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. e du/thir dc ir c uit_1997/220Filed September 17, 1997

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 95

- 3623

PAUL LAMONT PARHAM,

Appellant

v.

MARSHALL JOHNSON, JR., Medical Doctor;

CHARLES J. KOZAKIEQICZ;

TOM FORESTER, Commissioner;

JOSEPH MAZURK IEWICZ, Ph.D.

ON APPEAL FROM THE

UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

(D.C. No. 90

- cv

- 00726)

Argued: February 14, 1997

Before: COWEN, MCKEE, and JONES,* Circuit Judges.

(Filed: September 17, 1997)

Fred T. Magaziner, Esq. (argued)

Dechert Price & Rhoads

4000 Bell Atlantic Tower

1717 Arch Street

Philadelphia, PA 19103

COUNSEL FOR APPELLANT

_________________________________________________________________ *The Honorable Nathaniel R. Jones, Seni or Circuit Judge, United States

Court of Appeals for the Sixth Circuit, sitting by designation.

Vincent A. DeFalice, Esq. (argued)

DeFalice & Douglas, P.C.

4th Floor, 816 Fifth Avenue

Pittsburgh, Pennsylvania 15219

COUNSEL FOR APPELLEE

OPINION OF THE COURTJONES, Circuit Judge.

Paul Lamont Parham ("Parham") filed suit against his

prison physician, Dr. Marshall Johnson ("Dr. Johnson"),

claiming that Dr. Johnson was deliberately indifferent to

his medical needs. The magistrate judge found that

Parham's claim may have merit and ordered that counsel

be appointed for Parham pursuant to 28 U.S.C. S 1915.

This order was never adhered to. Two years later, Parham,

still without counsel, petitioned the district court to appoint

him an attorney. The district court acknowledged that

Parham's claim had merit, but denied his request. Parham

was then forced to try his claim pro se. The district court

directed a verdict for Dr. Johnson because Parham faile d to

present an expert witness. Parham then filed a timely

appeal and petitioned this court to appoint him counsel.

This court granted his motion for counsel.1

Upon review, we find that the magistrate judge's order

should have been complied with and Parham should have

had counsel below. Accordingly, we reverse and remand.

I.

On November 15, 1989, Parham experienced a high

pitched ringing noise in his left ear. Parham expressed this

concern to Dr. Johnson and told him that it may be an

actu al ringing noise in the prison, but he was unsure. Dr.

Johnson diagnosed Parham's condition as tinnitus.

_________________________________________________________________

1. We take this opportunity to note that appellant's court

- appointed

counsel di d an excellent job in this case, and we appreciate their time

and effort.

2

Tinnitus is a "subjective noise sensation heard in one or

both ears." Mosby's Medical Dictionary 1559 (Kenneth N.

Anderson ed., 4th ed. 1993). This condition is generally not

diagnosed without a comprehensive diagnosis, Linda M.

Luxon, Tinnitus: Its Causes, Diagnosis, and Treatment, 306

British Med. J. 1490 (1993); yet, Dr. Johnson diagnosed it

after a simple exam.

To treat the tin nitus, Dr. Johnson prescribed Cortisporin

ear drops. Cortisporin is an antibiotic solution for the

treatment of "superficial bacterial infections of the external

auditory canal . . . ." Physicians' Desk Reference ("PDR")

768 (43rd ed. 1989).2 The warni ngs in the PDR indicate

that Cortisporin "should be used with care when the

integrity of the tympanic membrane is in question becauseof the possibility of ototoxicity . . . [and because] [s]tinging

and burning have been reported when this drug has gai ned

access to the middle ear." Id. Moreover, the manual says

nothing about using Cortisporin for tinnitus. Dr. Johnson

never referred to the PDR. In fact, his testimony was in

direct contrast to the warnings in the PDR; he testified that

if the Cortis porin gets in the inner ear a patient probably

would not experience burning and stinging, but may

experience dizziness.

Parham returned to Dr. Johnson several times after

receiving this prescription and complained of burning and

stinging sensations in his ear. Dr. Johnson, however,

continued to prescribe Cortisporin. The PDR states that

"[t]reatment should not be continued for longer than ten

days." PDR at 768 (emphasis added).3 It further provides

that if "sensitization or irritation occurs, med ication should

be discontinued promptly." Id. Dr. Johnson inexplicably

continued the treatment for 114 days.

