503 F.3d 647 (7th Cir. 2007), 05-1620, Pruitt v. Mote

Docket Nº:05-1620.
Citation:503 F.3d 647
Party Name:Benjamin PRUITT, Plaintiff-Appellant, v. Stephen D. MOTE, Warden, Adella Jordan-Luster, Patricia Beodecker, Officer, Michael P. Mesch, Officer, and Wesley G. Wiles, Officer, Defendants-Appellees.
Case Date:October 03, 2007
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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503 F.3d 647 (7th Cir. 2007)

Benjamin PRUITT, Plaintiff-Appellant,


Stephen D. MOTE, Warden, Adella Jordan-Luster, Patricia Beodecker, Officer, Michael P. Mesch, Officer, and Wesley G. Wiles, Officer, Defendants-Appellees.

No. 05-1620.

United States Court of Appeals, Seventh Circuit.

October 3, 2007

Reargued En Banc May 22, 2007.

Appeal from the United States District Court for the Central District of Illinois. No. 03 C 1030-Harold A. Baker, Judge

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[Copyrighted Material Omitted]

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Peter C. McCabe, III, William P. Ferranti (argued), Winston & Strawn, Chicago, IL, for Plaintiff-Appellant.

Carl Elitz (argued), Office of the Attorney General, Civil Appeals Division, Chicago, IL, for Defendants-Appellees.


SYKES, Circuit Judge.

Benjamin Pruitt, an inmate at the Pontiac Correctional Center in Illinois, filed a lawsuit under 42 U.S.C. § 1983 alleging he was sexually assaulted by a prison guard and that prison employees failed to protect him from this assault. Prior to trial Pruitt filed four motions asking the district court to appoint an attorney to represent him. With the last two motions, Pruitt submitted the results of prison tests showing he had the educational level of an early sixth grader (his composite math and reading scores put him at grade level 6.2). The court denied each of these motions with a brief, conclusory order, observing each time that the case was not "so complex or intricate that a trained attorney is necessary." Proceeding pro se, Pruitt tried his claims before a jury and lost. The sole issue on appeal is the district court's denial of Pruitt's motions for appointment of counsel.

We reverse. Although there is no constitutional or statutory right to court-appointed counsel in federal civil litigation, an indigent civil litigant may ask the district court to request an attorney to represent him pro bono publico. See 28 U.S.C. § 1915(e)(1) (in proceedings in forma pauperis, "[t]he court may request an attorney to represent any person unable to afford counsel"). The district court construed Pruitt's motions as requests for pro bono counsel under § 1915(e)(1) and summarily denied them. In doing so, the court addressed only the complexity of the case, omitting any inquiry into Pruitt's competence to litigate his own claims.

This circuit's legal standard for resolving § 1915(e)(1) motions requires the district court to consider both the difficulty of the case and the pro se plaintiff's competence to litigate it himself. Although the decision whether to recruit counsel is discretionary and our review deferential, here the district court applied only half of the prevailing legal standard, and that is necessarily an abuse of discretion. The court's error was not harmless; there is a reasonable likelihood that assistance of counsel would have made a difference in the outcome of Pruitt's case. This is not to say there is a presumption in favor of

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recruiting pro bono counsel for indigent civil litigants with cases and educational deficits like Pruitt's. We hold only that the district court's failure to apply the proper legal standard means the decision was incorrect when made and the error was ultimately prejudicial in light of the total record. The ordinary remedy in this situation is remand for retrial of Pruitt's claims, with the assistance of recruited pro bono counsel.

I. Background

A. Pretrial Proceedings

In January 2003 Benjamin Pruitt filed a petition to proceed in forma pauperis in the Central District of Illinois, accompanied by a pro se complaint against various employees at the Pontiac Correctional Center seeking relief under 42 U.S.C. § 1983 for violations of the Eighth Amendment.1 Pruitt alleged that Michael Mesch, a corrections officer at Pontiac, took him into a prison bathroom, ordered him to remove his clothes for a strip search, and sexually assaulted him by fondling his penis. Pruitt also claimed prison officials failed to respond to his complaints regarding Mesch's conduct.

