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

Case 1:05-cv-00345-SLR Document 13 Filed 08/08/2006 Page 1 of 3
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
JAMES N. PATNAUDE, )
Plaintiff, )
v. ) Civ. No. 05-345-SLR
ATTORNEY GENERAL ALBERTO )
GONZALES and FEDERAL BUREAU )
OF INVESTIGATION , )
Defendants. )
O R D E R
At Wilmington this 'Y*`day of August, 2006, having reviewed
plaintiff’s motion for appointment of counsel and the papers
submitted in connection therewith;
IT IS ORDERED that said motion (D.I. 11) is denied without
prejudice to renew for the reasons that follow:
1. On May 31, 2005, plaintiff, proceeding pro se, filed
this employment discrimination suit and paid the $250 filing fee.
(D.I. 1) On March 13, 2006, the case was dismissed without
prejudice due to plaintiff’s failure to serve process within 120
days of filing the complaint. (D.I. 3) After providing a
detailed explanation and documentation, plaintiff’s motion to
reopen the case was granted. (D.I. 5) On July 11, 2006,
defendants moved to dismiss the complaint. (D.I. 6,7) In
response, plaintiff moved for appointment of “outside legal
counsel with experience in the particular area of law that [his]

Case 1:05-cv-00345-SLR Document 13 Filed 08/08/2006 Page 2 of 3
case addresses." (D.I. 11) He states that someone with the
Equal Employment Opportunity Unit of the Federal Bureau of
Investigation told him that, if he filed a civil suit in federal
court, counsel would be provided if he could demonstrate a
financial inability to pay for such services. To that end,
plaintiff attaches a summary of his savings and liabilities.
(LQ; at 1)
2. A pro se civil litigant, regardless of financial
ability, has no constitutional or statutory right to
representation by counsel. ggg Ray v. Robinson, 640 F.2d 474,
477 (3d Cir. 1981); Parham v. Johnson, 126 F.3d 454, 456-57 (3d
Cir. 1997). The “decision to appoint counsel may be made at any
point in the litigation, and may be made by a district court sua
sponte." Montgomery v. Pinchak, 294 F.3d 492, 499 (3d Cir. 2002).
It is within the court's discretion to seek representation by
counsel for plaintiff, but this effort is made only “upon a
showing of special circumstances indicating the likelihood of
substantial prejudice to [plaintiff] resulting. . .from
[plaintiff's] 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 plaintiff's claim
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Case 1:05-cv-00345-SLR Document 13 Filed 08/08/2006 Page 3 of 3
has arguable merit in fact and law). After passing this
threshold inquiry, the court should consider a number of factors
when assessing a request for counsel, including: (1) plaintiff's
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 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 at 499.
3. Plaintiff has demonstrated that he is able to
articulate the alleged facts clearly. To date, the papers he has
filed evidence his ability to understand and implement the
Federal Rules of Civil Procedure. Morever, because the court's
consideration of defendants' motion to dismiss will be a purely
legal analysis, plaintiff's alleged inability to formulate
opposition arguments will have no bearing on the review. Should
the case become progressively more complicated, however,
plaintiff may renew his motion for appointment of counsel.
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