Opinion
C.A. No. S06C-08-024 (THG).
June 30, 2008.
Lawrence E. Benner, #FZ-2851, Frackville, PA.
Dear Mr. Benner:
I am writing regarding the above-captioned matter.
Your recently filed suit against numerous entities and persons alleges various claims arising from events occurring while you were held at Sussex Correctional Institution in 2006. In connection with that suit, you have filed a motion to proceed in forma pauperis and a motion for appointment of counsel pursuant to 28 U.S.C. § 1915(e)(1). You also have asked that the Court send you a copy of the front page of your complaint to provide to the prison authorities in connection with your request for your inmate account statements.
In 28 U.S.C. § 1915, the statutory provisions governing in forma pauperis proceedings in a federal court are set forth. That statute provides in pertinent part as follows:
(a)(1) Subject to subsection (b), any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that the person is entitled to redress.
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(e)(1) The court may request an attorney to represent any person unable to afford counsel.
First, I have enclosed herein a copy of that requested page. You must file with the Court information showing all account information for the 6-month period immediately preceding the filing of your complaint or for the entire time you have been incarcerated, whichever is less.
I turn to your motion to proceed in forma pauperis. You have not submitted it on the form which this Court requires. Enclosed herein please find the correct form. You will need to fill it out and have it notarized. You must submit the notarized affidavit and inmate account statements on or before July 31, 2008. If you do not meet that deadline, then your motion shall be denied and you will be required to submit the appropriate filing fees. If you provide the documentation in a timely manner, the Court will consider the motion at that time. It also will review the complaint pursuant to 10 Del. C. § 8803(b) and determine if any or all portions of the allegations in the complaint may proceed.
I now address your motion to appoint counsel. You seek appointment to counsel pursuant to a statute which applies to cases filed in federal court, not in a court of the State of Delaware. Thus, the statute you cite is of no authority to this Court. The law on appointment of counsel applicable in Delaware is set forth as follows in Deputy v. Dr. Conlan, 2008 Del. Super. LEXIS 60, *2 (Feb. 13, 2008):
The Superior Court has the "inherent authority to appoint counsel for an indigent prisoner in a civil suit." The Court will only appoint counsel if it is demonstrated that the prisoner does not have meaningful access to the courts by other alternatives. Meaningful access has been interpreted to mean "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." The State rarely appoints counsel to prisoners for civil claims. [Footnotes and citations omitted.]
At this time, you have not submitted sufficient information with your motion to allow this Court to consider your request. Thus, the motion is DENIED without prejudice. You may renew it and submit the required information.
Finally, I note that you have included a form which is captioned "DUTY TO AVOID UNNECESSARY COST OF SERVICE OF SUMMONS". The information contained in that document is not legally correct. I hereby ORDER that no such document containing this incorrect information will be sent to any of the defendants in this matter and should such be sent to them, the Court will impose sanctions against you.
In conclusion, I am forwarding you the enclosed front page of the complaint as well as the correct form of affidavit for a motion to proceed in forma pauperis, ordering that you file the correct affidavit and inmate account statements on or before July 31, 2008, denying your motion for appointment of counsel, and ordering that the form captioned "DUTY TO AVOID UNNECESSARY COSTS OF SERVICE OF SUMMONS" not be sent to any defendant in this matter.
IT IS SO ORDERED.