Darien Houser v. Louis Folino , 927 F.3d 693 ( 2019 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 16-2242
_____________
DARIEN HOUSER,
Appellant
v.
SUPERINTENDENT LOUIS S. FOLINO; DR. JIN, MD.;
PA DIGGS; LUCAS-ANTONICH
____________
On Appeal from the United States District Court for the
Western District of Pennsylvania
(D.C. Civil No. 2-10-cv-00416)
District Judge: Honorable Donetta W. Ambrose
Argued: September 25, 2018
Before: AMBRO, CHAGARES, and GREENAWAY, JR.,
Circuit Judges.
(Filed: June 19, 2019)
Teresa Akkara [ARGUED]
University of Pennsylvania School of Law
3400 Chestnut Street
Philadelphia, PA 19104
Roger A. Dixon
Joseph K. Hetrick
Dechert LLP
2929 Arch Street
18th Floor, Cira Centre
Philadelphia, PA 19104
Counsel for Appellant
Sean A. Kirkpatrick [ARGUED]
Howard G. Hopkirk
Office of Attorney General of Pennsylvania
Strawberry Square
Harrisburg, PA 17120
Counsel for Appellee Superintendent Louis Folino
John J. Hatzell, Jr. [ARGUED]
Haddix and Associates
1650 Market Street
Suite 3800
Philadelphia, PA 19103
Counsel for Appellee Dr. Jin, MD
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OPINION OF THE COURT
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2
CHAGARES, Circuit Judge.
Darien Houser filed a pro se lawsuit against prison
officials for deliberate indifference to his medical needs. The
District Court appointed him counsel. When counsel
withdrew, however, the District Court declined to appoint a
new lawyer. Houser tried the case himself and lost. He now
argues that the District Court abused its discretion by denying
him new counsel without considering the six factors that this
Court set forth to guide district courts in Tabron v. Grace, 6
F.3d 147 (3d Cir. 1993). We hold that Tabron applies to
successive motions to appoint counsel, but that denying Houser
new counsel was not an abuse of discretion. Accordingly, we
will affirm.
I.
Houser is a Pennsylvania state prisoner. In 2010, he
initiated this action under 42 U.S.C. § 1983 against the prison’s
superintendent, Louis S. Folino, and its medical director, Dr.
Jin, claiming that they had been deliberately indifferent to his
medical needs.
Houser first requested appointed counsel in 2012. The
District Court considered the request, but concluded that it was
too early to tell whether the claims had sufficient merit and
complexity to justify appointing counsel. The court therefore
denied the request without prejudice.
Discovery proceeded, and the defendants moved for
summary judgment in 2013. Houser prepared and filed
opposition papers to the motions for summary judgment, still
pro se. In May 2014, while the summary judgment motions
3
were pending, he again moved to appoint counsel. The District
Court denied the defendants’ motions for summary judgment
in July 2014, and, on the same day, the Magistrate Judge
granted Houser’s motion to appoint counsel without opinion.
The District Court conducted a search to secure pro
bono counsel for Houser. Two lawyers declined to represent
Houser before, in mid-November 2014, the law firm Reed
Smith LLP agreed. After it assumed Houser’s representation,
the parties conducted additional discovery (including new
interrogatories, expert reports, and depositions). Reed Smith
would go on to devote over one thousand hours to discovery
and trial preparation and merits our appreciation for its efforts.
In August 2015, however, Reed Smith moved to
withdraw as Houser’s counsel. The firm cited fundamental
disagreements with Houser on strategy, a complete breakdown
in communication, and an irremediably broken attorney–client
relationship. The District Court held a conference on the
motion, which Houser attended by video. Reed Smith lawyers
explained that Houser refused their calls and jeopardized the
attorney–client privilege by forwarding their letters to the
court. Houser responded that he had not been
uncommunicative, but he did disagree with Reed Smith about
how to litigate the case. Specifically, Reed Smith had asked
Houser to sign an agreement that set forth its trial strategy
(such as the claims to advance, witnesses to call, and so on),
which Houser believed would “dismantle” his case.
