United States District Court, D. Delaware
Augustus Hebrew Evans, Jr., James T. Vaughn Correctional
Center, Smyrna, Delaware, Pro Se Plaintiff.
Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White
& Williams, Wilmington, Delaware, Counsel for Defendants
Lezley Sexton, Christine Francis, and Dr. Herman Ellis.
Trocki Mantzavinos, Esquire, Marks, O'Neill, O'Brien,
Doherty & Kelly, P.C., Counsel for Defendants Deborah
Muscarella and Dr. Anthony Cannuli.
ANDREWS, U.S. DISTRICT JUDGE
Augustus Hebrew Evans, Jr., an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 asserting constitutional
violations and raising supplemental state claims. He appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 6). The Court screened the
Complaint on November 4, 2016, and identified cognizable and
non-frivolous claims. (See D.I. 10). Before the
Court are three motions filed by Plaintiff: (1)
Plaintiff's motion for funds to obtain an affidavit of
merit and/or sworn certification in lieu of affidavit of
merit, (2) Plaintiff's motion for appointment of counsel,
and (3) Plaintiff's motion for default judgment as to
Defendants Cannuli and Deborah Muscarella. (D.I. 78, 84, 97).
requests counsel on the grounds that he has "learn[ed]
from [his] mistakes" and "realize[s] the benefit of
counsel." (D.I. 78). 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
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 i 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.
not to date have any basis for concluding that
Plaintiff's case has any arguable merit in fact.
Assuming, however, solely for the purpose of deciding this j
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 I an
attorney is warranted. In addition, Plaintiff has ably
represented himself to date. (D.I. 78). 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 DEFAULT JUDGMENT
April 2, 2018, Plaintiff filed a motion for default judgment
against Muscarella and Cannuli on the grounds that they did
not respond to the second amended complaint. (D.I. 84). Entry
of default judgment is a two-step process. Fed.R.Civ.P.
55(a), (b). A party seeking to obtain a default judgment must
first request that the Clerk of the Court "enter... the
default" of the party that has not answered the pleading
or "otherwise defend[ed], " within the time
required by the rules or as extended by court order.
serving and filing a motion to dismiss under Fed.R.Civ.P.
12(b), precludes entry of default. See, e.g., Francis v.
Joint Force Headquarters Natl Guard, 2006 WL 2711459,
(D.N.J. 2006), aff'd in part, 247 Fed.Appx. 387
(3d Cir. 2007). Even if default is properly entered, the
entry of judgment by default pursuant to Rule 55(b)(2) is
within the discretion of the trial court. Hritz v. Woma
Corp., 732 F.2d 1178, 1180 (3d Cir. 1984).
there has been no entry of default. Moreover, Defendants have
appeared j and filed motions to dismiss the second amended
complaint. Therefore, the Court will deny the motion for
default judgment. (D.I. 84.)
FOR FUNDS TO OBTAIN ...