On January 10, 1990, Parham returned to Dr. Johnson

because his ear was now oozing with blood and his hearing

was becoming impaired. The phy sician assistant noticed a

laceration in Parham's tympanic membrane. Parham

_________________________________________________________________

2. The PDR is currently in its 51st edition. We, however, refer to the

43rd

edition because it was the editi on available to Dr. Johnson in 1989.

3. Dr. Johnson testified that someone could stay on this medication for

more than ten days if there were no adverse side effects. J.A. at 279

- 80.

3

requested that he be allo wed to see an ear specialist, but

Dr. Johnson declined this request and continued treating

Parham with the same prescription. Even when Parham

lost total hearing in his left ear in February, Dr. Johnson

refused to recommend a specialist and continued a long the

same course.

In January and February 1990, Parham saw Dr. Johnson

at least five to six times. Each time Parham requested to be

allowed to see an ear specialist, and each time Dr. Johnson

declined his request.

Finally, towards the end of February, Dr. Johnson

allowed Parham to see an ear specialist. On March 6, 1990,

an ear specialist examined Parham and confirmed that he

had severe hearing loss in his left ear. The ear specialist

recommended a battery of tests.After these events, Parham decided to file suit against Dr.

Johnson and various other defendants.4 Parham then filed

five separate motions requesting that counsel be appointed.

On January 6, 1992, the magistrate judge entered an order

directing the clerk of court to appo int counsel for Parham.

Two years later, the clerk still had not appointed counsel.

Parham once again petitioned the district court to

appoint counsel for him. The district court recognized that

Parham's claim was "arguably meritorious in fact and la w,"

but denied his request for counsel. District Court Order,

June 27, 1994. The district court reasoned that since no

expert testimony was involved Parham could competently

try the case without the assistance of counsel. Id.

Consequently, Parham tr ied the case pro se to a jury. At

the end of the Parham's presentation of the evidence, the

district court directed a verdict for Dr. Johnson. The

district court stated that a reasonable juror could not find

that Dr. Johnson was deliberately indifferen t to Parham's

medical problem. The district court reasoned that every

time Parham sought attention from Dr. Johnson, Dr.

Johnson listened to his complaint and responded to it.

More importantly, the district court found that Parham did

________________ _________________________________________________

4. The other defendants were eventually dismissed, and this appeal does

not concern any of the defendants other than Dr. Johnson.

4

not present evidence of the causal connection between his

pain and suffering and Dr. Johnson's actions. The district

court held that in order to present sufficient evidence to

withstand a directed verdict, Parham had to present the

testimony of an expert witness to show "that you r

[Parham's] condition was caused by the treatment that Dr.

Johnson gave to you or treatment which he failed to

reasonably give to you; you haven't produced that kind of

evidence." Finally, the district court found that Parham

failed to present eviden ce that his condition was "serious."

Ultimately, the district court held that Parham's failure to

produce expert testimony led to the necessity of a judgment

as a matter of law.

II.

On appeal, Parham claims that the district court

improperly deni ed him counsel after first ordering the clerk

of courts to appoint him counsel.5 The Supreme Court has

not recognized nor has the court of appeals found aconstitutional right to counsel for civil litigants. See, e.g.,

Lavado v. Keohane, 992 F.2d 601, 605 (6th Cir. 1993)

("Appointment of counsel in a civil case is not a

constitutional right.") (internal quotations and citations

omitted); Fowler v. Jones, 899 F.2d 1088, 1096 (11th Cir.

1990) (same); United States v. 30.64 Acres of Land, 795

F.2d 796 , 801 (9th Cir. 1986) ("There is normally. . . no

constitutional right to counsel in a civil case.").

Additionally, civil litigants do not even have a statutory

right to appointed counsel. Tabron v. Grace, 6 F.3d 147,

153 (3d Cir. 1993). Despite the la ck of a constitutional right

to counsel, section 1915(e)(1) provides that "[t]he court may

request an attorney to represent any person unable to

employ counsel." Such appointment is discretionary, and

thus, we review the district court's decision to de ny counsel

for an abuse of discretion. Tabron, 6 F.3d at 158.

_________________________________________________________________

5. Parham also argues that the district court erred in granting the

Defendant's motion for judgment as a matter of law. De fendant's counsel

agreed at oral argument that this case must be remanded if we find that

the district court abused its discretion when it denied Parham counsel.

