United States District Court, D. Delaware
Wilmington, this 14th day of December, 2017,
having considered Plaintiffs requests for counsel and motion
to compel (D.I. 23, 24, 39); IT IS ORDERED that the: (1)
requests for counsel (D.I. 23, 24) are
DENIED without prejudice to renew; and (2)
the motion to compel (D.I. 39) is DENIED,
for the reasons that follow:
Anthony Stevenson, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act, 42 U.S.C. § 12101, et seq. He
appears pro se and has been granted leave to proceed
in forma pauperis. (D.I. 5).
Requests for Counsel.
seeks counsel on the grounds that he is unable to afford
counsel, his imprisonment greatly limits his ability to
litigate the matter, he has limited law library access and
limited knowledge of the law, a trial will likely involve
conflicting testimony and counsel will better enable
Plaintiff to present evidence and cross-examine witnesses, he
has made repeated efforts to obtain counsel, he has a limited
formal education, and counsel will aid in the discovery
process. (D.I. 23, 24). 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
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 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.
Assuming, solely for the purpose of deciding this motion,
that Plaintiffs 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, to date, Plaintiff has ably
represented himself in this case. Further, should Plaintiff
have difficulties in obtaining discovery, he has the option
of seeking relief from the Court. In light of the foregoing,
the Court will deny without prejudice to renew Plaintiffs
requests for counsel. Should the need for counsel arise
later, one can be sought at that time. Accordingly,
Plaintiffs requests for counsel (D.I. 23, 24) are denied
without prejudice to renew.
Motion to Compel.
served a second request for production of documents upon
Defendants on October 4, 2017. (D.I. 28). Plaintiff moves to
compel a discovery response.
Pursuant to Fed.R.Civ.P. 26, "[p]arties may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case, considering the importance of the issues
at stake in the action, the amount in controversy, the
parties' relative access to relevant information, the
parties' resources, the importance of the discovery in
resolving the issues, and whether the burden or expense of
the proposed discovery outweighs its likely benefit.
Information within this scope of discovery need not be
admissible in evidence to be discoverable." Fed.R.Civ.P.
object of Plaintiffs motion is Request No. 9 which seeks a
copy of Department of Correction policies and procedures
Number 1135. Plaintiff seeks to compel Defendants to provide
the policy and "any other policy that governs inmate
workers at the Delaware Correctional Center." (D.I. 39).
His motion quotes the language of the policy.
Defendants respond that the DOC does not have a policy or
procedure numbered 1135. (D.I. 42). However, Defendants
provided Plaintiff BOP Policy 2.2, which contains language
similar to that identified b y Plaintiff in his motion to
compel. The Court finds that Defendants have adequately
responded to Request No. 9. Therefore, the motion to compel
(D.I. 39) is denied.