United States District Court, D. Delaware
plaintiff DeShawn Drumgo ("Drumgo"), a former
inmate at the James T. Vaughn Correctional Center
("VCC"), Smyrna, Delaware, recently transferred to
SCI Fruckville in Fruckville, Pennsylvania, filed this
lawsuit pursuant to 42 U.S.C. § 1983. He proceeds pro
se and has been granted leave to proceed in
forma pauperis. (See D.I. 6.)
22, 2016, the court granted summary judgment in favor of the
remaining defendants based upon Drumgo's failure to
exhaust his administrative remedies. (D.I. 59, 60.) Drumgo
appealed. (D.I. 63.) On appeal, the State conceded that
Drumgo had exhausted his administrative remedies as to the
defendant Officer Kuschel ("Kuschel"). As a result,
the United States Court of Appeals for the Third Circuit
vacated this court's judgment as to Kuschel only and
remanded the matter for further consideration of the claim.
See Drumgo v. Kuschel, 684 Fed.Appx. 228 (3d Cir.
2017). The district court judgment was affirmed in all other
Motion to Enforce
18, 2017, Drumgo advised the court that all his documents had
been confiscated as a result of the February 2017 hostage
incident at the VCC. The court ordered Kuschel and the Clerk
of Court to provide Drumgo certain documents. When the
defendant had not provided the documents, Drumgo filed a
motion to enforce the defendant's failure to turn over
documents. (D.I. 85.) On the same day, defense counsel
advised the court that the documents had been provided to
Drumgo. Therefore, the court will deny as moot the motion to
Requests for Counsel
requests counsel on the grounds that he is having difficulty
obtaining discovery (D.I. 90) and that he was transferred to
the Pennsylvania correctional facility without any of the
documents that had been re-issued to him by the defendant and
the Clerk of Court. (D.I. 90, 101.) He also contends that his
recent been transferred to a correctional facility in the
Commonwealth of Pennsylvania is a form of retaliation. (D.I.
106.) Drumgo's most recent request for counsel contains a
litany of complaints regarding the conditions under which he
is confined in the Commonwealth of Pennsylvania Department of
Corrections ("PDOC"). (See id.)
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.3dat 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 plaintiffs claim; (2) the plaintiffs
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 plaintiffs 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.
reviewing Drumgo's requests, the court concludes that the
case is not so factually or legally complex that requesting
an attorney is warranted. To date, the filings in this case
demonstrate his ability to articulate his claims and
represent himself. Thus, in these circumstances, the court
will deny without prejudice to renew Drumgo's requests
for counsel. (D.I. 90, 101, 106.) Should the need for counsel
arise later, one can be sought at that time.
Documents and Discovery
matter cannot move forward if Drumgo does not have the
necessary documents. The defendants advise the court that
Drumgo received between three and six boxes and/or bags
"apparently containing virtually all of his accumulated
legal paperwork related to" Drumgo's case. (D.I.
103.) Since it is not clear to the court that Drumgo has
received all of his legal documents, the defendant or his
counsel will be ordered to provide to Drumgo copies of the
following documents as they relate to remaining defendant
Kuschel: answer to complaint (D.I. 23); discovery requests
and responses (D.I. 34, 37, 41, 91); any exhibits submitted
to the United States Court of Appeals in Case ...