Because we find that the district court erred in not appointing Parham

counsel, we need no t reach the directed verdict issue.

5

A.

While all of the circuits agree that appointment of

counsel is discretionary, not all of the circuits agree when

counsel should be appointed. Several circuits have held

that counsel can be appointed only in "exceptional

circumstances," but the Second, Third, Seventh, and

Eighth Circuits have chosen not to read such a requirement

into the statute. Compare United States v. $292,888.04 in

United States Currency, 54 F.3 d 564, 569 (9th Cir. 1995)

("Under section 1915(d), counsel may be designated only in

`exceptional circumstances.' ") (citation omitted); Lavado,

992 F.2d at 605

- 6 (holding that appointment of counsel is

a privilege justified only by exceptional circum stances)6;

Fowler, 899 F.2d at 1096 (same); Cookish v. Cunningham,

787 F.2d 1, 2 (1st Cir. 1986) ("[A]n indigent litigant must

demonstrate exceptional circumstances in his or her case

to justify the appointment of counsel."); with Tabron, 6 F.3d

at 15 5 (rejecting "exceptional circumstances" test); Rayes v.

Johnson, 969 F.2d 700, 703 (8th Cir. 1992) ("The

appointment of counsel should be given serious

consideration . . . if the [indigent] plaintiff has not alleged

a frivolous or malicious claim and the pleadings state a

prima facie case.") (internal quotation and citations

omitted); Hodge v. Police Officers, 802 F.2d 58, 61 (2d Cir.1986) (rejecting the "exceptional circumstances" rationale

and adopting factors enunciated in Maclin v. Freake, inf ra);

Maclin v. Freake, 650 F.2d 885, 887

- 88 (7th Cir. 1981) (per

curiam) (delineating factors courts should consider in

appointing counsel including merits of claim, chance of

success, complexity of factual evidence and legal issues,

_________________ ________________________________________________

6. I recognize that I previously authored Lavado in the Sixth Circuit,

which endorsed the "exceptional circumstances" test. However, after a

thorough review of the rationale behind Judge Becker's decisi on in

Tabron and the cases he followed, I have re

- evaluated my position. I now

agree that Congress did not intend nor did they state that appointment

of counsel is only justified in "exceptional circumstances"; rather, this

standard is one of judicial creation. In recanting my previous view, I

invoke the statement of Justice Felix Frankfurter, "Wisdom too often

never comes, and so one ought not to reject it merely because it comes

late." Henslee v. Union Planters Bank, 335 U.S. 595, 600 (1949)

(Fran kfurter, J., dissenting).

6

whether conflicting testimony will be presented, and

capability of litigant to represent himself ). In fact, this

circuit has found "[n]othing in [the] clear language [of

section 1915 (e)(1)] suggests that an appointment is

permissible only in some limited set of circumstances. Nor

have we found any indication in the legislative history of

the provision to support such a limitation." Tabron, 6 F.3d

at 157.

Consequently, the Tabro n court delineated various factors

to aid district courts in determining when it is proper to

appoint counsel for an indigent litigant in a civil case. As a

preliminary matter, the plaintiff's claim must have some

merit in fact and law. Id.; see also M aclin, 650 F.2d at 887

("First, the district court should consider the merits of the

indigent litigant's claim.").

If the district court determines that the plaintiff 's claim

has some merit, then the district court should consider the

following fac tors:

(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 purs ue

such investigation;(4) the amount a case is likely to turn on credibility

determinations;

(5) whether the case will require the testimony of

expert witnesses;

(6) whether the plaintiff can attain an d afford counsel

on his own behalf.

Id. at 155

- 56, 157 n.5. This list of factors is not exhaustive,

but instead should serve as a guidepost for the district

courts. Correspondingly, courts should exercise care in

appointing counsel because vo lunteer lawyer time is a

precious commodity and should not be wasted on frivolous

cases. Id. at 157.

7

B.

In this case, the magistrate judge originally granted

Parham's motion for appointment of counsel and o rdered

that the clerk of courts appoint counsel for Parham. J.A. at

97. After two years, however, nothing occurred. When

Parham once again petitioned the district court to appoint

him counsel, it denied his request. The district court

conceded that Pa rham's case "is arguably meritorious in

fact and law," J.A. at 191 (District Court's Order Denying

Counsel June 27, 1994), but concluded that Parham was

capable of representing himself, the legal issues were not

difficult, the facts were manageable, an d there was no

indication that expert testimony would be presented. Id. at

191

- 92. The district court provided no rationale for its

conclusions.

