Opinions of the United
1997 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


9-17-1997

Parham v. Johnson
Precedential or Non-Precedential:

Docket
95-3623




Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

Recommended Citation
"Parham v. Johnson" (1997). 1997 Decisions. Paper 220.
http://digitalcommons.law.villanova.edu/thirdcircuit_1997/220


This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova
University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova
University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.
Filed 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 MAZURKIEWICZ, 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, Senior 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 COURT
JONES, 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 failed 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
actual 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 did 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 tinnitus, 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 warnings in the PDR indicate
that Cortisporin "should be used with care when the
integrity of the tympanic membrane is in question because
of the possibility of ototoxicity . . . [and because] [s]tinging
and burning have been reported when this drug has gained
access to the middle ear." 

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 Cortisporin 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, medication should
be discontinued promptly." 

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 physician 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 edition 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 allowed 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 along 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 appoint 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 law,"
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. 

tried 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 indifferent 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 your
[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 evidence 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 denied 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 a
constitutional right to counsel for civil litigants. See, e.g.,
Lavado v. Keohane, 

, 605 (6th Cir. 1993)
("Appointment of counsel in a civil case is not a
constitutional right.") (internal quotations and citations
omitted); Fowler v. Jones, 

, 1096 (11th Cir.
1990) (same); United States v. 30.64 Acres of Land, 

, 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, 

,
153 (3d Cir. 1993). Despite the lack 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 deny counsel
for an abuse of discretion. 

.
_________________________________________________________________

5. Parham also argues that the district court erred in granting the
Defendant's motion for judgment as a matter of law. Defendant'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 not 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, 

, 569 (9th Cir. 1995)
("Under section 1915(d), counsel may be designated only in
`exceptional circumstances.' ") (citation omitted); 

(holding that appointment of counsel is
a privilege justified only by exceptional circumstances)6;

(same); Cookish v. Cunningham,

, 2 (1st Cir. 1986) ("[A]n indigent litigant must
demonstrate exceptional circumstances in his or her case
to justify the appointment of counsel."); with 

(rejecting "exceptional circumstances" test); Rayes v.
Johnson, 

, 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, 

, 61 (2d Cir.
1986) (rejecting the "exceptional circumstances" rationale
and adopting factors enunciated in Maclin v. Freake, infra);
Maclin v. Freake, 

, 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 decision 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, 

, 600 (1949)
(Frankfurter, 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." 

.

Consequently, the Tabron 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 

("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 factors:

       (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;

       (5) whether the case will require the testimony of
       expert witnesses;

       (6) whether the plaintiff can attain and afford counsel
       on his own behalf.

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 volunteer lawyer time is a
precious commodity and should not be wasted on frivolous
cases. 

                                7



B.

In this case, the magistrate judge originally granted
Parham's motion for appointment of counsel and ordered
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 Parham'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, and there was no
indication that expert testimony would be presented. 

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. 

.
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 recommended. 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 otherwise--"If sensitization or
irritation occurs, medication should be discontinued
promptly." 

to Dr. Johnson various
times complaining of burning and stinging sensations, but
Dr. Johnson nevertheless continued to prescribe
Cortisporin. 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 specialist. 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, after 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, 

, 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 "deliberate indifference" under the Eighth Amendment. See, e.g.,
Estelle v. Gamble, 

(1976); Inmates of Allegheny County Jail
v. Pierce, 

(3d Cir. 1979). In Pierce, we said that
"[a]lthough
negligence in the administration of medical treatment 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.' 

(quoting 

)).

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, 

, 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 treatment 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.

(emphasis added). Similarly, in White v. Napoleon, 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." 

, 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, courts should consider"the
plaintiff's education, literacy, prior work experience, and
prior litigation experience." 

.
Furthermore, courts must consider whether the plaintiff
has access to necessary resources like a typewriter,
photocopier, telephone, and computer. 

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 

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. 

In the case at bar, Parham did not appear to have the
ability to present an effective case. This seems especially
true considering 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 jury. 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.

Where the legal issues are complex, it will probably serve
everyone involved if counsel is appointed. See Tabron, 

; 

("[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 needs.
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, documents 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 procedure; this authentication procedure
was 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 "truth 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 weigh 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 predicament in attempting to obtain facts, i.e.
the confines of 

; see also 

(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.

. 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 that 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 to
rely upon credibility determinations. 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 not 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 court'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, 

, 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
district 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 that 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 appointing
counsel. This is especially true in light of the fact that the

                                13



magistrate 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 have been met, courts should
make every attempt to obtain counsel. See, e.g., Mallard v.
United States District Court, 

, 310 (1989) ("[I]n
a time when the need for legal services among the poor is
growing and public funding for such services has not kept
pace, lawyers' ethical obligation to volunteer their time and
skills pro bono publico is manifest."); 

("Representation of indigent litigants is not only an
important responsibility of members of the bar, but it also
provides 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 case, 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 discretion 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 district 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