United States District Court, D. Delaware
HERMIONE KELLY IVY WINTER, a/k/a Najmaa-bint-Sakinah S. bint-Sard-Khadijah, f/k/a David A. Allemandi, Plaintiff,
HYDE, et al., Defendants.
HONORABLE LEONARD P. STARK UNITED STATES DISTRICT JUDGE
Hermione Kelly Ivy Winter, a/k/a Najmaa-bint-Sakinah S.
bint-Sard-Khadijah, f/k/a David A. Allemandi ('Tlaintiff
*), an inmate at the James T. Vaughn Correctional Center
("VCC") in Smyrna, Delaware, filed this action
pursuant to 42 U.S.C. § 1983. (D.I. 2) She appears
pro se and has been granted leave to proceed in
forma pauperis. (D.I. 7) She has filed a number of
motions. (D.I. 25, 26, 34, 36, 37, 39, 44, 49, 51, 63, 73,
74, 76, 79) In addition, a non-party inmate moves to
intervene in the action and two non-party inmates move for
leave to proceed in forma pauperis. (D.I. 56, 65,
67) Finally, Defendant Warden Dana Metzger
("Metzger") moves to compel Plaintiff to answer
discovery. (D.I. 71)
Requests for Counsel
seeks counsel on the grounds that she is moving to have the
matter proceed as a class action, she does not have the
ability to present her case, she is unskilled in the law and
the case is factually complex but not legally complicated,
expert witness testimony will be necessary, she needs
assistance with discovery, she cannot attain and afford
counsel, and she is severely mentally ill, referring to Civ.
No. 17-1322-LPS (consolidated). (D.I. 25, 34, 49, 73)
Plaintiff has also filed a motion in all her cases for an
extension of time and for a "hasty response" to her
requests for counsel. (D.I. 76)
Court turns first to the motion for an extension of time and
for a "hasty response." (D.I. 73) Rather than file
a motion directed to this case, the motion is a global motion
that contains case numbers for four cases filed by Plaintiff.
Each case has different deadlines and different parties. The
motion refers to deadlines imposed in other cases. Plaintiff
must file a motion specific to this case if she wishes to
obtain relief in this case. Therefore, the Court will deny
this global motion.
seeks counsel based on her claim she is severely mentally
ill. The Court has a responsibility to inquire sua
sponte under Fed.R.Civ.P. 17(c)(2) whether apro
se litigant is incompetent to litigate her action and
is, therefore, entitled either to appointment of a guardian
ad litem or other measures to protect her rights. See
Powell v. Symons, 680 F.3d 301, 303, 307 (3d Cir. 2012).
Rule 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
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 plaintiffs mental competence based on
a litigant's bizarre behavior alone, even if such
behavior may suggest mental incapacity," but "if
there has been a legal adjudication of incompetence and that
is brought to the court's attention, the Rule's
provision is brought into play." Id. (citations
omitted). The decision whether to appoint a next friend or
guardian ad litem rests with the sound discretion of the
district court. See Id. at 303.
instant action, while Plaintiff makes allegations of mental
illness, she has failed to submit any verifiable evidence of
incompetence. Plaintiff refers to a consolidated case she
filed in this Court where her request for counsel was
granted. In that case, she also made bald allegations of
mental illness, but other factors warranted granting her
motion. Thus, in accordance with Powell, 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 Brightwellv. 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 plaintiffs claim has arguable merit in fact and law.
See Tabron, 6 F.3d at 155; see also 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 federal court to require unwilling
attorney to represent indigent civil litigant, as operative
word in statute is "request").
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 plaintiffs claim; (2) the plaintiffs
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 plaintiffs ability to pursue such
investigation; (5) the plaintiffs 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. See
Tabron, 6 F.3d at 157.
solely for the purpose of deciding this motion, that
Plaintiffs claims have merit in fact and law, several of the
Tabron factors militate against granting her request
for counsel. After reviewing Plain tiffs complaint, the Court
concludes that the case is not so factually or legally
complex that requesting an attorney is warranted. In
addition, while Plaintiff indicates that she wishes this case
to proceed as a class action, it has not been certified as
such. Finally, to date, Plaintiff has shown the ability to
represent herself in this case. In light of the foregoing,
the Court will deny without prejudice to renew Plaintiffs
requests for counsel. (D.I. 25, 34, 49, 73) Should the need
for counsel arise later, one can be sought at that time.
moves for class certification on the grounds that the claims
are "very severe, complex, and will required in depth
investigation, expert witnesses, and a plethora of
inmates," and the issues affect all four Delaware
prisons and a massive number of inmates. (D.I. 26, 63) A
party seeking class certification bears the burden of proving
that the proposed class action satisfies the requirements of
Federal Rule of Civil Procedure 23. See Johnston v. HBO
FilmMgmt., Inc., 265 F.3d 178, 183-84 (3d Cir. 2001).
maintain a class action under Federal Rule of Civil Procedure
23, a plaintiff must first show that "the class is so
numerous that joinder of all members is impracticable"
(numerosity); that "there are questions of law or fact
common to the class" (commonality); that "the
claims or defenses of the representative parties are typical
of the claims or defenses of the class" (typicality);
and that "the representative parties will fairly and
adequately protect the interests of the class"
(adequacy). See Fed. R. Civ. P. 23(a). Second, the
plaintiff must show that the class action falls within one of
the three types enumerated in Rule 23(b). See Gayle v.
Warden Monmouth Cty. Corr. Inst, 838 F.3d 308-09 (3d
Cir. 2016). "Class certification is proper only 'if
the trial court is satisfied, after a rigorous analysis, that
the prerequisites' of Rule 23 are met." In re
Hydrogen Peroxide AntitrustLitig, 552 F.3d 305, 309
& n.5 (3d Cir. 2008), as amended (Jan. 16, 2009) (quoting
General TeL Co. of Southwest v. Falcon, 457 U.S.
147, 161 (1982)). Plain tiffs bare-bones motions fall far
short of meeting her burden of proving the proposed class
action meets the requirements of Rule 23. Therefore, the
motions will be denied without prejudice.
MOTION FOR PRELIMINARY INJUNCTION RELIEF AND TEMPORARY
seeks injunctive relief to enjoin Defendants, their agents,
servants, employees, and attorneys, and those acting in
concert or participation with them, from punishing her in any
way, shape, or form. (D.I. 36) She refers to hole time,
reclassification to maximum, placement in max, write-ups, and
revocation of good time as examples of punishment. Plaintiff
argues that she is recognized as female, and is enrolled in
the transition program, but Defendants refuse to transfer her
to the Baylor Women's Correctional Institution
("BWCI") where the transition program is also
offered. Defendants further refuse to provide her with
religious clothing, and the transition group at the VCC is
causing her trauma. Plaintiff also states that recently she
was notified that if she missed "one group" she
would spend up to 15 days in the hole, one year in the back,
and lose good time, while other inmates are allowed three
unexecuted absences in group. (D.I. 36 at ¶¶ 11,
opposes the motion on the grounds that in a different case
(Civ. No. 16-890-LPS) Plaintiff previously sought, and was
denied, her request for a transfer to Baylor. In addition,
Metzger states that Plaintiff made the same request in State
Court, where it was also denied. Metzger also observes that
the allegations in the motion do not relate to the claims in
the underlying complaint. Metzger provides the declarations
of Captain Bruce Burton ("Burton") and Captain
Ramon Taylor ("Taylor") that indicate Plaintiff has
received treatment, certain housing conditions and
transitions, and is treated no differendy from