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

Case 1 :06-cv-00001-GIVIS I Document 74 Filed 09/24/2007 Page 1 of 4
I IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES W. RILEY, )
Plaintiff, )
v. j Civ. Action No. 06-01-GMS
STANLEY TAYLOR, et al., )
Defendants. j
ORDER
ji Lx
At Wilmington this f}-‘fday of , 2007, having considered the pending
motions of the plaintiff, James W. Riley ("Riley");
IT IS ORDERED that;
Riley’s motion for appointment of counsel (D.I. 53) is denied without prejudice. Apro
se litigant proceeding informa paaperis has no constitutional or statutory right to representation
by counsel. See Ray v. Robinson, 640 F.2d 474, 477 (3d Cir. 1981); Parham v. Johnson, 126
F.3d 454, 456-57 (3d Cir. 1997). It is within the court’s discretion to seek representation by
counsel for plaintiff, and this effort is made only "upon a showing of special circumstances
indicating the likelihood of substantial prejudice to [plaintiff] resulting . . . from [plaintiffs]
probable inability without such assistance to present the facts and legal issues to the court in a
complex but arguably meritorious case." Smith—Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984);
accord Tabron v. Grace, 6 F.3d 147, 155 (3d Cir. 1993) (representation by counsel may be
appropriate under certain circumstances, after a finding that a plaintiffs claim has arguable merit
in fact and law).
After passing this threshold inquiry, the court should consider a number of factors when

Case 1:06-cv—00001-Gl\/IS Document 74 Filed 09/24/2007 Page 2 of 4
assessing a request for counsel, including:
(l) the plaintiffs 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 plaintiffs capacity
to retain counsel on his 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.
Tabron, 6 F.3d at l55-57; accord Parham, 126 F.3d at 457; Montgomery v. Pinchak, 294 F.3d
492, 499 (3d Cir. 2002).
ln his motion for appointment of counsel, Riley seeks appointed counsel to assist him in
the discovery process and suggests the name of an attorney for appointment. Upon consideration
of the record, the court is not persuaded that appointment of counsel is warranted at this time. As
evidence by the court docket, Riley has ably pursued this litigation. Indeed, he has filed
discovery requests, filed responses to dispositive motions, and notices of appeals. Moreover,
Riley is no stranger to litigation having filed many civil cases in this district court. It is evident
from his filings that Riley possesses the ability to adequately pursue his claims.
Riley’s motion for trial (D.I. 53) is denied. Riley asks the court to set a trial date and
enter a scheduling and discovery order. The court’s normal procedure is to enter a scheduling
order which contains discovery deadlines and dispositive motion deadlines. This order is
normally entered when all parties have answered. Additionally, the court will set a trial date if,
and when, it becomes necessary.
Riley’s motion for funds to hire medical examiner and expert witness for trial (D.l. 56) is
denied. Rule 706 of the Federal Rules of Evidence affords the trial judge broad discretion to
appoint an independent expert answerable to the court, whether sua sporzte or on the motion of a
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Case 1:06-cv—00001-Gl\/IS Document 74 Filed 09/24/2007 Page 3 of 4
party. "The most important factor in favor of appointing an expert is that the case involves a
complex or esoteric subject beyond the trier-of-fact’s ability to adequately understand without
expert assistance? Ford v. Mercer County Corr. Ctr., 171 Fed. Appx. 416, 421 (3d Cir. 2006)
(citation omitted).
Riley seeks an independent medical examination to establish defendants’ liability and to
provide expert testimony. Riley’s medical issues, however, are not so complex as to require an
independent court-appointed expert. Nor are his medical claims beyond a lay person’s grasp.
Riley’s motion to amend the complaint (D.I. 63) is granted. "After amending once or
after an answer has been filed, the plaintiff may amend only with leave of the court or the written
consent ofthe opposing party, but ‘leave shall be freely given when justice so requires."’ Shane
v. Faaver, 213 F.3d 113, 115 (3d Cir. 2000) (quoting Fed. R. Civ. P. 15(a)). The Third Circuit
has adopted a liberal approach to the amendment of pleadings to ensure that "a particular claim
will be decided on the merits rather than on technicalities." Dole v. Arco Chemical Co., 921 F.2d
484, 486-87 (3d Cir. 1990) (citations omitted). Amendment, however, is not automatic. See
Dover Steel C0., Inc. v. Hary"ora'Acciclent and Inclem., 151 F.R.D. 570, 574 (ED. Pa. 1993).
Leave to amend should be granted absent a showing of "undue delay, bad faith or dilatory motive
on the part of the movant, repeated failure to cure deficiencies by amendments previously
allowed, undue prejudice to the opposing party by virtue of the allowance of the amendment,
futility of amendment, etc." Foman v. Davis, 371 U.S. 178, 182 (1962); See also Oran v.
Stajfora', 226 F.3d 275, 291 (3d Cir. 2000).
The defendants did not object to the motion. Further, the court finds that the proposed
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Case 1:06-cv—00001-G|\/IS Document 74 Filed 09/24/2007 Page 4 of 4
amendment will n0t cause undue delay, bad faith, dilatory motive, prejudice 0r futility.
UNI? l§D S "XTES lélSTRIéT JUDG@
F I L E D
Eli? 2 QT?-T
us. D|sTnicT COURT
DISTRICT OF DELAWARE
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