Summary
declining to appoint counsel for indigent plaintiff in a civil suit where plaintiff did not present "special and compelling circumstances" to overcome the State's strong countervailing interest in maintaining order and discipline in its penal institutions
Summary of this case from Boyer v. Dep't of Corr.Opinion
C. A. NO. 01C-05-015
Submitted: April 5, 2002
Decided: April 5, 2002
Upon Plaintiff's Motion for Appointment of Counsel. Denied.
Reginald Jenkins, Smyrna, Delaware, Pro Se.
ORDER
This 5th day of April 2002, after consideration of the Motion for Appointment of Counsel submitted by Reginald Jenkins ("plaintiff"), it appears to the Court that:
Facts
1. Plaintiff filed his complaint in this action on May 8, 2001. Plaintiff alleges his civil rights were violated as a result of an arrest made with improper force. He claims physical injury stemming from police officer actions and from the use of a K-9 to subdue him. Plaintiff makes other various claims for which he seeks damages. Some of these claims are questionable in that they do not appear to state causes of action for which the Court may grant relief.
2. On November 9, 2001, this Court informed plaintiff that his application to proceed informa pauperis had been approved; however, because his pleadings were insufficient under the Superior Court Rules of Civil Procedure, the action was stayed for thirty days to allow the plaintiff to comply. Specifically, the Court required the plaintiff to familiarize himself with Rules 5, 7, 8, 9 and 11. These rules specifically deal with general rules for pleadings. The thirty-day time period was later extended.
3. On January 15, 2002, this Court granted plaintiff's first Motion for Leave to Amend The Complaint, and granted thirty days to submit the proper summons and praecipes. Neither an Amended Complaint, nor these other documents were filed.
4. Instead of filing an Amended Complaint, on February 12, 2002, the plaintiff filed another Motion to Amend. This averred substantive arguments regarding a new cause of action for punitive damages. An Amended Complaint was not filed.
5. Meanwhile, on January 31, 2002, the Plaintiff filed a Motion for Appointment of Counsel in this civil matter. In support thereof, plaintiff avers that he is incarcerated and unskilled in the law. In addition, the State prison severely limits his access to the law library. For these reasons plaintiff believes that appointment of counsel would serve "the best interests of justice."
6. In February and March, plaintiff filed discovery motions with the Court. He filed a Motion to Compel at the same time he filed his first set of interrogatories. He then filed a Motion for Discovery and Inspection.
7. The Court scheduled a status conference for April 5, 2002 to address the procedural anomalies. Plaintiff's procedural mistakes are interrelated with his Motion for the Appointment of Counsel in that plaintiff alleges he is unskilled and unable to represent himself. This is the Court's decision on plaintiff's Motion for Appointment of Counsel.
Appointment of Counsel
8. Plaintiff cites Lindh v. O'Hara presumably for the proposition that attorneys have a "duty to defend the poor at the call of the Court [because this] is a professional obligation incidental to the privilege of practicing law."
325 A.2d 84, 94 (Del. 1974).
Id.
9. Lindh is inapposite here, however, since the instant case is a civil matter. The right of indigent defendants to counsel in criminal matters is well established under the Sixth Amendment. Conversely, the Sixth Amendment guarantee of counsel has not been extended to civil matters. Lindh dealt only with the lawyer's duty to represent indigent defendants in criminal cases.
10. Plaintiff's right to appointed counsel in this case, if any, allegedly arises under the Fourteenth Amendment's due process clause. Accordingly, plaintiff submits the federal case of Gordon v. Leeke to support this premise. In 1978, the Court of Appeals in Gordon held that "[i]f it is apparent to the district court that a pro se litigant has a colorable claim but lacks he capacity to present it, the district court should appoint counsel to assist him." Gordon does not capture the analysis required of the Court in order to appoint counsel.
574 F.2d 1147, 1152-53 (4th Cir., S.C., 1978).
Id.
