United States District Court, D. Delaware
Wilmington, this 29th day of October 2018, having
considered Plaintiff's request for counsel (D.I. 9);
ORDERED that Plaintiff's request for counsel (D.I. 9) is
DENIED without prejudice to renew, for the reasons that
Plaintiff Tramell Trott, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed this lawsuit
pursuant to 42 U.S.C. § 1983. (D.I. 3) He appears
pro se and was granted permission to proceed in
forma pauperis pursuant to 28 U.S.C. §1915. (D.I.
Plaintiff seeks counsel on the grounds that he is unable to
afford counsel, the issues are complex, he has extremely
limited access to the law library, he has unsuccessfully
sought counsel, he has limited knowledge of the law, he
suffers from bipolar disorder that can affect his daily
activities and thought process and it hinders his ability to
fully comprehend this civil litigation.
Federal Rule of Civil Procedure 17(c)(2) provides that
"[t]he court must appoint a guardian ad litem - or issue
another appropriate order - to protect a minor or incompetent
person who is unrepresented in an action." The United
States Court of Appeals for the Third Circuit has determined
that the district court has a responsibility to inquire sua
sponte under Rule 17(c)(2), whether a pro se
litigant is incompetent to litigate his action and,
therefore, is entitled to either appointment of a guardian ad
litem or other measures to protect his rights. See Powell
v. Symons, 680 F.3d 301, 307 (3d Cir. 2012).
Court considers whether Rule 17(c) applies "[i]f a court
[is] presented with evidence from an appropriate court of
record or a relevant public agency indicating that the party
had been adjudicated incompetent, or if the court receive[s]
verifiable evidence from a mental health professional
demonstrating that the party is being or has been treated for
mental illness of the type that would render him or her
legally incompetent." Powell, 680 F.3d at 307
(citing Ferrelli v. River Manor Health Care Ctr.,
323 F.3d 196, 201 (2d Cir. 2003)). The Court "need not
inquire sua sponte into a pro se plaintiff's
mental competence based on a litigant's bizarre behavior
alone, even if such behavior may suggest mental
incapacity." Id. at 303 (citations omitted).
The decision whether to appoint a next friend or guardian ad
litem rests with the sound discretion of the district court.
Powell, 680 F.3d at 303.
the instant action, Plaintiff makes bald allegations of
mental illness. Plaintiff has not submitted any verifiable
evidence of incompetence to the Court. Thus, the Court has no
duty to conduct a sua sponte determination of competency
under Rule 17(c)(2).
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. A review of the Complaint
indicates that the issues are not complex. In addition, to
date, the filings demonstrate Plaintiff's ability to
articulate his claims and represent himself. 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.
See Mallard v. United States Dist.
Court for the S. Dist of Iowa,490 U.S. 296 (1989)
(§1915(d) (now § 1915(e)(1)) does not authorize a
federal court to require an unwilling attorney to represent
an indigent civil litigant, the operative ...