need to know then what the nature of the the cabin factors are i mean they do provide guidepost but is it always there or if the court fails to to consider one or more of them the factors before the point of conflict if i understood the x correctly we need smithfield thirteen hundred hours now i was an associate a long time ago for two hundred hours is all my time for six months i worked hard i was in new york or more than that more than six months in the day a different market full time weekends now i am not kamil you are with you know all of the intricacies of this case the way you are and your client is i only read what's in front of me but if if if i got had an associate at all large while knowing a person to just firm give me all of their time for six months what else could there possibly be to do so that when my point builds up to this point going to court says that you know all of the discoveries that everything is ready you obviously  familiar with the case you've been on that you've been on the case so to speak for four years why why is it or why should we find that there  the court of appeals may not be able to determine whether the district court analyzed the decision properly and that is exactly what we have here because there is nothing in the record to demonstrate the district court the same position over ten months that he was previously but that's certainly true in iran and it and it is also true that he was given factual discovery but to go back to part of this court noted there that there's a difference between the facial complexity of an issue and the difficulty of presenting that issue to him during an adversarial setting similarly there's a difference between combating that factual discovery which mr arthur had he had thousands of pages to goes to sort through  and there's a difference between possessing those pages and being able to sort through them and understand how to thank you could carry those those those documents for trial and so with respect to the ability issue this artificial that mr hauser did being there running away doing other things this is a case of it probably is something that a lot of associate a lot were spending countless hours trying to do the case and there was an irreconcilable bond to every case and dictating what that application result in so the distinction i'm trying to make here is that with respect to the abuse of discretion we are discussing the district court failure to apply the relevant test to this case that with the piece of discretion what what was missed what the judge missed in terms of defectors that should have been taken into account the judge should have discussed the resources  which resulted in his expert witnesses impeachment during trial which severely damaged the credibility of the case mr hauser as a prisoner does not have access to the internet he was not able to investigate his expert's credentials his expert tonight in this case the district court did not and in each subsequent attend our opportunity rather to explain its decisions deny it relied exclusively on factor that mr hauser had performed competently at trial and it is not a position that these factors are irrelevant but rather that they should have not i think they needed to be informed or are you telling us that the it would go in your favor that we should  this person had the ability to represent himself he had done so he had crude and that there was great difficulty getting counsel the first time gets counsel counsel spends a lot of time on the matter and you had a irreconcilable conflict so if the person is it in jest but nonetheless is able to represent herself how can we say this isn't a beauty of discretion for the court to say i can't go any further not to appoint counsel to run really we could not just be talking to grant just simply apply the wrong standard so the case was sent back to the magistrate judge to determine whether or not an attorney should be appoint they concluded it was not of the piece of discretion of the case and i am familiar with the eighth circuit case that is presidential radius r a y e s p johnson nine sixty nine f second seven hundred that i've adopted was a hearing about this which was counsel motion judge your post gave the prisoner multiple opportunities to determine whether or not to keep counsel big judge even said you want to week to think about this you can have a week to think about it let's change the back of a little bit ok it's it's just an act and honest i can't work with this person anymore  and the lawyer agrees and says on the record hey you know nice fellows it's just not working ok so the question is in that circumstance would between basically what you had here was the prisoner saying look i don't want these attorneys to dismantle my case i know my case and fight it out i know what i have to prove i know what what my damages are i know what my injury talked and i'm the best person to to tell them how to do it and if they don't want to do it the way i'd tell them to do it then that's the problem i want them to try the case the way i want them to right and i don't think it was like franco or  circumstances rose calling or a request for successive councils to bronch perhaps if there was a situation where the defense counsel point defense counsel fell ill and was not able to perform the functions as an attorney then maybe you would have to look at it a little a lot of patience and and made extraordinary efforts to try to persuade your prisoner if you could have cared if you look like a pro and how would how would you apply it to this case to show that this was not an of use discretion what would you say and she said it like i said if you want another week you want to think about it she got she tried to give