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Third Circuit Affirms Refusal to Appoint Successive Counsel in Prisoner’s Civil Rights Case

by David M. Reutter

In a precedential ruling, on June 19, 2019, the Third Circuit Court of Appeals held that a district court did not abuse its discretion when it declined to appoint successive counsel in a prisoner’s civil rights action after initialcounsel withdrew from the case.

In 2010, Pennsylvania prisoner Darien Houser filed a pro se complaint alleging a prison superintendent, Louis S. Folino, and medical director, Dr. Jin, were deliberately indifferent to his serious medical needs. Houser first moved for appointed counsel in 2012, but the district court concluded it was too early to determine whether the suit had sufficient merit and complexity to justify appointing an attorney.

After the court denied the defendants’ motion for summary judgment, it granted Houser’s renewed motion to appoint counsel. Two lawyers declined to take the case in mid-November 2014, but the law firm of Reed Smith LLP stepped up to the plate. Over the next year, the firm expended over 1,000 hours of pro bono representation in conducting discovery and preparing the case for trial.

Houser, however, was not satisfied with the representation because he disagreed with Reed Smith’s trial strategy, believing it would “dismantle” his case. The law firm moved to withdraw as counsel in August 2015. At a hearing, the district court warned Houser that it was “not going to ask anyone else to do this.” The court also said it would “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 to do.” Houser did not provide a straightforward answer, and continued to disagree with Reed Smith’s trial strategy. The court granted the firm’s motion to withdraw, then denied a motion to appoint successive counsel.

The case went to trial in December 2015 with Houser representing himself. The jury found that he had failed to prove a serious medical need, and issued a verdict in favor of the defendants. The court subsequently denied Houser’s motion for a new trial based on the denial of his motion to appoint successive counsel.

On appeal, Houser cited Tabron v. Grace, 6 F.3d 147 (3d Cir. 1993), which set forth six factors for courts to consider when appointing counsel, and argued that “district courts must appoint new counsel if initial appointed counsel withdraws.” The defendants countered 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.”

The Third Circuit wrote that “[n]othing in our precedents distinguishes first requests for counsel from later requests. Tabron’sguidance applies just the same.” It also held the district court did not abuse its discretion in denying Houser’s request for successive counsel, as it found that he could ably represent himself and that “the scarcity of pro bono resources weighed against appointing Houser another lawyer.” The district court’s order was affirmed. See: Houser v. Folino, 927 F.3d 693 (3d Cir. 2019). 

Related legal case

Houser v. Folino