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Winter v. Hyde

United States District Court, D. Delaware

May 8, 2019

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.



         Plaintiff 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.[1] (D.I. 71)

         I. Requests for Counsel

         Plaintiff 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)

         The 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.

         Plaintiff 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 an action."

         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 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.

         In the 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).

         A 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").

         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 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.

         Assuming, 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.


         Plaintiff 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).

         To 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.


         Plaintiff 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, 12)

         Metzger 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 ...

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