11. In 1981, the United States Supreme Court, in Lassiter v. Department of Social Serv., held in pertinent part that in civil litigation "a presumption exists against requiring appointed counsel when an unsuccessful litigant cannot be deprived of his personal liberty." Under Lassiter, "when an indigent civil litigant could not possibly be deprived of his personal liberty as a direct result of the litigation, the Constitution does not require, in the absence of special and compelling circumstances, the appointment of counsel." Special and compelling circumstances have been found, for example, in proceedings to terminate parental rights.
452 U.S. 18 (1981).
William L. Dick, Jr., Note, The Right to Appointed Counsel for Indigent Civil Litigants: The Demands of Due Process, 30 Wm. Mary L. Rev. 627, 628 (1989).
Id.
See e.g. Lassiter, supra.
12. To determine if special and compelling circumstances existed, the Lassiter Court balanced the elements of due process set forth in Mathews v. Eldridge. The Court balanced (1) the private interests at stake, (2) the government's interest and (3) the risk that the procedure without counsel would lead to erroneous results. Balancing these factors in this parental rights case, the Lassiter Court concluded that the government's interest was high in the correct outcome of parental termination proceedings; (2) the parents' interest in the outcome was also high; and (3) the complexity of the proceedings and the inability of the parent to present a proper case without counsel made it unacceptably likely that the outcome of the proceedings could be erroneous.
424 U.S. 319 (1976).
Lassiter, supra.
13. In Delaware, these elements have also been utilized when considering the appointment of counsel to indigent prisoners in civil rights cases. In Vick v. Dept. of Correction, for example, a prisoner brought a civil rights action alleging that the forcible removal of religious items from his person resulted in a violation of his constitutional rights.
Vick v. Dept. of Correction, 1986 WL 8003 at *2 (Del.Super.Ct.) (citations omitted) (nothing that although "it is evident that this Court has seldom appointed counsel for prisoners in civil cases, reference to case-law in this jurisdiction and elsewhere nonetheless demonstrates a recognition of the existence of this power"); see also Johnson v. State, 442 A.2d 1362 (Del. 1982).
1986 WL 8003.
14. As to element (1), the court considered that the State had a "strong countervailing interest in maintaining order and discipline in its penal institutions."
Id. at *3 (citing Johnson v. Anderson, 370 F. Supp. 1373 (D.Del. 1974)).
15. Regarding element (2), the court found that the prisoner had an important interest in his constitutional right to "[m]eaningful access to the courts [which] has generally been interpreted as involving either access to an adequate law library or legal assistance in the preparation of complaints, appeals, petitions, etc., though the State is vested with discretion to select the method by which to implement this constitutional guarantee." Here, the court did not find that the facts showed that "meaningful access" was being denied. It said that a mere "allegation that the prison library is only accessible on a very limited basis, without greater specificity, is insufficient to defeat the State's strong countervailing interest" in maintaining order in the prison.
Id. at *1.
Id. at *3.
16. Finally, element (3), the complexity of the matter and risk of a wrong outcome, was discussed. The Court "disagree[d] with petitioner's claim that the complexity of the issues . . . merit[ed] the appointment of counsel." Rather, it found that "even though his chance of success may be diminished without the assistance of counsel, it cannot be said that the State has denied him `meaningful access" to the Courts. Moreover, though the prisoner in Vick may have been "correct in asserting that the law materials available in the prison Library are very limited, his extensive citation of both state and federal statutes and case law tends to belie this claim . . . ."
Id.
Id.
17. Applying Lassiter and Mathews in the case sub judice, it does not appear that special and compelling circumstances have been presented which would overcome the States' strong countervailing interest in maintaining order and discipline in its penal institutions. The Vick's analysis is analogous in the instant case where the interest of the plaintiff (i.e. meaningful access) has only allegedly been violated by mere assertions of limited access with no factual explanation. Furthermore, the Court notes that there has been no showing of plaintiff's efforts to retain private counsel in this matter. Because attorney's fees may be awarded in successful § 1983 actions, a claim with merit may be of interest to various members of the Delaware bar with no cost.
WHEREFORE, plaintiff's Motion for Appointment of Counsel is denied. IT IS SO ORDERED.