Free Order on Motion to Appoint Counsel - District Court of Delaware - Delaware

I Case 1:07-cv-00244-JJF _ Document 34 Filed O2/06/2008 Page 1 0f4
I
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE U
HENRY R. TAYLOR, z
Plaintiff, d ;
v. 1; Civil Action No. O7—244—JJF
KATHLEEN D. FELDMAN, JEANNE K. ;
CAHILL, PATRICK J. O’HARE, :
SHARON AGNEW, and JAMES FRAZIER :
Defendants. ; =
MEMORANDUM ORDER W
Pending before the Court is Plaintiff's Motion for E
Appointment of Counsel (D.I. 21). For the reasons discussed, the
U Motion will be denied.
I. BACKGROUND `
Pro se Plaintiff, Henry R. Taylor, Jr. {“Mr. Taylor"), is
currently an inmate at the Delaware Correctional Center
(“D.C.C.”) in Smyrna, Delaware. On May 3, 2007, Mr. Taylor filed
his Complaint under 42 U.S.C. § 1983, contending that Defendants’
failure to retain certain court files violated his court access,
property, due process and equal protection rights under the
Delaware Constitution and the Fifth and Fourteenth Amendments of
the United States Constitution. Mr. Taylor specifically contends
that between the years of 1998 and 2005 both he and his
relatives, acting on his behalf, made several failed attempts to
obtain court records from an April 8, 1985 plea proceeding.
These records were destroyed per the policy of the Delaware
Superior Court, which only retains certain criminal notes for a

Case 1:07-cv-00244-JJF Document 34 Filed O2/06/2008 Page 2 of 4
I
period of twenty years. (D.I. 2 at Exh. 17). However, Mr. Taylor !
contends he attempted to obtain the records prior to April 8,
2005, and was misled by Defendants during these attempts. As a
result of Defendants' alleged misrepresentations, Mr. Taylor
contends he was prevented from obtaining court records necessary `
to support a legal claim. _ l
By his August 28, 2007 Motion for the Appointment of
Counsel, Mr. Taylor contends that he is unable to afford counsel,
and has made repeated efforts to obtain counsel on a pro bono and
reduced fee basis. Mr. Taylor further contends that he has =
limited access to the prison library, and that counsel is better
able to conduct factual investigations, present evidence, and
cross—examine witnesses.
II. DISCUSSION
Indigent civil litigants have neither a constitutional nor a
statutory right to appointed counsel. Parham v. Johnson, 126
F.3d 454, 456—57 (3d Cir. 1997). However, district courts have
authority to appoint representation for any civil litigant unable
to afford counsel, 28 U.S.C. § 1915(e)(1), and are afforded broad
discretion in making that determination. Tabron v. Grace, 6 F.3d
147, 153 (3d Cir. 1993). The Court must first consider whether
the indigent plaintiff’s claim appears to have·“some merit in
fact and law.” Id. at 155 (citing Maclin v. Freake, 650 F.2d
885, 887 (7th Cir. 1981)(P€f curiam)). If so, the Court may
_ 2

Case 1:07-cv-OO244-JJF Document 34 Filed O2/06/2008 Page 3 of 4
l
consider the following non—exhaustive factors in deciding whether
to appoint counsel:
1. the plaintiff's ability to present his or her own case;
2. the difficulty of the particular legal issues;
3. the degree to which factual investigation will be
necessary and the ability of the plaintiff to pursue
investigation;
4. the plaintiff's capacity to retain counsel on his or
her own behalf;
5. the extent to which a case is likely to turn on _
credibility determinations, and;
6. whether the case will require testimony from expert
witnesses.
Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002) (citing
Tabron, 6 F.3d at 155—57)(the “Tabron factors”). In addition, the
Court should consider practical constraints before appointing
counsel: “the ever»growing number of prisoner civil rights
actions filed each year in the federal courts; the lack of
funding to pay appointed counsel; and the limited supply of
competent lawyers who are willing to undertake such
representation.” Tabron, 6 F.3d at 157.
The Court concludes that the appointment of counsel is not
warranted at this time. The Court assumes, solely for the
purposes of deciding this Motion, that Plaintiff’s claims have
arguable merit, and will therefore consider the Tabron factors.
Two of the Tabron factors favor appointment of counsel. First,
Mr. Taylor is unable to afford legal counsel as he proceeds in
forma pauperis, and he has unsuccessfully sought pro bono legal
assistance. Second, this case may involve credibility
3

Case1:O7-cv-00244-JJF Document 34 Filed O2/06/2008 Page40f4
l
determinations of the parties. -
However, the majority of the Tabron factors do not support j
appointment of counsel. Mr. Taylor has demonstrated an ability
to present his own case: he has made several filings on his own,
thus demonstrating some knowledge of the legal system, and these E
filings have been coherent and comprehensible. Further, the
allegations in Mr. Taylor’s Complaint do not appear to involve
complex legal issues. Because the Court finds it unlikely that
complicated discovery will be necessary, Mr. Taylor should also
be able to pursue an adequate factual investigation despite his
confinement. Additionally, it is unlikely that expert testimony
will be required in this action. Accordingly, the Court
exercises its discretion and concludes that the overall weight of
the factors do not favor appointment of counsel at this time.
QEQQ
NOW THEREFORE, IT IS HEREBY ORDERED that Plaintiff’s Motion For
Appointment Of Counsel (D.I. 21) is DENIED. i
{
February é’ , 2008 _
“!w.“¤)‘lIi‘2¢4 cnlg Q
. W V . ,
ITED STATES DISTRICT JUDGE
R
I