him every opportunity takes up weeds met three attorneys who have worked up this case to represent him and he just said well you know i don't want to  might be now i think he didn't want them to present the case the way it needed to be presented in a professional responsible manner will now if there eat you we all know that on the third try they found reid smith means with a ton of work and then go through three attorneys two attorneys previously looked at the file and said now we i don't want to you think he was lucky enough to get we just met who put all their resources very i don't think it's really practical to assume that somebody else is going to come in with that history that they will know about now we would have to do much more work probably shouldn't should the district judge at least give it another shot not with the way in which to how to express himself because he said i may please the court my name is sean patrick with the pennsylvania office of attorney general and i represent superintendent louis lee now before we get into the issue that obviously sort of the a plot of this case which is factors i want to briefly discuss the fact that super teano superintendent really i shouldn't have gone to trial in the first place yeah but the p i would respectfully disagree rahman who did you cross if you know your honor and in ray christopher columbus l l c makes clear that i see pallies we do not need to file across appeal if we raise an argument supported by the record that is in defense of the judgment as entered that's exactly what we're doing here and the danger in holding otherwise is that it would require us to defensively file cross appeals in cases where we want the reason the summary judgment order was never appealed for us because we wanted a jury verdict so the argument that this issue is not probably before the court i would strenuously kitchen cheek and certainly at the when we filed it again at the close of our case in chief so this is an argument we raised below and is a separate and independent basis to uphold what is actually being  appealed which is the judgment and this case falls squarely within spool versus gilts this is a non medical superintendent and the only claims against which are that he in reviewing the grievances did not override the medical judgment of medical staff and i would note that by the time it got to him it had already been appealed once to the bureau of health care going to happen we actually have no issue with the holding that the padrn factors apply with subsequent appointed counsel but as have ron itself makes clear they're anonymous so off the list and we actually cited gordon which is a non presidential binion but i think it's very helpful because that case the panel looked at two other factors and is not that our main concern with the case quite frankly is an institutional case my office a litigation could bury large number of civil right trials bill pending appeal and you would make a claim for ineffective assistance or get your counsel for it if there was a kill to get out of court you'd asked the counsel be appointed for you and so it's understood and it's also understood that if you're in prison is this is what you're thinking about almost exclusively in your sometimes wondering why the counselors and giving you exclusive time it's just hard of the tensions that exist by that by the way things are set up so i don't understand why it can't be that you at some point you take that into account that if you do breach of point where you can't go on any further with a particular c question becomes do you get a second counsel in this a chorus saying the court should have applied to turbo directors on this successive motion and really didn't go through them if they didn't go through the even go through the motions of it was merit with regard to super well if you survive the most i get it but if you're survive a motion for summary judgment a lot of courts use motions for summary judgment to clear the calendar that didn't happen here so i have to assume that there's arguable merit but i can't do trying to argue but in this case that was clear air the case always clear that what is being alleged against the superintendent is not anything man and claim as a matter of law but if we step aside to that yes clear there is a party will merits you cannot afford an attorney we can see that this case looks complex it's going through the trial so the district judge appointed counsel has a very difficult time that counts all after spending a lot of time and quite frankly a lot of the kobo resources because in this case the judge also the court paid for the expertly well i believe and i one point in during the hearing mentioned that if this case was consuming ten times the amount of resources that normal pro bono cases consume made a decision  up when counsel i would note that if we the court talks about likely ability to present the case talks about former counsel conducting an investigation talk about how difficult it was to find believe that there was improper treatment or failure to treat here mr hauser at trial discussed many grievances that he filed and asked mr comino questions pertaining to reason to believe on cross examination so because mr hauser cemented the grievances during trial and and discussed them with mr foley now this is an issue that's not really appropriate for resolution here but rather  rather and he charged with fact finding should be resolving this issue first to address the issue of the withdrawal counsel mr hauser did not want his it was a bit kind of a big question wasn't it he was yes your honor in an attempt to explain why he was doing what he was doing he was faced with an ultimatum and critically mr hauser did not move f