The District Court explained to Houser that it could not
dictate his lawyers’ trial strategy and informed him what would
happen if they withdrew. The court advised:
4
[Lawyers at Reed Smith] were the third attorneys
requested to take the case. We’re not going to
ask anyone else to do this. You should
understand that if they are out of this case, and
they may be, that you will proceed. And quite
frankly, you proceeded and handled the case on
your own for four years. You are intimately
aware of what the case is about. They have done
all the hard work in terms of getting it ready,
getting the expert, doing the depositions. They
have done all that for you. So, that is what is
going to happen here. I’m going to make a
decision about how you’re going to proceed, or
you’re going to proceed on your own, if you tell
me that’s what you want me to do.
....
I’m asking you, what do you want to do? Do you
want to go to trial with these people representing
you, these attorneys, or do you want to go to trial
and represent yourself?
And as I said, you know a lot about this case. I’m
not suggesting that you should, but this is what
you have to think about.
Joint Appendix (“JA”) 115–17.
Houser never gave a straightforward answer as to
whether he consented to Reed Smith’s withdrawal, but he did
maintain that he would not agree to its trial strategy. Based on
this fundamental disagreement, the District Court granted Reed
Smith’s motion to withdraw. It explained to Houser, “As I said
5
earlier, I think you know more about this case than anyone.
You know what is in your head about it. You know what
happened to you. You have progressed with it to this point.”
JA 137–38.
Houser asked the court to put him back on the
“appointment of counsel” list and to stay the case for six
months while he sought pro bono counsel on his own. The
District Court denied this request, stating:
Well, you don’t get to pick the attorney, I have
to tell you. That’s not how it works. This is a
civil case. It’s not a criminal case. You don’t
get to pick the attorney, unless you want to pay
for one, and then, of course you can.
....
Mr. Houser will be proceeding pro se. He has
asked me to appoint counsel, and I don’t think
that’s going to happen, because as I said, Reed
Smith was the third counsel under the pro bono
program that was asked to review and accept the
case, and that’s as far as we’re going to go.
....
As I indicated, two attorneys reviewed this case
and refused to take it before Reed Smith
reviewed it and agreed to take it. So we’re not
going to pursue counsel through the pro bono
program anymore, but you certainly can pursue
it any way you’d like. But at this point there’s
no continuance of the trial date.
6
....
[T]his case is already five years old, and it can’t
be much older, because it should be litigated, it
absolutely should. And you have a lot of
information. And you have pursued this case on
your own, quite frankly, for four years, over four
years. You have filed the complaint, and you
have done that. So, these are things that you have
to make decisions about.
JA 139–44. The court ordered all documents sent to Houser
(including deposition transcripts, medical records, and expert
reports), and pushed the trial to December 2015.
In October 2015, Houser filed a written motion to
appoint counsel or to reconsider the oral denial of his request
for counsel at the August conference. The District Court
denied this motion the next day by text-only electronic order
and without explanation.
Houser’s trial took place the first week of December.
The jury returned a verdict for the defendants, finding that
Houser had not proved a serious medical need.
Houser moved for a new trial based on the District
Court’s denial of his motion to appoint counsel (and other
reasons not on appeal). The District Court denied his motion.
It reiterated that, “as a civil litigant, Plaintiff does not have a
right to any counsel, let alone counsel of his choice,” and that
it had “expended considerable effort and experienced
significant difficulty finding counsel willing to represent
Plaintiff in the first instance.” JA 23. The court also observed
7
that “Reed Smith is a prestigious law firm” that “represented
Plaintiff ably and effectively” and that “Plaintiff demonstrated
a command of the facts and the law and competently presented
his own case” at trial. JA 23. It concluded that it was “well
within” its discretion to deny Houser new counsel. JA 23, 30.
