United States District Court, D. Delaware
Robert Conaway ("Plaintiff'), an inmate at the James
T. Vaughn Correctional Center in Smyrna, Delaware, filed this
Complaint pursuant to 42 U.S.C. § 1983. On July 1, 2019,
the Court screened the Complaint pursuant to the Prison
Litigation Reform Act and dismissed some claims and all but
two Defendants. (D.I. 7, 8) Plaintiff has filed a request for
counsel and a motion for reconsideration of the July 1, 2019
Order. (D.I. 9, 10)
REQUEST FOR COUNSEL
requests counsel on the grounds that his case has merit in
fact and law, and he has raised medical negligence,
conspiracy, and illegal delegation of federal and state fund
claims. (D.I. 9) Plaintiff contends the case is complex,
expert testimony will be necessary, and he cannot afford
counsel. He also argues incorrectly that, because the
Complaint survived a motion to dismiss, counsel is
appropriate. A motion to dismiss has not been filed in this
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.
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.
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. Contrary to Plaintiffs position, the
only claim left is a medical needs claims against Defendants
Sheri L. McAfee-Garner and Matthew Wofford, and it does not
appear that the issue is complex. In addition, to date, the
filings demonstrate Plaintiffs 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.
MOTION FOR RECONSIDERATION
standard for obtaining relief under Rule 59(e) is difficult
for Plaintiff to meet. The purpose of a motion for
reconsideration is to "correct manifest errors of law or
fact or to present newly discovered evidence."
Max's Seafood Cafe ex rel. Lou-Ann, Inc. v.
Quinteros, 176 F.3d 669, 677 (3d Cir. 1999). "A
proper Rule 59(e) motion ... must rely on one of three
grounds: (1) an intervening change in controlling law; (2)
the availability of new evidence; or (3) the need to correct
a clear error of law or fact or to prevent manifest
injustice." Lazaridis v. Wehmer, 591 F.3d 666,
669 (3d Cir. 2010) (citing North River Ins. Co. v. CIGNA
Reinsurance Co., 52 F.3d 1194, 1218 (3d Cir. 1995)). A
motion for reconsideration is not properly grounded on a
request that a court rethink a decision already made. See
Glendon Energy Co. v. Borough of Glendon, 836 F.Supp.
1109, 1122 (E.D. Pa. 1993). Motions for reargument or
reconsideration may not be used "as a means to argue new
facts or issues that inexcusably were not presented to the
court in the matter previously decided." Brambles
USA, Inc. v. Blocker, 735 F.Supp. 1239, 1240 (D. Del.
1990). Reargument, however, may be appropriate where
"the Court has patently misunderstood a party, or has
made a decision outside the adversarial issues presented to
the court by the parties, or has made an error not of
reasoning but of apprehension." Brambles USA,
735 F.Supp. at 1241 (D. Del. 1990) (citations omitted);
See also D. Del. LR 7.1.5.
Court has once again reviewed the Complaint, the order at
issue, and Plaintiffs motion. Plaintiff asks the Court to
reinstate the grievance claims raised against Amanda L. Dean,
Beth E. Bittner, Christina Spanos, Beverly Trout, and Marc
Richman. However, Plaintiffs dissatisfaction with the
grievance procedure or denial of his grievances, fails to
state a claim because an inmate does not have a
"free-standing constitutionally right to an effective
grievance process." Woods v. First Corr. Med.,
Inc., 446 Fed.Appx. 400, 403 (3d Cir. Aug. 18, 2011).
Plaintiff argues that the dismissed defendants failed to
follow Delaware Department of Correction policy for
grievances, but the mere failure of prison officials to
follow their own regulations in itself is not a
constitutional violation. See Tennille v. Quintana,
443 Fed.Appx. 670, 672 n.2 (3d Cir. 2011) (per curiam).
appears to allege new facts to support his position,
particularly with regard to claims against former Warden Dana
Metzger. These new facts are not considered, however, because
this is not the appropriate vehicle to do so. See e.g.,
Commonwealth of Pa. ex rel. Zimmerman v. PepsiCo, Inc.,
836 F.2d 173, 181 (3d Cir. 1988) (a brief is helpful only to
the extent it finds support in the allegations set forth in
the complaint). In addition, Plaintiff also suggests that he
raises a medical negligence claim. The Court did not construe
the Complaint as doing so. Moreover, Plaintiff did not comply
with the requirements for raising such a claim under Delaware
law that include the filing of an affidavit of merit when
commencing a medical negligence action. See 18 Del.
C. § 6853 (no health-care negligence lawsuit shall be
filed unless it is accompanied by an affidavit of merit with
expert medical testimony).
Plaintiff seeks to support his claims by relying upon the
December 29, 2006 memorandum of agreement between the United
States Department of Justice and the State of Delaware
following an investigation of five Delaware prison facilities
pursuant to the Civil Rights of Institutionalized Persons
Act, which authorizes the federal government to identify and
root out systemic abuses regarding the four institutions. He
may not do so. Paragraph I.F. of the agreement provides that
it may not be used as evidence of liability in any other
review of the filings in the case, the Court concludes that
Plaintiff has failed to demonstrate any of the necessary
grounds to warrant a reconsideration of the Court's July
1, 2019 Memorandum and Order. Therefore, the motion for
reconsideration will be denied.