Free Order - District Court of Delaware - Delaware

Case 1:05-cv-00823-SLR—LPS Document 258 Filed 04/16/2008 Paget of3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
GEORGE A. JACKSON, et al., )
Plaintiffs, 3
v. g Civ. No. 05-823-SLR-LPS
STANLEY TAYLOR, etal., g
Defendants. g
O R D E R
At Wilmington this` grit/ay of April, 2008,
IT IS ORDERED that:
1. Plaintiffs request for appointment of independent expert is denied without
prejudice. (D.I. 165.) Rule 706 provides that the trial judge has broad discretion to
appoint an independent expert answerable to the court, whether sua sponte or on the
motion of a party. Ford v. Mercer County Corr. Ctr., 171 Fed. Appx. 416, 420 (3d Cir.
2006). The policy behind the rule is to promote the jury's factfinding ability. Ldg
(citations omitted). g Ledford v. Sullivan, 105 F.3d 354, 359-60 (7th Cir.1997) (jury
could comprehend whether pIaintiff’s medical needs were "serious" without the aid of a
court-appointed expert). At this stage of the proceedings it is not clear that expert
testimony is necessary.
2. Plaintiffs’ motion for appointment of counsel (D.I. 183) is denied without
prejudice. A pro se litigant proceeding in forma pauperis has no constitutional or
statutory right to representation by counsel. E 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

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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);
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).
3. After passing this threshold inquiry, the court should consider a number of
factors when assessing a request for counsel, including:
(1) 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
ofthe 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.
], 6 F.3d at 155-57; _, 126 F.3d at 457; Montgomery v. Pinchak,
294 F.3d 492, 499 (3d Cir. 2002).
4. Plaintiffs, all incarcerated individuals, move for appointed counsel on the
bases that there are numerous plaintiffs housed in different buildings throughout the
prison; they have limited access to the law library; the lead plaintiff George A. Jackson
("Jackson"), as a non—attorney, cannot represent the other plaintiffs; Jackson’s legal
materials were seized some time prior to June 22, 2007; additional discovery is
required; the case may require expert testimony; and the testimony will be in sharp
conflict.
5. It is evident from his filings that, to date, pIaintiffs' claims have been
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adequately pursued. Upon consideration of the record, the court is not persuaded that
appointment of counsel is warranted at this time. Plaintiffs have ably pursued this
litigation, and the court sees no special circumstances requiring the appointment of
counsel. Further motions for appointment of counsel shall be deemed denied without
prejudice to renew should any of plaintil‘fs' claim survive summary judgment.
UNITED STATES NIAGISTRATE JUDGE
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