Houser moved to reconsider. He argued for the first
time that he “met all prongs under Tabron v. Grace for
appointment of counsel.” JA 780. Specifically, he argued that
his claims had merit and involved “medical issues that were
complex including requiring an expert” and the “conflicting
testimony of multiple witness[es].” JA 780. Accordingly,
Houser contended that it was an abuse of discretion not to
appoint new counsel. The District Court denied the motion to
reconsider, concluding that Houser “largely restate[d]
arguments he asserted in prior motions” and identified no
“intervening change in law, the availability of new evidence,
or any clear error or manifest injustice” to warrant
reconsideration. JA 15.
Houser timely appealed. 1
II.
The District Court had jurisdiction over Houser’s
§ 1983 claims under 28 U.S.C. §§ 1331 and 1343, and we have
1
Houser’s attorneys on appeal are appearing pro bono. We
express our gratitude to those attorneys for accepting this
matter pro bono and for the quality of their representation of
their client. Lawyers who act pro bono fulfill the highest
service that members of the bar can offer to indigent parties
and to the legal profession.
8
jurisdiction over this appeal under 28 U.S.C. § 1291. We
review the denial of a motion to appoint counsel for abuse of
discretion. See, e.g., Montgomery v. Pinchak, 294 F.3d 492,
498 (3d Cir. 2002).
III.
Civil litigants have no constitutional or statutory right
to appointed counsel. Id. Title 28, § 1915 provides, however,
that “[t]he court may request an attorney to represent any
person unable to afford counsel.” 28 U.S.C. § 1915(e)(1).
In Tabron v. Grace, we “provided district courts with a
set of general standards for appointing counsel.” 6 F.3d at 155.
We outlined a two-step process. First, “the district court must
consider as a threshold matter the merits of the plaintiff’s
claim.” Id. Second, “[i]f the district court determines that the
plaintiff’s claim has arguable merit in fact and law, the court
should then consider a number of additional factors that bear
on the need for appointed counsel.” Id. Those factors include:
(1) the plaintiff’s ability to present his or her own
case;
(2) the complexity of the legal issues;
(3) the degree to which factual investigation will
be necessary and the ability of the plaintiff to
pursue such investigation;
(4) the amount a case is likely to turn on
credibility determinations;
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(5) whether the case will require the testimony of
expert witnesses; [and]
(6) whether the plaintiff can attain and afford
counsel on his own behalf.
Parham v. Johnson, 126 F.3d 454, 457 (3d Cir. 1997) (citing
Tabron, 6 F.3d at 155–56, 157 n.5).
This appeal presents two questions: (1) whether the
Tabron factors guide district courts’ discretion regarding
successive requests for counsel or only the initial request, and
(2) whether the District Court abused its discretion by denying
Houser new counsel.
A.
We first consider what role Tabron plays in successive
requests for counsel. We hold that Tabron applies to
successive requests for counsel the same as it applies to initial
requests for counsel — as a guidepost for the district courts in
their exercise of broad discretion under 28 U.S.C. § 1915(e)(1).
The parties stake out the extreme positions on this
question. Houser argues not only that Tabron applies to
successive requests for counsel, but also that district courts
must appoint new counsel if initial appointed counsel
withdraws. The defendants, on the other hand, argue that
Tabron does not apply at all to successive requests for counsel
and therefore district courts can summarily deny new counsel
once litigants squander their first chance. Our precedents,
however, do not support either extreme.
10
We begin with Tabron itself. We held there that
Congress has “give[n] district courts broad discretion to
request an attorney to represent an indigent civil litigant.”
6 F.3d at 153. We thus rejected contrary precedents from our
sister Courts of Appeals that courts should appoint counsel
only in “exceptional circumstances,” concluding that neither
the statute’s “clear language” nor its “legislative history”
supported this requirement. Id. at 153–55. Given “this
opportunity” to consider what showing was required, we also
“provided district courts with a set of general standards for
appointing counsel.” Id. at 155. Then we offered the two-step
process detailed above. The first step, a threshold review for
arguable merit, we described as mandatory: courts “must
consider . . . the merits of the plaintiff’s claim.” Id. In other
words, it would be an abuse of discretion to appoint counsel to
advance claims with no arguable merit in law and fact. Under
the second step, the district courts “should then consider a
number of additional factors that bear on the need for appointed
counsel.” Id. (emphasis added). We then described some
relevant considerations “to guide district courts.” Id. at 157.
