United States District Court, D. Delaware
Plaintiff James Hardwick, an inmate at the James T. Vaughn
Correctional Center in Smyrna, Delaware, filed a Complaint
raising medical needs claims pursuant to 42 U.S.C. §
1983, followed by an Amended Complaint. (D.I. 2, 8).
Plaintiff appears pro se and has been granted leave
to proceed in forma pauperis. (D.I. 6). Before the
Court are several motions filed by Plaintiff. (D.I. 36, 46,
Request For Counsel. Plaintiff requests counsel on the
grounds of factual and legal complexity, his extremely
limited ability to investigate, conflicting testimony, his
ability to present his claims, and the need for expert
witnesses in a medical case. (D.I. 36). 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 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, to date Plaintiff has
ably represented 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.
Motion for Issuance of Subpoenas. Plaintiff seeks issuance of
a subpoena directed to Defendant's counsel to produce
documents, information, or objects (D.I. 46. (D.I. 46). The
motion will be denied. Should Plaintiff seek discovery from
Defendant, who is a party in this case, Plaintiff is required
to comply with the Federal Rules of Civil Procedure.
See Fed. R. Civ. P. 33 and 34.
Motion to Compel. Plaintiff moves to compel Defendant to
provide requested documentation. (D.I. 47). Rather than
indicate what discovery he seeks; Plaintiff's motion
merely recites Rule 26 and 37 of the Federal Rules of Civil
Procedure. Fed.R.Civ.P. 26. It may be that that Plaintiff
seeks documents Defendant subpoenaed from the Department of
Correction to obtain records given that he attached a copy of
the subpoena to his motion. However, Plaintiff does not
direct the Court to any request for production of documents
that he served upon Defendant and to which there was no
response. Therefore, the motion will be denied.
Motion for an Order of Contempt. Plaintiff asks the Court to
issue an order of contempt should counsel for Defendant fail
to supply documents to Plaintiff. (D.I. 48). He also asks the
Court to direct Defendant to provide him with medical records
Defendant has received via subpoena. The Court will deny the
motion as there are no grounds to issue sanctions. As
discussed, above, Plaintiff shall comply with the Federal
Rules of Civil Procedures when seeking discovery from
Defendant. Of course, Defendant has a duty to supplement its
Conclusion. Based upon the above discussion, the Court will:
(1)deny Plaintiff's request for counsel without prejudice
to renew (D.I. 36); (2) deny Plaintiffs motion for issuance
of a subpoena to produce documents, information, or objects
(D.I. 46); (3) deny Plaintiff's motion to compel
Defendant to provide requested documentation (D.I. 47); and
(4) deny Plaintiff's motion for an order of contempt
(D.I. 48). An appropriate Order will be entered.
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 ...