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Evans v. Sexton

United States District Court, D. Delaware

May 18, 2018

AUGUSTUS HEBREW EVANS, JR., Plaintiff,
v.
LEZLEY SEXTON, et al., Defendants.

          Augustus Hebrew Evans, Jr., James T. Vaughn Correctional Center, Smyrna, Delaware, Pro Se Plaintiff.

          Dana Spring Monzo, Esquire, and Roopa Sabesan, Esquire, White & Williams, Wilmington, Delaware, Counsel for Defendants Lezley Sexton, Christine Francis, and Dr. Herman Ellis.

          Megan Trocki Mantzavinos, Esquire, Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Counsel for Defendants Deborah Muscarella and Dr. Anthony Cannuli.

          MEMORANDUM OPINION

          ANDREWS, U.S. DISTRICT JUDGE

         Plaintiff 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).

         REQUEST FOR COUNSEL

         Plaintiff requests counsel on the grounds that he has "learn[ed] from [his] mistakes" and "realize[s] the benefit of counsel." (D.I. 78).[1] A pro se litigant proceeding in forma pauperis has no constitutional or statutory right to representation by counsel.[2]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 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 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.

         I do 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).[3] 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.

         MOTION FOR DEFAULT JUDGMENT

         On 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. Fed.R.Civ.P. 55(a).

         Timely 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).

         Here, 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.)

         MOTION FOR FUNDS TO OBTAIN ...


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