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]
2

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

____________

OPINION OF THE COURT

____________
3

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 
4

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: 
5

[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 
6

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. 
7

. . . .

[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 
8

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.
9

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;
10

(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.
11

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 
12

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.
13

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 
14

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 
15

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 wellregarded 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 trialready 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 
16

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.