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

Case 1:06-cv—00437-SLR Document 18 Filed 11/21/2006 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
FRANK DISMORE, )
Plaintiff, )
v. ) Civ. No. 06-437-SLR
SEAFORD SCHOOL DISTRICT, )
Defendant. )
O R D E R
At Wilmington this 21st day of November, 2006, having
reviewed plaintiff's letter that has been construed as a request
for appointment of counsel (D.I. 16); and having reviewed
defendant's response thereto (D.I. 17);
IT IS ORDERED that said request (D.I. 16) is denied, for the
reasons that follow:
1. Plaintiff, a pro se litigant, has no constitutional or
statutory right to representation by counsel. Se; Ray v.
Robinson, 640 F.2d 474, 477 (3d Cir. 1981); Parham v. Johnson,
126 F.3d 454, 456-57 (3d Cir. 1997). While it is within the
court’s discretion to seek representation by counsel for
plaintiff, this effort is made only “upon a showing of special
circumstances indicating the likelihood of substantial prejudice
to [plaintiff] resulting . . . from [his] probable inability

Case 1:06-cv—00437-SLR Document 18 Filed 11/21/2006 Page 2 of 4
without such assistance to present the facts and legal issues to
the court in a complex but arguably meritorious case.” Smith-Bey
v. Petsock, 74 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 plaintiff's claim has arguable merit in fact and law).
2. If the court finds that plaintiff's claim has arguable
merit in fact and in law, the court should consider as well a
number of factors when assessing a request for counsel,
including: (1) plaintiff's ability to present his own case; (2)
the difficulty of the particular legal issues; (3) the degree to
which factual investigation will be necessary and the ability of
plaintiff to pursue investigation; (4) plaintiff's 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 155-57; accord Parham, 126 F.3d at 457; Montgomery v.
Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
3. In the present case, plaintiff has sued defendant
Seaford School District for the termination of his job as a
school bus driver, pursuant to the Americans with Disability
Act,42 U.S.C. §§ 12101—12117. Defendant has responded to the
suit by claiming that it never employed plaintiff; rather,
plaintiff was employed by an independent contractor (John Gundry)
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who entered into a contract to provide bus service for a certain
bus route. Although defendant notified Mr. Gundry that plaintiff
was not acceptable to it as a school bus driver based on
plaintiff's conduct, plaintiff's employment was terminated by Mr.
Gundry, not by defendant. There appears to be a discrete,
threshold legal question as to whether defendant can be held
liable under the ADA when it did not employ plaintiff.
4. If the court finds that defendant can be held liable
despite its never having been plaintiff's employer, discovery
would be appropriately directed to the factual issues of
plaintiff's disability and defendant’s knowledge of such, as well
as the circumstances surrounding the termination. Again, these
are discrete factual issues which are not of a complex nature.
5. The court finds that the litigation filed by plaintiff
is not complex and arguably has no merit in the law.
Consequently, the court will deny plaintiff's request for counsel
at this time, without prejudice to renew.
IT IS FURTHER ORDERED that, on or before January 31, 2007,
plaintiff shall respond to defendant’s outstanding discovery
requests and shall make himself available for his deposition. In
this regard, however, counsel for defendant shall renotice the
deposition for some date in January and make arrangements to take
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Case 1:06-cv-00437-SLR Document 18 Filed 11/21/2006 Page 4 of 4
the deposition in Seaford.1 NOTE: Having filed a lawsuit, it is
plaintiff's obligation to respond to reasonable discovery
requests by the defendant. Failure to do so can result in
dismissal of the case for plaintiff's failure to prosecute,
pursuant to D. Del. LR 41.1.
United Statgs District Judge
lAlthough the court will not ask a lawyer to volunteer his
or her time to represent plaintiff, certainly plaintiff may use
the next 60 days to find a lawyer willing to represent him in
this litigation.
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