Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00239-JJF

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., ) ) Plaintiff, ) ) v. ) ) WARDEN RAPHAEL WILLIAMS, et al., ) ) Defendants. )

Civil Action No. 07-239-JJF Jury Trial Requested

STATE DEFENDANTS' RESPONSE IN OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL [RE: D.I. 49] COMES NOW, State Defendants Raphael Williams, Patrick Sheets and Jim Welch (the "State Defendants"), by and through their undersigned counsel, and hereby respond in opposition (the "Response") to Plaintiff's Motion for Appointment of Counsel (the "Motion to Appoint") (D.I. 49). In support of the Response, the State Defendants state as follows: 1. Plaintiff Richard E. Clark, Jr. ("Clark" or "Plaintiff") is an inmate

presently incarcerated at the Howard R. Young Correctional Institution ("HRYCI") in Wilmington, Delaware. Clark is appearing pro se in this matter with leave to proceed in forma pauperis. 2. On May 2, 2007, Clark filed a Complaint pursuant to 42 U.S.C. § 1983

against the State Defendants, as well as various medical defendants, alleging, inter alia, that the defendants were violating his Eighth Amendment rights. (D.I. 2). 3. Less than two months after he filed his Complaint, Clark filed an

Amended Complaint adding two defendants to the action (D.I. 8). Clark filed a Second

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Amended Complaint adding further allegations against the defendants on July 31, 2007. (D.I. 11). 4. On October 12, 2007, Clark filed a Motion for a Temporary Restraining

Order and a Preliminary Injunction (the "Motion for Preliminary Injunction") alleging that the Defendants were retaliating against him for filing his lawsuit. (D.I. 14). The State Defendants filed an opposition to the Motion for Preliminary Injunction proving that the defendants were not retaliating against Clark. (D.I. 28). The Court agreed with the State Defendants and denied the Motion for Preliminary Injunction. (D.I. 31). 5. Since the denial of his Motion for Preliminary Injunction, Clark has

propounded discovery requests on both the State Defendants and the medical defendants. (D.I. 39, 50). 6. On January 29, 2008, Clark filed the Motion to Appoint. (D.I. 49). In his

Motion to Appoint, Clark contends that he should receive counsel because he is incarcerated and unable to afford counsel, the case is complex, he has a ninth grade education, and he is "participating in a program which is considered a therapeutic community isolated from the rest of the prison population and free time for access to the law library is limited." Motion to Appoint at ¶ 1-4. Plaintiff offers no specific reasons or special circumstances for why appointment of counsel is necessary in his case. Therefore, the Motion to Appoint should be denied. 7. The Third Circuit holds that pro se litigants proceeding in forma pauperis

have no constitutional or statutory right to appointed counsel. Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997). Rather, the appointment of counsel is left within the court's discretion. Parham, 126 F.3d at 457; Tabron v. Grace, 6 F.3d 147, 157-58 (3d

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Cir. 1993). A court usually grants a request for appointment of counsel only "`upon a showing of special circumstances indicating a likelihood of substantial prejudice to [the litigant] resulting ... from his probable inability without such assistance to present the facts and legal issues to the court in a complex, arguably meritorious case.'" Daniels v. Correctional Medical Services, Inc., 380 F.Supp.2d 379, 384 (D. Del. 2005) (quoting Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984)). 8. In determining whether to appoint counsel, a court must make a

preliminary determination about the merits of a plaintiff's case. Parham, 126 F.3d at 457. If the court determines that the plaintiff's claims have some merit, then the court should consider several additional factors including: (1) the plaintiff's ability to present his own case; (2) the complexity of the legal issues; (3) the degree to which factual investigation is necessary and the ability of the plaintiff to pursue such investigation; (4) the amount a case is likely to turn on credibility determinations; (5) the need for expert testimony; and (6) whether the plaintiff can attain and afford counsel on his own behalf. Id. (citing Tabron, 6 F.3d at 155-56, 157 n.5) (the "Tabron factors"). 9. In addition to considering the Tabron factors, "courts should exercise care

in appointing counsel because volunteer lawyer time is a precious commodity and should not be wasted on frivolous cases." Parham, 126 F.3d at 458. Considering all of the Tabron factors, Clark does not require appointed counsel at this time. 10. First, Clark has demonstrated an ability to present his own case. He has

filed a Complaint and two Amended Complaints as well as a Motion for Preliminary Injunction. In addition Clark has already begun to utilize the discovery process by propounding discovery requests on both the State and medical defendants. Thus, despite

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his assertion that he has limited access to resources, Clark is clearly able to utilize the tools of discovery, garner facts to support his case and present his claims to this Court. 11. Second, the allegations in this case are not of such a complex nature that

representation by counsel is necessary. Clark claims that he has contracted Hepatitis C and that the defendants are being deliberately indifferent to his medical needs. Such claims are not complex and can likely be resolved through the discovery process. 12. Third, although some factual investigation is required, most of the facts

are within the Plaintiff's knowledge. Further, to the extent Plaintiff needs to conduct any factual investigation, the Plaintiff may continue to utilize the tools of discovery. Thus Clark will have ample opportunity to fully investigate any factual issues. Finally, expert testimony does not appear necessary at this time. 13. Clark's Motion to Appoint fails to allege any special circumstances that

require appointment of counsel. Therefore, in light of the Tabron factors and the facts of this case, Clark does not need or require the appointment of legal counsel at this time. WHEREFORE, the State Defendants respectfully request that this Honorable Court deny Plaintiff's Motion for Appointment of Counsel. DEPARTMENT OF JUSTICE STATE OF DELAWARE /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 Attorney for the State Defendants

Dated: February 8, 2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE RICHARD E. CLARK, JR., ) ) Plaintiff, ) ) v. ) ) WARDEN RAPHAEL WILLIAMS, et al., ) ) Defendants. )

Civil Action No. 07-239-JJF Jury Trial Requested

ORDER Upon the Plaintiff's Motion for Appointment of Counsel (D.I. 49) and State Defendants' Response in Opposition to Plaintiff's Motion for Appointment of Counsel; and it appearing that good and sufficient notice of Plaintiff's Motion and State Defendants' Response has been given; and after due deliberation thereon: IT IS HEREBY ORDERED that Plaintiff's Motion for Appointment of Counsel is DENIED. SO ORDERED this _________ day of ______________, 2008. ____________________________________ The Honorable Joseph J. Farnan United States District Court Judge

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CERTIFICATE OF SERVICE
I, Erika Y. Tross, Esq., hereby certify that on February 8, 2008, I caused a true and correct copy of the attached State Defendants' Response in Opposition to Plaintiff's Motion for Appointment of Counsel [Re: individual in the form and manner indicated: NAME AND ADDRESS OF RECIPIENT(S): Inmate Richard E. Clark Jr. SBI # 477726 Howard R. Young Correctional Institution P.O. Box 9279 Wilmington, DE 19809 MANNER OF DELIVERY: One true copy by facsimile transmission to each recipient Two true copies by first class mail, postage prepaid, to each recipient Two true copies by Federal Express Two true copies by hand delivery to each recipient /s/ Erika Y. Tross Erika Y. Tross (#4506) Deputy Attorney General Delaware Department of Justice Carvel State Office Building 820 N. French Street, 6th Floor Wilmington, DE 19801 302-577-8400 D.I. 49] to be served on the following