Pruitt's complaint and petition were accompanied by a handwritten motion requesting appointment of counsel. The motion appears to have been copied from a sample form; Pruitt included instructional language in various places. For example, Pruitt stated in the motion that he "respectfully moves this court, pursuant to his legal claim, you should ask at this point that counsel be required to read your documents, consult with me, and amend my petition." The motion later states: "I have sought institutional review of this matter through the proper grievance procedures before this action was filed, at this point, state what, if any, action was taken on, concerning my grievances." Pruitt filed a second, identical motion in February 2003.

On March 31, 2003, the district court granted Pruitt's petition to proceed in forma pauperis but denied his motions for appointment of counsel. The judge's order denying counsel is brief:

Appointment of counsel is not warranted in this case. Neither the legal issues raised in the complaint nor the evidence that might support the plaintiff's claims [is] so complex or intricate that a trained attorney is necessary. It should additionally be noted that the court grants pro se litigants wide latitude in the handling of their lawsuits.

Pruitt's complaint was accepted and filed on April 30, 2003.

The defendants moved to dismiss. Pruitt responded with a four-page, typed document making coherent arguments and citing relevant case law. On its final page, Pruitt's response states: "Crafted by a Law Clerk at the request of Mr. Pruitt." Although the judge denied the motion to dismiss, he had the following observations about Pruitt's complaint:

The plaintiff's jumbled, sixty page complaint is very difficult to decipher. The plaintiff has attached numerous documents in the middle (Comp., p. 9-36) and at the end of his complaint. (Comp., p. 40-60) Many of [these] documents appear to have little or no relevance to the claims in the main body of plaintiff's complaint.

The judge concluded Pruitt was making three claims: (1) that Mesch sexually harassed him in violation of the Eighth Amendment; (2) that the other defendants

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failed to protect him from Mesch's attacks; and (3) that an unrelated disciplinary report and hearing violated Pruitt's equal protection and procedural due process rights. The judge dismissed the third claim but allowed the first two claims to proceed.

Pruitt filed a third motion for appointment of counsel on July 6, 2004. This time he submitted a typed and notarized motion accompanied by exhibits. One exhibit contained the results of tests Pruitt underwent while incarcerated to determine the grade in school to which his educational level corresponds. According to that report, Pruitt tested at a reading level of 8.5 and a math level of 3.9, for an average educational level just above that of a sixth grader (grade level 6.2).2 Also included were two letters he received in response to his effort to secure legal representation, 3 as well as two affidavits from Pruitt. One of Pruitt's affidavits states as follows:

I Benjamin Pruitt, B-55009, I am making a state-meat about this c/o Mr:Mesch, #3240, sexual-harassment me, (touching-my-private parts on my body), 5-day's a week. There are other inmate's that he do this too also but they are not talking about it because they believe that it will be a big problom with the c/o's down here, so the one's that I do have they will be my eyewitnesses....

On November 30, 2004, the district court denied Pruitt's motion in an order repeating verbatim the language of its March 2003 order.

On December 8, 2004, Pruitt appeared via video-conference before the district court for a brief pretrial hearing. During that hearing, the court attempted to determine the anticipated testimony of Pruitt's proposed witnesses. Pruitt responded generally:

That this same officer mentioned he came into the unit harassing me, and every time I would go on a walk where we would go to chow, my whole unit my celly was there and some other-I'm sorry. A lot of them I allege as witnesses they would verify this same officer who harassed me.

He later stated: "The only thing they can say that they see him harassed and they seen them take me to the bathroom. That's what they can verify. What happened in the bathroom they don't know." Pruitt expressed some confusion when the judge asked him about the exhibits he would like to use at trial. The conference concluded with the court setting a trial date of February 14, 2005.

On December 27, 2004, Pruitt filed his fourth and final motion for appointment of counsel. This motion is nearly identical to his third but was also accompanied by a two-page letter to the clerk's office. In the letter, Pruitt attempted to explain the content of the attached exhibits and to reiterate his plea for appointment of counsel.4A relevant sample:

[W]ith this attachment are a copy attach are showing the court's that the plaintiff's Benjamin Pruitt has a 6.2 in grade and has no knowledge of the law, nor do he has the ability to investigate the facts of the case, nor do he has the ability and/or locating interviewing the other

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inmate's which are (witnesses to the case of his (assaulted and harassed)....

On January 25, 2005, the district court denied Pruitt's final request for counsel, again using the identical language of its prior two orders. After a brief final pretrial by videoconference, trial began as scheduled on February 14.

B. Trial Proceedings

At the judge's prompting, Pruitt began his case with an opening...

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