United States District Court, D. Delaware
Robert Saunders a/k/a Shamsidin Ali ("Plaintiff"),
a prisoner housed at the James T. Vaughn Correctional Center
("JTVCC") in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983 and the Americans with
Disabilities Act. Pending are several motions filed by
Plaintiff including a third request for counsel (D.I. 90),
two motions to compel (D.I. 95, 98), and a motion for a
revised scheduling order (D.I. 98).
Class Action Allegations.
has filed a document titled "Class Action
Allegations." (D.I. 89). Plaintiffs previous motions
seeking class certification were denied on December 2, 2016.
(See D.I. 33, 34) The filing seeks no relief and, therefore,
it is not clear if Plaintiff again seeks class certification,
if the allegations are intended to persuade the Court to
reconsider its previous denial of class certification, or if
Plaintiff is merely briefing the issue. The Court takes no
action on the filing but notes that, given the
Complaint's allegations, class certification is not
Request for Counsel.
appears pro se and has been granted permission to
proceed in forma pauperis pursuant to 28 U.S.C.
§ 1915. He has previously been denied counsel. (D.I. 34)
Plaintiff seeks counsel on the grounds that he is unable to
afford counsel, he has attempted to secure counsel, the case
involves investigations and obtaining depositions, and
records are required that are not available to him based upon
his inmate status. (D.I. 90) Plaintiff also indicates that he
has serious medical issues which result in pain and
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 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 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.
Assuming, solely for the purpose of deciding this 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 an
attorney is warranted. In addition, Plaintiff has ably
represented himself to date. Further, nothing has changed
since the Court last denied Plaintiffs requests for counsel.
Therefore, the Court will deny Plaintiff's request for
counsel without prejudice to renew. (D.I. 90) Should the need
for counsel arise later, one can be sought at that time.
Motions to Compel.
Court entered a scheduling order on November 3, 2016, setting
a deadline for discovery to be initiated so that it would be
completed on or before May 3, 2017. (D.I. 30) All deadlines
have passed, although Plaintiff recently filed a motion to
extend all deadlines by twenty-one days, discussed below.
Plaintiff moves for an order compelling Defendant Department
of Correction ("DOC") to respond to his first set
of interrogatories. (D.I. 94) This is Plaintiffs second
motion to compel responses to the same interrogatories. (See
D.I. 44) On January 26, 2017, Plaintiff sought to compel
Defendants to answer interrogatories 4, 5, 8, 11, 13, 14,
16-23, and 26-28. (See D.I. 44) The motion was denied. (See
D.I. 51) In the instant motion, Plaintiff again seeks
responses to the DOC's answers to many of same
interrogatories raised in the January 26, 2017 motion. In
addition, he moves to compel answers to Interrogatories 10,
24, and 25. (D.I. 94)
Court previously addressed many of the DOC's answers to
the interrogatories and found them adequate. Plaintiff could
have sought to compel answers to Interrogatories 10, 24, and
25 in his second motion to compel filed on January 26, 2017.
(D.I. 44) He did not. Nor did he file the instant motion to
compel until May 17, 2018, one year after the expiration of
the discovery deadline. Courts have determined that
"[m]otions to compel filed after the discovery deadline
are untimely prohibited, absent good cause."
Zimmerman v. Edwin A. Abrahamsen & Associates,
P.C.., 2017 WL 3701827, at *4 (M.D. Pa. Aug. 28, 2017).
Plaintiff provides no reason for the delay in filing the
motion. Therefore, the Court will deny the motion as
duplicative and untimely. (D.I. 94)
Plaintiff moves to compel answers to interrogatories
propounded upon Defendant Roxanne Kinlock
("Kinlock") on April 10, 2018. (See D.I.
85, 95) Plaintiff sought discovery from Kinlock long after
the expiration of the discovery deadline and, when there was
no response, filed a motion to compel. The interrogatories
were untimely served upon Kinlock, and she was not required
to respond to them. Therefore, the Court will deny the motion
to compel. (D.I. 95)
Motion for Amended ...