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

Case 1 :04-cv-00863-Gl\/IS Document 16 Filed 12/20/2005 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JOHN GARRETT, )
Plaintiff, g
v. g Civil Action No. O4-863-GMS
DR. ALIE, ;
Defendant. g
MEMORANDUM ORDER
Plaintiff, John Garrett ("Garrett"), is a pro se litigant currently incarcerated at the
Delaware Correctional Center ("DCC”), Smyma, Delaware. Pending before the Court are
Plaintiffs Motion for Appointment of Counsel (D.I. 12) and "Motion for Summary Judgment" _,
(D.I. 15), which the Court construes as a Motion for Entry of Default pursuant to Fed. R. Civ. P.
55(a).
Plaintiff alleges that Defendant, Dr. Alie (“Dr. Alie") violated his rights under the Eighth
Amendment of the United States Constitution when she was deliberately indifferent to a serious 1
medical need in the treatment of his injured finger.
I. MOTION FOR APPOINTMENT OF COUNSEL i
Plaintiff moves for appointment of counsel on the basis that he is indigent and he is not
schooled in the law. He indicates there will be expert testimony at trial, and as a pro se litigant
he will be at a considerable disadvantage. (D.I. 12)
A plaintiff has no constitutional or statutory right to the appointment of counsel in a civil
case. See Parham v. Johnson, 126 F.3d 454, 456-57 (3d Cir. 1997); Tabron v. Grace, 6 F.3d
147, 153-54 (3d Cir. 1993). Under certain circumstances, the Court may in its discretion appoint

Case 1:04-cv-00863-G|\/IS Document 16 Filed 12/20/2005 Page 2 of 3
an attorney to represent an indigent civil litigant. See 28 U.S.C. § l9l5(e)(1). In evaluating a
motion for appointment of counsel filed by a pro se plaintiff, the Court must examine the merits
of a plaintiff’ s claim to determine whether it has some arguable merit in fact and law. See
Parham, 126 F.3d at 457 (citing Tabron, 6 F.3d at 157). Only if the Court is satisfied that the
claim is factually and legally meritorious, should it then examine the following factors: (1) the
plaintiffs ability to present his own case; (3) the complexity of the legal issues; (3) the
extensiveness of the factual investigation necessary to effectively litigate the case and the
plaintiff’s ability to pursue such an investigation; (4) the degree to which the case may tum on
credibility determinations; (5) whether the testimony of expert witnesses will be necessary; and
(6) whether the plaintiff can attain and afford counsel on his own behalf. See Parham, 126 F.3d
at 457-58 (citing Tabrorz, 6 F.3d at 155-56, 157 n.5). This list, of course, is illustrative and, by
no means, exhaustive. See ial at 458.
Although Garrett’s claim is not frivolous within the meaning of 28 U.S.C. §
1915(e)(2)(B) and §1915A(b)(1), he does not meets the remaining factors warranting
appointment of counsel. Garrett has presented his case in a clear and concise manner. It appears
from the allegations and the record before the Court that he does not need assistance gathering
facts to support his claims. Additionally, the Court finds that the issues, as currently presented,
are not legally or factually complex, and while there may be some medical testimony, it does not
appear that the case may turn on credibility determinations or on the testimony of expert
witnesses. Consequently, the Court declines to appoint counsel at this stage in the litigation.
Therefore, Garrett’s Motion for Appointment of Counsel is denied.
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Case 1:04-cv-00863-Gl\/IS Document 16 Filed 12/20/2005 Page 3 of 3
II. MOTION FOR ENTRY OF DEFAULT
Garrett filed his Motion for Entry of Default on November 25, 2005. He notes that Dr.
. . . l
Alie signed a waiver of servrce of summons and rt was filed w1th the Court on January 25, 2005. l
(D.I. ll) Dr. Alie was required to file her answer by March 28, 2005. (D.I. 14) On November 3,
2005, the Court entered an order for Dr. Alie to answer or otherwise respond to the complaint
within five days from the date of the order. Id T0 date, the Court has not received the Dr. Alie’s
answer to the complaint. Plaintiff requests judgment in his favor upon all claims raised. (D.I.
15).
"When a party against whom a judgment for affirmative relief has failed to plead or
otherwise defend as provided by these rules and that fact is made to appear by affidavit or
otherwise, the clerk shall enter the party’s default." Fed. R. Civ. P. 55(a). It is clear from the
record before the Court that the Dr. Alie has "failed toplead or otherwise defend" against the
complaint as provided by the Federal Rules of Civil Procedure. Therefore, the Court grants
Garrett’s motion for entry of default.
NOW THEREFORE, THIS @gdLay of December, 2005, IT IS HEREBY ORDERED
that:
1. Plaintiff"s motion for appointment of counsel (D.I. l 1) is DENIED.
2. Plaintiff’s motion for entry of default (D.I. 15) is GRANTED. The Clerk of the Court
is directed to enter default against the Defendant pursuant to Fed. R. Civ. P. 55(a).
3. The Clerk of the Court shall mail a copy of the Court’s Memorandum Order to all
parties. q·j i vqwj J
F I L Q UN ES IST f ` ‘·
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