But that list of “general standards” was “not meant to be
exhaustive.” Id. at 155, 157. We emphasized that
“appointment of counsel remains a matter of discretion.” Id. at
157. Nothing in Tabron suggests that successive requests for
counsel should be treated differently.
Our later precedents followed suit. In Parham, we
reiterated that “appointment of counsel is discretionary.” 126
F.3d at 457. Although we “delineated various factors to aid
district courts in determining when it is proper to appoint
counsel” in Tabron, we advised that “[t]his list of factors is not
exhaustive, but instead should serve as a guidepost for the
district courts.” Id. at 457–58. Similarly, in Montgomery we
11
explained that “Congress has granted district courts statutory
authority to request appointed counsel,” thereby “affording
district courts broad discretion to determine whether
appointment of counsel in a civil case would be appropriate.”
294 F.3d at 498 (quotation marks omitted). We simply
“developed a list of criteria to aid the district courts” in
exercising this discretion. Id. Again, nothing in our precedents
distinguishes first requests for counsel from later requests.
Tabron’s guidance applies just the same.
B.
We now turn to the District Court’s decision to deny
Houser new counsel. Two considerations drove that decision.
First, the District Court thought that Houser could ably
represent himself — the first Tabron factor, although it did not
name that factor specifically. Second, the District Court
thought that the scarcity of pro bono resources weighed against
appointing Houser another lawyer. We agree on both fronts
and conclude that denying new counsel was not an abuse of
discretion, even without consideration of any other Tabron
factors. 2
1.
2
Defendant Folino also argues that Houser’s claims against
him fail Tabron’s threshold review for arguable merit because
nonmedical prison officials cannot be deliberately indifferent
to the medical needs of prisoners being treated by prison
medical staff (an argument the District Court rejected at
summary judgment and again at trial). Since we affirm on
other grounds, we do not reach this argument.
12
The District Court concluded that Houser could ably
represent himself at trial. At the withdrawal hearing, it noted
that Houser had “proceeded and handled the case on [his] own
for four years” before it first appointed counsel. JA 116. It
opined that he knew “more about this case than anyone” and
noted that he had “progressed with it to this point.” JA 137–
38; see also JA 144 (“And you have a lot of information. And
you have pursued this case on your own, quite frankly, for four
years, over four years.”). Indeed, Houser successfully
persuaded the court to deny summary judgment while acting
pro se. The court also noted that Reed Smith had “done all the
hard work in terms of getting [the case] ready [for trial], getting
the expert, doing the depositions. They have done all that for
you.” JA 116.
This analysis corresponds with the first Tabron factor:
Houser’s ability to present his own case. This factor is
“[p]erhaps the most significant of Tabron’s post-threshold
factors.” Montgomery, 294 F.3d at 501. We have suggested
that, under this factor, courts “should consider ‘the plaintiff’s
education, literacy, prior work experience, and prior litigation
experience’” and “must consider whether the plaintiff has
access to necessary resources.” Parham, 126 F.3d at 459(quoting Tabron, 6 F.3d at 156). And a “sophisticated
‘jailhouse lawyer’” is less likely to warrant appointed counsel
than a litigant bringing his “first and only claim . . . since being
incarcerated.” Montgomery, 294 F.3d at 502. A litigant’s
“ability to file and respond to motions” in particular, we have
explained, “does indicate . . . some legal knowledge.” Parham,
126 F.3d at 459. But “this fact alone does not conclusively
establish” that a litigant is “able to present his own case.” Id.We especially hesitate to rely on an indigent litigant’s ability
13
to file written submissions when “complex discovery rules”
still create a tactical disadvantage. Id.; see also Tabron, 6 F.3d
at 152, 158; Montgomery, 294 F.3d at 501–02.
