th
seeks injunctive relief against individuals who are not
parties to this action and who are not mentioned as
participating in the events described in Plaintiffs
Complaint. Should Plaintiff wish to seek relief against
Aspinall, Pfleegor, and others, his remedy is to commence a
separate lawsuit against them. Accordingly, the Court will
dismiss without prejudice the motion for injunctive relief.