Free Response to Motion - District Court of Delaware - Delaware

Case 1:07-cv-00031-GMS

Document 119

Filed 05/22/2008

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, et al., Defendants.

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C. A. No. 07-31-GMS JURY TRIAL REQUESTED

STATE DEFENDANT'S OPPOSITION TO PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL Defendant Stan Taylor ("Defendant"), by and through undersigned counsel, hereby opposes Plaintiff's Motion for Appointment of Counsel. (D.I.112). In support of his position, Defendant states the following: 1. On or about January 16, 2007, Plaintiff William J. Webb, Jr. ("Webb"), an

inmate incarcerated at the Delaware Correctional Center in Smyrna, Delaware ("DCC") filed a Complaint pursuant to 42 U.S.C. §1983 alleging constitutional violations ijn connection with his prison medical treatment. Webb was granted leave to proceed in forma pauperis on or about February 6, 2007. (D.I.5). 2. On or about May 8, 2008, Webb filed a Motion for Appointment of

Counsel with an accompanying Declaration and Memorandum in support thereof. (D.I.112-114) 3. In support of his motion, Webb alleges that he is unable to afford counsel,

the issues are complex, expert testimony is necessary and he has limited access to the law library at DCC. Id.

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4.

Pro se litigants proceeding in forma pauperis have no constitutional or

statutory right to appointed counsel. (See Smith Bey v. Petsock, 741 F. 2d 22, 25 (3d Cir. 1984)). It is solely within the Court's discretion to appoint counsel for the plaintiff; however, such an appointment is "usually only granted upon a showing of special circumstances indicating a likelihood of substantial prejudice to him resulting... from his probable inability without such assistance to present the facts and legal issues to the court in a complex, arguably meritorious case." Id at 26, accord, Pierce v. Vaughn, 1992 WL 210122 (E.D.Pa.); Robinson v. Barone, 1992 WL 236869 (E.D. Pa.). The factors

appropriately considered in deciding whether an appointment of counsel is warranted include the arguable merit of the plaintiff's claim, the plaintiff's ability to present his case, the difficulty of the particular issues, the degree to which factual investigation will be required and the plaintiff's ability to pursue such investigation, the likelihood that witnesses' credibility will be key issue, and the need for expert testimony. Tabron v. Grace, 6 F.3d 147, 155-56 (3d Cir. 1993), cert. denied, 114 S. Ct. 1306 (1994). 5. Webb, no stranger to the legal system, has a clear understanding of the

issues involved in this case and has proven himself quite capable in responding and addressing his claims in this Court. Contrary to Webb's assertions that the issues are complex, no complex issues have been presented in this case. Furthermore, as illustrated by the motions Webb has filed thus far, he has displayed a firm grasp of legal precepts in this case. In addition to a complaint that sufficiently articulates his claims, Webb has filed numerous motions containing pertinent case law and court rules. This not only demonstrates his legal knowledge, but also shows that this case is not so unusually complex as to require the assistance of counsel. In fact, Webb has shown great skill and

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ability to litigate this action pro se, through his filing of discovery motions and extensive pleadings, as well as adherence to court orders. Further, Webb fails to establish that without the appointment of counsel that he demonstrates any other "special circumstances indicating the likelihood of substantial prejudice" cited by the Court in Smith-Bey. Smith-Bey at 26. Defendant contends that Webb has shown that he is fully capable of litigating this lawsuit, making appointment of counsel unnecessary. This case is neither factually or legally complex, and therefore, court appointed counsel is not warranted. 6. While Webb pleads that his incarceration in the SHU limits his access to

the law library; however, records show that Webb does have sufficient access to the law library and legal materials. Attached is a copy of Webb's library use for the last two months including legal copies he requested in addition to photocopying requests. (See Exhibit 1). The record shows that Webb was not denied the materials he requires to file any documents with the court. While Webb's access to the law library may be "limited" due to his housing unit, he nevertheless has law library access which is reflected in the numerous motions Webb has filed with the Court throughout this litigation. 7. Moreover, at this point, Webb has simply made bold, unsupported

allegations against the Defendant. It is apparent that Webb is suing the Defendant based upon his supervisory responsibilities. As personal involvement in a constitutional

deprivation is a necessary prerequisite to liability, it is unlikely that Webb can mount a meritorious claim against the Defendant. warranted. WHEREFORE, Defendant respectfully requests that this Honorable Court deny Without more, the request for counsel is not

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Webb's Motion for Appointment of Counsel.

STATE OF DELAWARE DEPARTMENT OF JUSTICE /s/ Catherine Damavandi_____ Catherine Damavandi, ID#3823 Deputy Attorney General Department of Justice State of Delaware 820 North French Street, 6th Floor Wilmington, Delaware 19801 (302) 577-8400 Attorney for Defendant Stan Taylor

Dated: May 22, 2008

Case 1:07-cv-00031-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, et al., Defendants.

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C. A. No. 07-31-GMS JURY TRIAL REQUESTED

CERTIFICATE OF SERVICE I hereby certify that on May 22, 2008 I electronically filed State Defendant Stan Taylor's Opposition to Plaintiff's Motion for Appointment of Counsel with the Clerk of Court using CM/ECF, which will send notification to the following: Eileen M. Ford, Esq. [email protected] Megan Trocki Mantzavinos, Esq. [email protected] I further certify that on May 22, 2008, I caused the within document to be mailed to the following non-registered participant by United States Postal Service: William J. Webb, Jr., SBI#256056 Delaware Correctional Center 1181 Paddock Road Smyrna, DE 19977

/s/ Catherine Damavandi Deputy Attorney General, ID #3823 Department of Justice 820 N. French Street, 6th Floor Wilmington, DE 19801 (302) 577-8400 [email protected] Attorney for Defendant Stan Taylor

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Case 1:07-cv-00031-GMS

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE

WILLIAM JOSEPH WEBB, JR., Plaintiff, v. FIRST CORRECTIONAL MEDICAL, et al., Defendants.

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C. A. No. 07-31-GMS JURY TRIAL REQUESTED

ORDER

IT IS SO ORDERED, this ______ day of _____________, 2008, that Plaintiff=s Motion for Appointment of Counsel is hereby DENIED.

______________________________ Chief Judge Gregory M. Sleet