United States District Court, D. Delaware
plaintiff DeShawn Drumgo ("Drumgo"), a former
inmate at the James T. Vaughn Correctional Center
("VCC"), Smyrna, Delaware, now housed at SCI Coal
Township in Coal Township, 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. 7.) Pending are numerous motions
filed by Drumgo. (D.I. 87, 90, 9193, 97, 102.)
habit is to file one motion and apply it to multiple cases
even though the issues are not identical and the cases are
not in the same posture. The result is confusion. Therefore,
Drumgo is placed on notice that in the future, motions he
files containing more than one case number, similar to D.I.
90, 97, and 102, will be docketed but not considered.
I. Motion for Reconsideration
October 25, 2017, the court signed an order that denied
Drumgo's motions for injunctive relief. (D.I. 83, 84.) At
issue was Drumgo's property. Drumgo contends that he was
transferred to the Pennsylvania Department of Corrections
without his property and he was in particular need of his
glasses. The defendants provided an inventory of Drumgo's
belongings, signed by Drumgo, that included the glasses.
Drumgo's motions were denied. Drumgo moves for
reconsideration on the grounds that it is not his signature.
He asks that the issue be revisited. (D.I. 87.)
standard for obtaining relief under Rule 59(e) is difficult
for Drumgo to meet. The purpose of a motion for
reconsideration is to "correct manifest errors of law or
fact or to present newly discovered evidence."
Max's Seafood Cafe ex rel. 'Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 611 (3d Cir. 1999). "A
proper Rule 59(e) motion . . . must rely on one of three
grounds: (1) an intervening change in controlling law; (2)
the availability of new evidence; or (3) the need to correct
a clear error of law or fact or to prevent manifest
injustice. Lazaridis v. Wehmer, 591 F.3d 666, 669
(3d Cir. 2010) (citing N. River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A
motion for reconsideration is not properly grounded on a
request that a court rethink a decision already made. See
Glendon Energy.Co. v. Borough of Glendon, 836 F.Supp.
1109, 1122 (E.D. Pa. 1993). Motions for reargument or
reconsideration may not be used "as a means to argue new
facts or issues that inexcusably were not presented to the
court in the matter previously decided." Brambles
USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del.
1990). Reargument, however, may be appropriate where
"the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the court by the parties, or has made an error not of
reasoning but of apprehension." Brambles USA,
735 F.Supp. at 1241 (D. Del. 1990) (citations omitted);
See also D. Del. LR 7.1.5.
court has reviewed the filings and opposition to Drumgo's
motions for injunctive relief, including exhibits submitted
by the defendants. The court finds that Drumgo has failed to
demonstrate any grounds to warrant reconsideration of the
October 25, 2017 order. Therefore, the court will deny the
motion for reconsideration. (D.I. 87.)
Requests for Counsel
seeks counsel on the grounds that he is being transferred
from prison to prison, each time he is transferred he loses
his documents, he has little to no resources because there is
not up-to-date case law due to the backward prison where he
is held, counsel is necessary for a thorough investigation,
expert witnesses will be necessary, he is unable to retain
counsel, his mail is often destroyed, and he is indigent.
(D.I. 90, 93, 102.)
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.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 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 the plaintiffs requests, the court concludes that
the case is not so factually or legally complex that
requesting an attorney is warranted. Drumgo is an experienced
pro se litigator and to date, the filings in this
case demonstrate his ability to articulate his claims and
represent himself. The court provided Drumgo with documents
in this case. He states that they have either been
"destroyed or deprive[d]" making it impossible for
him to litigate. The Clerk of Court will be directed to
provide Drumgo with a copy of the court docket, and Drumgo
shall advise the court if there are documents he believes he
needs to litigate the case. Therefore, the court will deny
without prejudice to renew the plaintiffs requests for
counsel. (D.I. 90, 93, 102.) Should the need for counsel
arise later, one can be appointed at that time.
title of Drumgo's first motion for injunctive relief is
"motion of injunction to force the Department of Justice
to compel Delaware DOC to order [its] contractors of PA DOC
to turn over Plaintiffs legal documents concerning this
case." (D.I. 90.) His second motion for injunctive
relief, filed the same day, seeks the return of his legal
documents or replevin. (D.I. 91.)
seeking a preliminary injunction must show: (1) a likelihood
of success on the merits; (2) that it will suffer irreparable
harm if the injunction is denied; (3) that granting
preliminary relief will not result in even greater harm to
the nonmoving party; and (4) that the public interest favors
such relief. Kos Pharmaceuticals, Inc. v. Andrx
Corp.,369 F.3d 700, 708 (3d Cir. 2004) (citation
omitted). "Preliminary injunctive relief is 'an
extraordinary remedy' and 'should be granted only in
limited circumstances.'" Id. (citations
omitted). Because of the intractable problems of prison
administration, a request for injunctive relief in the prison