IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STEPHEN M. PARSONS, )
) C.A. No. KlSC-lZ-OZZ NEP
Plaintif`f`, ) ln and f`or Kent County
v- )
)
RICHARD P. DUSHUTTLE, M.D., )
et al., )
)
Defendants. )
ORDER

Submitted: April ll, 2019
Decided: April 18, 2019
Upon consideration of` the Motion for Reconsideration f`or the Appointment of`
Counsel filed by Plaintiff` Stephen M. Parsons (hereinafter “Mr. Parsons”), the Court
finds that the motion is Without merit and is DENIED.
The facts of` the case are, briefly, as follows: Mr. Parsons has sued Dr. Richard
P. DuShuttle and Bayhealth Medical Center (hereinaf°ter the “Defendants”), alleging,
inter alia, that the Defendants committed medical malpractice after Dr. DuShuttle
allegedly installed a hip replacement device improperly and Mr. Parsons needed to
undergo a second surgery. Mr. Parsons has alleged damages in excess of $ l O0,000.00
due to “debilitating pain that Was suffered from the day of` surgery. . ., the improper
placement of` [sic] artificial hip Which caused the Plaintiff limited mobility and
confinement to a Wheelchair and the loss of` Wages. . . .”
Included With Mr. Parsons’s complaint Was an application to proceed in forma
pauperis. By Order dated March 8, 2019, this Court granted Mr. Parsons’s
application to proceed in forma pauperis pursuant to lO Del. C. § 8803(a), but denied

Parsons v. DuShuttle, M.D., et al.
C.A. No. K18C-12-022 NEP
April 17, 2019

his motion for appointment of counsel.l Mr. Parsons now seeks reconsideration of
the motion for appointment of counsel. ln support of his motion, Mr. Parsons has
attached several letters, reflecting unsuccessful attempts to obtain private counsel.
Mr. Parsons also argues that the three-pronged analysis from Matthews v. Eldridge2
weighs in favor of appointing him counsel, as his “meaningful access” to the Court
has been restricted, and because without the assistance of counsel, he will not be able
to obtain an affidavit of merit.

Although never cited in Mr. Parsons’s motion for reconsideration, Superior
Court Civil Rule 59(e) controls. A motion for reconsideration filed pursuant to
Superior Court Civil Rule 59(e) will only be granted if “the Court has overlooked a
controlling precedent or legal principles, or the Court has misapprehended the law or

facts such as would have changed the outcome of the underlying decision.”3 A

 

1 Additionally, the Court deferred the acceptance of Mr. Parsons’s complaint due to the absence
of an affidavit of merit, and allowed Mr. Parsons an additional 60 days from the date of the order
to file such an affidavit.

2 424 U.S. 319 (1976). In Matthews, the United States Supreme Court held: “More precisely, our
prior decisions indicate that identification of the specific dictates of due process generally
requires consideration of three distinct factors: First, the private interest that will be affected by
the official action; second, the risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government's interest, including the function involved and the fiscal and
administrative burdens that the additional or substitute procedural requirement would entail.” Id.
at 335.

3 Kennedy v. Invacare, Inc., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006) (citing Bd. of
Managers ofthe Del. Criminal Justice Info. Sys. v. Gannet Co., 2003 WL 1579170, at *1 (Del.
Super. Jan. 17, 2003)).

Parsons v. DuShuttle, .M.D., et al.
C.A. No. K18C-12-022 NEP
April 17, 2019

motion for reconsideration is not an opportunity for a party to rehash arguments
already decided by the Court, or to present new arguments that were not previously
raised.4 In order for the motion to be granted, the movant must “demonstrate newly
discovered evidence, a change in the law, or manifest injustice.”5 “Delaware law
places a heavy burden on a [party] seeking relief pursuant to Rule 59.”6

Here, the Court has reviewed and considered the motion and the additional
letters, and finds that Mr. Parsons has not met his burden to obtain relief pursuant to
Rule 59. Mr. Parsons’s motion contains no new argument or information that would
cause this Court to reconsider its previous decision or to conclude that there has been
any error in these proceedings Further, the motion for reconsideration has
demonstrated no newly discovered evidence and no change in the law, and Mr.
Parsons’s allegations do not show manifest injustice.

Lastly, the Court finds that Mr. Parsons’s motion for reconsideration attempts
to rehash prior arguments and repeat factual allegations, by re-arguing his original
motion under the guise of the Matthews test. This Court has previously analyzed and

applied the Matthews factors to Mr. Parsons’s case and need not perform the analysis

 

4 Kennedy, 2006 WL 488590, at *l; Tilghman v. Del. State Univ., 2012 WL 5551233, at *l (Del.
Super. Oct. 16, 2012).

5 Brenner v. Village Green, Inc., 2000 WL 972649, at *l (Del. Super. May 23, 2000) (citing E.I.
duPont de Nemours Co. v. Admiral Ins. Co., 711 A.2d 45, 55 (Del. Super. 1995)).

6 Newbom v. Christiana Psychiatric Ser'v., P.A., 2017 WL 394096, at *2 (Del. Super. Jan. 25,
2017).

Parsons v. DuShuttle, MD., et al.
C.A. No. K18C-12-022 NEP
April 17, 2019

again.7 The Court is mindful of the difficulties faced by inmates with regard to
accessing the law library or obtaining private counsel. However, “[t]he case law is
clear that mere allegations of limits on the amount of time an inmate can spend in the
prison library are not sufficient to create a right to appointed counsel in a civil case.”8
Moreover, while incarceration may make obtaining an affidavit of merit more
challenging, an inmate is not precluded from doing so, nor is he in a unique position

vis-a-vis other indigent plaintiffs merely because of his incarceration9

WHEREFORE, for the foregoing reasons, the motion is hereby DENIED.

IT IS SO ORDERED.

/Q/ Nnel Fa<rm Prian

Judge

NEP/dsc

 

7 See Parsons v. Dushuttle, 2019 WL 1131956, at *4 (Del. Super. Mar. 8, 2019).

8 Miller v. Taylor, 2010 WL 1731853, at *1 (Del. Super. Apr. 28, 2010) (citing Vick v.
Department of Correction, 1986 WL 8003, at *3 (Del. Super. Apr. 14, 1986)).

9 See Steedley v. Surdo-Galef, 2013 WL 1228019, at *1 (Del. 2013) (rejecting plaintiff’ s
contention that affidavit of merit requirement was unconstitutional as applied to him, an indigent
prisoner, because it restricted his access to courts). Additionally, the Court once again notes, as to
the second Matthews factor regarding the government’s interest, that Mr. Parsons has failed to
meet his burden of establishing how his case is different from the multitude of other cases in
which inmates allege civil claims, including claims of medical malpractice See Parsons, 2019
WL1131956, at *4.