We agree with the District Court that Houser’s ability to
present his own case argues against appointing new counsel.
Houser’s litigation experience was extensive. In addition to
prosecuting this case for four years before receiving counsel,
Houser was litigating four other cases pro se at the time. And
when he asked for new counsel in this case, there was no
further discovery to conduct. The concerns arising in other
cases — a pro se litigant’s susceptibility to discovery tactics,
technical rulings hindering factual investigations, complex and
incomprehensible discovery rules — were not in play here.
That Houser needed to review Reed Smith’s extensive work
does not undermine the conclusion that its work ultimately
helped him. And the District Court observed that Houser did
competently present his case at trial. Certainly the District
Court could have considered more — Houser’s “education”
and “prior work experience,” for example, which we have
instructed should be “considered in each meritorious case.”
Parham, 126 F.3d at 459. But on balance, the District Court
acted within its discretion to conclude that Houser’s litigation
experience, combined with Reed Smith’s yearlong
contribution, allowed him to try his case himself.
2.
The District Court also relied on its difficulty finding
counsel for Houser the first time. It explained that two
attorneys had reviewed the case and refused to take it before
Reed Smith agreed. The court later added that a “prestigious
law firm” had represented Houser “ably and effectively” and
that the court had “expended considerable effort and
14
experienced significant difficulty finding counsel willing to
represent Plaintiff in the first instance.” JA 23.
The scarcity of pro bono counsel is important, even if it
is not among the delineated Tabron factors. In Tabron, we
“emphasize[d] that volunteer lawyer time is extremely
valuable” and “[h]ence, district courts should not request
counsel under [§ 1915(e)(1)] indiscriminately.” 6 F.3d at 157.
We also acknowledged “the indignities that some lawyers have
been subjected to by certain litigants” and expressed our “trust
that district judges will be sensitive to such problems in making
discretionary decisions in this area.” Id. at 157 n.7. We have
therefore cautioned that, “[i]n addition” to weighing the
Tabron factors, “courts should exercise care in appointing
counsel because volunteer lawyer time is a precious
commodity.” Montgomery, 294 F.3d at 499.
We agree that the concern for scarce pro bono resources
cuts against appointing Houser new counsel. After two
lawyers reviewed and declined his case, Houser received more
than one thousand hours of pro bono assistance from a well-
regarded law firm, as well as a publicly compensated medical
expert. We recognize that these efforts might have helped to
tempt new counsel, who would have picked up a far more trial-
ready case than Reed Smith did. Certainly the District Court
could have asked. But, on the whole, its conclusion was within
its broad discretion.
3.
The District Court did not review any other Tabron
factors before concluding that Houser should not receive new
counsel because, following a year’s worth of pro bono
assistance, he had sufficiently taxed scarce pro bono resources
15
and could reasonably try the case himself. It did not need to.
We have always emphasized that the Tabron factors are only a
guidepost for district courts in their exercise of the broad
statutory discretion granted to them by Congress. They are not
exhaustive, nor are they each always essential. For example,
the District Court was not required mechanically to consider
whether Houser’s claims were “likely to require extensive
discovery and compliance with complex discovery rules” or
would “require testimony from expert witnesses” when Reed
Smith had already completed discovery and arranged for an
expert at the time when Houser requested new counsel.
Tabron, 6 F.3d at 156. District courts should consider the
Tabron guideposts that may be relevant to any particular
request for counsel, including successive requests, at the time
and stage of litigation that the request is made. And district
courts must, of course, explain their reasoning with enough
detail to permit appellate review for abuse of discretion. See
id. at 158–59.
Here, based on what the District Court did consider, we
cannot conclude that it abused its broad discretion under 28
U.S.C. § 1915(e)(1) to deny Houser new counsel.
IV.
For these reasons, we will affirm the District Court’s
order denying Houser’s motion to appoint counsel and,
accordingly, its orders denying Houser’s motions for a new
trial and for reconsideration.
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