Free Answering Brief in Opposition - District Court of Delaware - Delaware

Case 1:04-cv-00175-JJF Document 140-4 Filed O9/26/2007. Page 1 of 4
EXHIBIT "C" ·

Case 1:04-cv-00175-JJF Document 140-4 Filed 09/26/2007 Page 2 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOSEPH LAWRENCE CURRY, )
Plaintiff, g
v. g Civil Action No. 04-175-KAJ
GREGORY HOPKINS, §
Defendant. ; I
I
MEMORANDUM ORDER
I. INTRODUCTION
Before me is a Motion for Representation by Counsel brought by Joseph L. Curry
("Curry"), a pro se litigant proceeding in forma pauperis. (Docket item ["D.l."] 11; the
"Motlon") Curry is incarcerated at the Delaware Correctional Center ("DCC") in Smyrna,
Delaware. Curry’s support for his Motion includes allegations that he is denied
adequate access to legal resources to adequately prepare his case. ( D.l. 29 at 1-2;
D.l. 68 at 2).) Because access to legal resources is one of several factors to be
considered in determining whether the court should request counsel for a civil lltigant, I
reserved decision on Curry’s motion pending receipt of information regarding Curry’s
access to legal resources. Specifically, I requested that the Slate of Delaware respond
as amicus curiae to Curry's allegations that prison policies and conditions are denying
him access to the courts. (D.l. 64 at 5.)
For the reasons that follow, the Motion is denied.

Case 1:04-cv-00175-JJF Document 140-4 Filed 09/26/2007 Page 3 of 4
ll. BACKGROUND A I I I
Curry filed a complaint under 42 U.S.C. § 1983, alleging violations of his civil
rights stemming from a January 13, 2004 incident with the Dover Police Department.
(D.l. 2 at 3.) Curry has repeatedly requested the asslstanc e of counsel, since tiling his
complaint. (D.l. 11; D.l. 29; D.l. 53; 54.) In support of his requests, Curry alleges a
lack of access to legal resources. (D.l.—29 at 1-2.) l construed these allegations as
implicating Cuny’s federally protected right of access to the courts (D.l. 64 at 3), and
D solicited a response from the Attorney General of the State of Delaware, addressing V
I Curry’s allegations (D.l. 64 at 5).
The Attorney General responded as amicus curiae (D.l. 65; D.l. 66) and provided
an affidavit of the Legal Services Administrator at DCC (D.l. 66, Ex. 1). The affidavit
· stated that Curry visited the institution’s law library 99 times between February 2004
_ and May 2005, was provided at least 788 photocopied pages of legal materials, and 1
received assistance from prisoner paralegals on eight separate occasions. (D.l. 66, Ex. `
1 at 2.) Curry, however, continues to assert that he has inadequate access to legal
resources. (D.l. 68 at 2.) _
lll. DlSCUSSION `
· When considering a motion for representation by counsel by an indigent pro se
litigant, district courts should consider several factors that _bear on the need for court
requested counsel. See Tabron v. Grace, 6 F.3d 147, 155-6 (3d Cir. 1993). These
factors include the plaintiffs ability to present his or her case, the complexity of the legal _
issues involved, the degree of factual investigation required, the extent and complexity
2

Case 1:04-cv-00175-JJF Document 140-4 Filed 09/26/2007 Page 4 of 4
of discovery, and the impact on the case of credibility determinations or expert
testimony. See fd.
While legal complexities may arise in unexpected places, there should be none
in this case. Curry’s claim of a civil rights violation involves a simple legal theory based
on an allegation of an assault by a police officer. Furthermore, there is no indication
that the assistance of counsel is necessary to conduct factual investigation, as the
allegations stem from a single incident involving Curry and the defendant. Similarly, the
straightforward nature of Currys complaint does not require the assistance of counsel
to perform adroit witness examinations addressing witness credibility or expert
testimony.
Concern over Currys access to legal resources has been resolved by the
Attorney Generals amicus curiae brief, which rebuts any implication that Curry has
been denied access to legal materials or the courts. The data provided by the DCC law
library administrator show that Curry has visited the law library nearly 100 times since
February 2004 and received assistance from prisoner paralegals on eight separate
occasions. Additionally, Curry has received over 750 pages of legal materials free of
charge, indicating that he has adequate access to legal materials.
Curry has demonstrated through his papers and pleadings that he is capable of
representing himself. l—le has successfully participated in discovery and
teleconferences, conducted investigations, and filed papers on his own behalf. l-lis
papers reference the Federal Rules of Civil Procedure, statutes, legal precedent, and
3

Case 1:04-cv-00175-JJF

Document 140-4

Filed 09/26/2007

Page 1 of 4

Case 1:04-cv-00175-JJF

Document 140-4

Filed 09/26/2007

Page 2 of 4

Case 1:04-cv-00175-JJF

Document 140-4

Filed 09/26/2007

Page 3 of 4

Case 1:04-cv-00175-JJF

Document 140-4

Filed 09/26/2007

Page 4 of 4