Free Opinion - District Court of Delaware - Delaware

Case 1:08-cv-00312-JJF Document 11 Filed 07/O1/2008 Page 1 of 4
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF DELAWARE
SAMUEL BISHOP, :
Plaintiff, ;
v. Z Civ. Action No. O8—312—JJF
C/O QUIERRA WILLIAMS, et al., ;
Defendants. E
OPINION AND ORDER
I. BACKGROUND
Plaintiff, Samuel Bishop, a/k/a Iman R. Malik (“Plaintiff”),
a pro gg litigant who is presently incarcerated, filed this
action pursuant to 42 U.S.C. § 1983. His Motion For Leave To
Proceed In Forma Pauperis was denied on the basis that he had
three or more times in the past, while incarcerated, brought a
civil action or appeal in federal court that was dismissed
because it was frivolous, malicious, or failed to state a claim
upon which relief may be granted. (D.I. 5); §§§ 28 U.S.C. §
I9I5(g). Plaintiff moves for moves for reconsideration of the
entry of the “three strikes” Order. (D.I. 6.)
II. STANDARD OF REVIEW
The purpose of a motion for reconsideration is to “correct
manifest errors of law or fact or to present newly discovered
evidence.” Max’s Seafood Café v. Quinteros, 176 F.3d 669, 677
(3d Cir. 1999). Accordingly, a court may alter or amend its
judgment if the movant demonstrates at least one of the

Case 1:08-cv-00312-JJF Document 11 Filed 07/O1/2008 Page 2 of 4
following: 1) an intervening change in the controlling law; 2)
the availability of new evidence that was not available
previously; or (3) the need to correct a clear error of law or
fact or to prevent manifest injustice. fo.; Dasilva v. Esmor
Corr. Services, Inc., 167 Fed. Appx. 303 (3d Cir. Jan 27, 2006).
III. DISCUSSION
Plaintiff alleges in his Complaint that he was assaulted by
a fellow inmate on January 14, 2008 and that Defendants failed to
protect him from the assault. He was hospitalized for many days
following the assault. His Complaint was filed on May 22, 2008.
In reading his Motion, it appears that Plaintiff believes
the case has been dismissed for failure to state a claim. This
is incorrect. Plaintiff's case has not been dismissed but,
rather, the Court has denied him leave to proceed fo forma
pauperis, and Plaintiff is required to pay the filing fee. Nor
has the Court ruled that the Complaint fails to state a claim.
To the contrary, it does.
Regardless, because in the past Plaintiff has filed more
than three cases that were dismissed as frivolous, malicious, or
failed to state a claim upon which relief may be granted, he may
not file another civil action fo forma oauperis while
incarcerated unless he was in “imminent danger of serious
physical injury” at the time of the filing of his complaint. 28
U.S.C. § 1915(g); Abdul—Akbar v. McKelvie, 239 F.3d 307, 311 (3d
- 2 ..

Case 1:08-cv-00312-JJF Document 11 Filed 07/01/2008 Page 3 of 4
Cir. 2001). Plaintiff filed his Complaint on May 22, 2008, more
than four months after the January assault. To invoke the
“imminent danger" exception of § 1915(g), an “inmate must make
‘specific fact allegations of ongoing serious injury, or of a
pattern of misconduct evidencing the likelihood of imminent
serious physical injury.'” Johnson v. Warner, 200 Fed. Appx.
270, 272 (4“ Cir. 2006) (quoting Martin v. Shelton, 319 F.3d
1048, 1050 (8m Cir. 2003)). The Complaint does not allege such
conduct. Plaintiff has not demonstrated any of the grounds
necessary to warrant reconsideration and, therefore, the Court
will deny his Motion For Reconsideration.
IV. MOTION FOR APPOINTM NT OF COUNSEL
Plaintiff seeks appointed counsel. (D.I. 7.) A pro sg
litigant proceeding in fgrma pauperis has no constitutional or
statutory right to appointed counsel. gee Ray v. Robinson, 640
F.2d 474, 477 (3d Cir. 1981). It is within the Court’s
discretion to seek representation by counsel for Plaintiff “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
- 3 -

Case 1:08-cv-00312-JJF Document 11 Filed 07/01/2008 Page 4 of 4
circumstances, after a finding that a plaintiff’s claim has
arguable merit in fact and law).
This case is in its initial stages and service has not yet
been effected. It is this Court’s practice to dismiss without
prejudice motions for appointment of counsel filed prior to
service. Based upon the foregoing, Plaintiff’s request for
appointment counsel will be denied without prejudice, with leave
to refile following service of the Complaint.
V. CONCLUSION
NOW THEREFORE, IT IS HEREBY ORDERED that:
1. Plaintiff's Motion For Reconsideration is DENIED. (D.I.
6.) Plaintiff is given thirty (30) days from the date of this
Order to pay the $350.00 filing fee. If he does not pay the
filing fee within that time, the Complaint shall be dismissed
pursuant to 28 U.S.C. § l9l5(g).
2. Plaintiff’s Motion For Appointment Of Counsel is DENIED
without prejudice. (D.I. 7.)
;-1-Q W
DATE gv
.. 4 -

Case 1:08-cv-00312-JJF

Document 11

Filed 07/01/2008

Page 1 of 4

Case 1:08-cv-00312-JJF

Document 11

Filed 07/01/2008

Page 2 of 4

Case 1:08-cv-00312-JJF

Document 11

Filed 07/01/2008

Page 3 of 4

Case 1:08-cv-00312-JJF

Document 11

Filed 07/01/2008

Page 4 of 4