This court must determine whether the district court's

decision to deny Parham's motion for appointment of

counsel was an abuse of discretion. Tabron, 6 F.3d at 158.

We agree with the district court that this case is"arguably

meritorious." First, Dr. Johnson diagnosed tinnitus without

a comprehensive diagnosis, even though a comprehensive

diagnosis is r ecommended. See Luxon, 306 British Med. J.

at 1490 ("Diagnosing the cause of tinnitus requires a

detailed history and examination."). Second, Dr. Johnson

prescribed Cortisporin ear drops. The PDR, however, says

nothing about prescribing Cortisporin for tinnitus, see PDR

at 768; yet Dr. Johnson never referred to the PDR.

After using the Cortisporin, Parham complained of

burning and stinging sensations in his ear, but Dr.

Johnson said that Cortisporin would not cause such

sensations. The PDR says o therwise

-- "If sensitization orirritation occurs, medication should be discontinued

promptly." Id. Parham returned to Dr. Johnson various

times complaining of burning and stinging sensations, but

Dr. Johnson nevertheless continued to prescribe

Cortisp orin. In fact, he prescribed it for an astronomical

time period

-- 114 days

-- even though the PDR warned

against it being used for more than ten days. At one point,

Parham came to Dr. Johnson with his ear oozing with blood

and requested to see a specialis t. Dr. Johnson rejected his

request. He sent Parham back to his cell with the same

8

prescription. Even when Parham lost total hearing in his

ear, Dr. Johnson refused to allow him to see a specialist.

Finally, a fter multiple visits, Dr. Johnson allowed Parham

to see a specialist, who found that Parham suffered a

severe hearing loss. We think these allegations, coupled

with the evidence Parham has already established, present

a meritorious case. Of course, at trial Parham will still have

to show that Dr. Johnson's "[a]cts or omissions [were]

sufficiently harmful to evidence deliberate indifference to

serious medical needs." Estelle v. Gamble, 429 U.S. 97, 106

(1976). We will leave that determination in the hands of the

jury.7

_________________________________________________________________

7. We recognize the well

- established law in this and virtually every

circuit

that actions characterizable as medical malpractice do not rise to the

level of "delib erate indifference" under the Eighth Amendment. See, e.g.,

Estelle v. Gamble, 429 U.S. 97 (1976); Inmates of Allegheny County Jail

v. Pierce, 612 F.2d 754 (3d Cir. 1979). In Pierce, we said that

"[a]lthough

negligence in the administration of medical tr eatment to prisoners is not

itself actionable under the Constitution, failure to provide adequate

treatment is a violation of the Eighth Amendment when it results from

`deliberate indifference to a prisoner's serious illness or injury.' " 612

F.2d at 7 62 (quoting Estelle, 429 U.S. at 105)).

We find that the facts here are sufficient that a jury could reasonably

find that the care received by Parham while incarcerated rose to the level

of Eighth Amendment deliberate indifference, and appointment of

counsel was therefore appropriate. In clarifying the appropriate

standard, we previously stated in Pierce:

[T]his test affords considerable latitude to prison medical

authorities

in the diagnosis and treatment of the medical problems of inmate

patients. Courts will "disavow any attempt to second

- guess the

propriety or adequacy of a particular course of treatment . . .

[which]remains a question of sound professional judgment." Bowring v.

Goodwin, 551 F.2d 44, 48 (4th Cir. 1977). Implicit in this

deference

to prison medical authorities is the assumption that such informed

judgment has, in fact, been made. When, however, prison authorities

prevent an inmate from receiving recommended t reatment for

serious medical needs or deny access to a physician capable of

evaluating the need for such treatment, the constitutional standard

of Estelle has been violated.

Id. at 762 (emphasis added). Similarly, in White v. Nap oleon, we held

that "treat[ment] . . . with an inappropriate drug for no valid reason . .

. is sufficient to state a claim for deliberate indifference to serious

medical

needs." 897 F.2d 103, 111 (3d Cir. 1990).

