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Drumgo v. Kuschel

United States District Court, D. Delaware

October 26, 2017




         The 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.)


         On July 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 respects. Id.


         A. Motion to Enforce

         On May 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 enforce.

         B. Requests for Counsel

         Drumgo 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.)

         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.3dat 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 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.

         After 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.

         C. Documents and Discovery

         This 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 ...

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