9

Finding that Parham has presented a meritorious case

does not conclude our inquiry. We still must perform the

requisite six

- factor Tabron analysis.

(1) The plaintiff's ability to present his or her own

case.

In considering this factor, c ourts should consider"the

plaintiff's education, literacy, prior work experience, and

prior litigation experience." Tabron, 6 F.3d at 156.

Furthermore, courts must consider whether the plaintiff

has access to necessary resources like a typewriter,

pho tocopier, telephone, and computer. Id. (citing Rayes,

969 F.2d at 703

- 04). While these factors will not always be

determinative, they should be considered in each

meritorious case.

The Defendant argues that Parham's ability to present

and respond to motions indicates he was fully capable of

presenting his own case. Parham's ability to file and

respond to motions does indicate that Parham had some

legal knowledge and is literate; however, this fact alone

does not conclusively establish that Parham was able to

present his own case. In Tabron, the indigent prisoner filed

interrogatories and responded to motions, but the court

found this inconclusive. See id. at 152. Instead, the Tabron

court found that the prisoners lack of legal experience and

the complex discovery rules clearly put him at a

disadvantage in countering the defendant's discovery

tactics. Id. at 158.

In the case at bar, Parham did not appear to have the

ability to present an effective case. This seems especiallytrue conside ring the fact that Parham could not present a

prima facie case below, even though he withstood summary

judgment. Furthermore, just a cursory glance at the PDR

indicates that if Parham was assisted by counsel his case

probably would have reached the jur y. This case, like

Tabron, involved complex discovery rules that Parham was

obviously not able to comprehend. See infra, section 2.

These rules prevented Parham from presenting an effective

case below.

(2) The complexity of the legal issues.

Wher e the legal issues are complex, it will probably serve

everyone involved if counsel is appointed. See Tabron, 6

10

F.3d at 156; Maclin, 650 F.2d at 889 ("[W]here the law is

not clear, it will often best serve the ends of justice to have

both sides of a difficult legal issue presented by those

trained in legal analysis."). In this case, the ultimate issue

appears relatively simple

-- whether Dr. Johnson was

deliberately indifferent to Parham's serious medical nee ds.

A lay person, like Parham, should be able to comprehend

what he has to prove when the legal issue is

understandable.

However, comprehension alone does not equal ability to

translate that understanding into presentation. While the

ultimate issue may be comprehensible, courts must still

look to the proof going towards the ultimate issue and the

discovery issues involved. In this case, Parham was not

able to do a simple authentication of the Cortisporin bottle,

was not able to take depositions, and was not represented

at his own deposition. Parham's inability to introduce the

Cortisporin bottle exemplifies the fact that counsel was

needed in this case.

During trial, Parham attempted to introduce into

evidence the Cortisporin bottle. When he did so, the

Defendant objected and claimed that the label on the bottle

was inadmissible hearsay. The district court sustained the

objection and stated the following:

That is hearsay. It's inadmissible hearsay. Not only

that, docume nts such as that have to be authenticated.

. . . somebody . . . must testify that the document,

which is being offered, is, in fact, what it purports to

be.

J.A. at 237

- 238. Parham could not even begin a simple

authentication pr ocedure; this authentication procedurewas especially simple since Parham ostensibly could have

authenticated the bottle as the one Dr. Johnson prescribed

to him. Second, the label probably was not hearsay. Federal

Rule of Evidence 801 defines hearsay as a "a statement,

other than one made by the declarant while testifying at the

trial or hearing, offered in evidence to prove the truth of the

matter asserted." Parham could have argued that he did

not offer the warning label on the bottle for the "tr uth of the

matter asserted," but instead to show that Dr. Johnson had

11

notice of the warning label. Consequently, the warning label

would not be hearsay. 5 Jack B. Weinstein, Weinstein's

Federal Evidence S 801 .03(1), at 801

- 11 (2d ed. 1997) ("If

. . . Declarant's statement is not offered for its truth, the

inability to assess Declarant's credibility is immaterial, and

the statement is not hearsay.") (internal footnote omitted).

Ultimately, these factors wei gh in favor of appointment of

counsel.

(3) The degree to which factual investigation will be

necessary and the ability of the plaintiff to

pursue such investigation.

The Tabron court noted that courts should consider a

prisoner's predicam ent in attempting to obtain facts, i.e.

the confines of prison. 6 F.3d at 156; see also Rayes, 969

F.2d at 704 (noting the difficulties prisoner plaintiffs with

meritorious cases may have with discovery). Further, courts

should be aware that it may be difficult for indigent

plaintiffs to understand the complex discovery rules.

Tabron, 6 F.3d at 156. A medical malpractice case involves

complex facts and medical records that even most lawyers

struggle to comprehend. Hence, most of these cases require

expert testimony.

In this case, the district court ultimately granted the

Defendant's motion for judgment as a matter of law

because Parham did not have an expert witness. J.A. at

315. A lawyer conducting discovery would probably have

recognized th at it was necessary to obtain expert testimony.

We recognize that it still may be difficult for appointed

counsel to obtain and afford an expert; yet, we believe that

appointed counsel will have a much better opportunity to

obtain an expert than would an indigent prisoner.

Consequently, this factor tips towards appointing counsel.

(4) The amount a case is likely to turn on credibility

determinations.

The district court's decision in this case did not appear torely upon credibility determin ations. While the case

ultimately may have relied upon credibility, it is difficult to

imagine a case that does not. Thus, when considering this

factor, courts should determine whether the case was solely

a swearing contest. In this instance, it does n ot appear to

12

be a swearing contest. Thus, this factor alone does not

encourage the appointment of counsel.

(5) Whether the case will require the testimony of

expert witnesses.

After the district cour t's judgment as a matter of law,

there is no doubt that Parham needed an expert witness.

When the district court was issuing its judgment as a

matter of law, it stated "you haven't produced any expert

medial opinion, which [in] . . . this case you must ." J.A. at

315 (emphasis added) (citing Boring v. Kazkiewicz, 833

F.2d 468, 473 (3d Cir. 1987) (holding that expert testimony

is necessary when the seriousness of injury or illness would

not be apparent to a lay person)). Thus, according to the

distri ct court, Parham had to produce an expert witness.

This finding by the district court is especially startling

because when the district court denied Parham's motion for

court

- appointed counsel, the district court stated that it did

not seem likely th at expert testimony would be needed in

this case. Yet, in dismissing the case, the same district

judge cited as a deficiency in Parham's case the lack of

expert testimony, which the district judge now deemed

essential. It is troublesome that the court could use the

lack of expert testimony as a shield to protect its denial of

the motion for counsel and then as a sword to slay the

indigent plaintiff's case.

Consequently, this factor weighs heavily in favor of

appointment of counsel.

(6) Whether the plaintiff can attain and afford

counsel on his own behalf.

There is no evidence that Parham could have afforded

counsel. Furthermore, it appears that he made every effort

possible, including six motions, to obtain counsel, but it

was to no avail. This factor also weighs heavily in favor of

appointment of counsel.

III.

The district court abused its discretion by not appointingcounsel. This is especially true in light of the fact that the

13

m agistrate judge ordered that counsel be appointed.

Courts, of course, should be aware of the scarcity of

counsel willing to accept pro bono appointments. However,

where a plaintiff's case appears to have merit and most of

the aforementioned factors hav e been met, courts should

make every attempt to obtain counsel. See, e.g., Mallard v.

United States District Court, 490 U.S. 296, 310 (1989) ("[I]n

a time when the need for legal services among the poor is

growing and public funding for such services h as not kept

pace, lawyers' ethical obligation to volunteer their time and

skills pro bono publico is manifest."); Tabron, 6 F.3d at 157

("Representation of indigent litigants is not only an

important responsibility of members of the bar, but it also

p rovides an excellent opportunity for newer attorneys to

gain courtroom experience."). The Tabron factors will ensure

that courts do not appoint counsel to frivolous cases.

No evidence exists that the court made an attempt to

obtain counsel in this ca se, even after it granted the

plaintiff 's motion for appointment of counsel. The decision

of the district court was not consistent with the sound

exercise of discretion.8

Thus, we REVERSE and REMAND this case for further

proceedings consistent with this opinion.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

8. Parham also argues that the court below abused its discret ion by not

providing him guidance as to how to try his case, how to deal with

motions, not explaining the "legal jargon," and etc. We, however, are

hesitant to direct a district court how to act at every stage of the

proceedings. In this case, the dist rict court could have provided more

guidance than it did, but its choice not to provide as much guidance as

possible was not an abuse of discretion.

14