Bracey v. Grondin

• Decision Date: 01 May 2013
• Docket Number: No. 12–1644.,12–1644.
• Citation: 712 F.3d 1012
• Parties: Larry BRACEY, Plaintiff–Appellant, v. James GRONDIN, et al., Defendants–Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

712 F.3d 1012

Larry BRACEY, Plaintiff–Appellant,

v.James GRONDIN, et al., Defendants–Appellees.

No. 12–1644.

United States Court of Appeals,Seventh Circuit.

Argued Feb. 27, 2013.

Decided March 15, 2013.

Rehearing Denied May 1, 2013.

Christopher W. Carmichael, Holland & Knight LLP, Chicago, IL, Mark P. Maciolek, Mnm Law Office, Madison, WI, for Plaintiff–Appellant.

Robert B. Bresette, Francis X. Sullivan, Office of the Attorney General, Wisconsin Department of Justice, Madison, WI, for Defendants–Appellees.

Before FLAUM, SYKES, and TINDER, Circuit Judges.

FLAUM, Circuit Judge.

Larry Bracey sued several corrections officers for the use of excessive force under the Eighth Amendment. Prison security cameras captured the incident, but the footage was ultimately erased when the cameras recorded over it about three days later. Bracey now appeals from the district court's denial of his motion requesting recruitment of counsel and its denial of his motion for spoliation sanctions. We affirm.

I. Background

A. Factual Background

Bracey, an inmate at the Wisconsin Secure Program Facility, suffered an injury in an altercation with corrections officers on July 29, 2005. The confrontation began when Bracey refused to exit his cell as requested by corrections officers executing a random search. Bracey ultimately relented when more officers arrived. They placed him in hand restraints and transferred Bracey to a holding cell.

Bracey's antics resumed upon arrival at the holding cell, however, when he prohibited the officers from removing the restraint on his left hand. (Officers had already removed his right hand from the restraints.) After several minutes of trying to talk Bracey into compliance, the officers pulled Bracey's restrained hand through the holding cell door to immobilize him and safely removed the final restraint. As a result, Bracey injured his forearm. The wound bled, soiling one officer's uniform.

After completion of the search and en route back to his regular cell, Bracey again became intransigent, repeatedly turning his head backward toward the officers in violation of prison policy.¹ He then, according to defendants, “aggressively jerked” his head toward Officer Eric Hunt, who responded with reactionary force by pinning Bracey against a nearby doorway. Bracey struggled, and the officers ultimately brought him down to the floor. After reapplying restraints, officers moved Bracey to a more secure part of the prison. This struggle inflicted a bump and quarter-sized bruise on Bracey's head.

Prison security cameras were positioned to record both incidents. These cameras operate on a loop, continuously recording information until their memory becomes full, which usually takes about three days. At that point, the cameras record over the oldest material. Prison policy at the time required download and preservation of security video only in certain situations. These situations did not include an officer's use of reactionary force unless the prisoner assaulted staff.

Two days later on August 1, Bracey filed an inmate complaint claiming Hunt “viciously attacked” him. During the investigation of this complaint, Bracey notified the prison that tapes of the incident probably exist. Bracey suggests he mentioned the recordings in his August 1 complaint, explaining that the “Offender Complaint included allegations ... that the incident was recorded on the Prison's video recording system.” In truth, Bracey did not explain the existence of the tapes until August 3, when the Inmate Complaint Examiner (“ICE”) interviewed him and took his written statement. The ICE dismissed the complaint and forwarded Bracey's statement to the warden for processing.

Also on August 1, the Security Director Designee received incident and conduct reports documenting the July 29 incident. After reviewing those reports, the designee found the staff's response adequate and did not download the video for preservation.

B. Procedural History

Bracey filed this lawsuit in 2010 alleging that corrections officers used excessive force in violation of his Eighth Amendment rights. He also alleged spoliation in defendants' failure to download and preserve the video from the prison security cameras. After filing his complaint, Bracey requested the court's assistance in recruiting counsel. 28 U.S.C. § 1915(e)(1). The district court concluded Bracey had made adequate efforts to find his own attorney but found the allegations sufficiently straightforward and Bracey sufficiently competent to handle the case himself. It denied the motion.

Proceeding pro se, Bracey requested information relating to the destruction of the videotapes. After prison officials referred to certain prison policies in responding to Bracey's interrogatories, Bracey requested the policies themselves. The prison refused, and the district court denied Bracey's motion to compel, citing the need to preserve prison security.

As trial approached, Bracey sought sanctions for spoliation of the video recording. Shortly thereafter, Bracey secured his own counsel, who renewed Bracey's request for spoliation sanctions. The district court ultimately denied this motion, refusing the adverse inference instruction because none of the individual defendants were involved in the decision not to preserve the video.

Bracey lost at trial. He now appeals both the denial of his motion to recruit counsel and the denial of his motion for spoliation sanctions.

II. Discussion

A. The District Court Did Not Abuse Its Discretion in Denying Bracey's Request for Counsel

District courts may ask an attorney to represent a litigant unable to pay for his own lawyer. § 1915(e)(1). To qualify, the indigent litigant must make reasonable efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir.2007) (en banc). If the litigant comes up short, then the district court must decide whether “given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993)). Importantly, the district court must consider both halves of this equation—the difficulty of the case and the competence of the litigant. Id. at 660. When reviewing the district court's determination on complexity and competency, we consider the reasonableness of the district court's conclusion in light of the evidence as it stood at the time of the district court's decision. Id. at 659.

We review denials of § 1915(e) motions for an abuse of discretion. Id. at 658. Thus, we affirm unless the district court has applied the wrong legal standard (or made other errors of law), made clearly erroneous factual findings, or rendered a clearly arbitrary decision without any support in the record. Id. Even then, an appellate court can only reverse when the absence of counsel prejudiced the litigant, which requires “a reasonable likelihood that the presence of counsel would have made a difference in the outcome of the litigation.” Id. at 659 (emphasis in original). The government does not challenge the district court's conclusion that Bracey made reasonable attempts to obtain counsel himself, and Bracey does not challenge the district court's findings regarding the quality of his pro se representation. Instead, Bracey emphasizes “the difficulties [he] faced as a prisoner attempting to gather evidence.”

Complexities anticipated (or arising) during discovery can justify a court's decision to recruit counsel. Id. at 655;see also Santiago v. Walls, 599 F.3d 749, 764 (7th Cir.2010). Bracey argues largely that the district court failed to consider the complexities involved in the investigation of the alleged spoliation of the videotapes. According to him, the district court's order makes no explicit mention of the spoliation issue when considering the complexity of the case. Thus, he continues, the district court decided his request for counsel without giving “significant weight” to this “very important factor.” Santiago, 599 F.3d at 763.

True, the district court's order denying the request for counsel did not explicitly comment on the spoliation issue, and the district court knew that issue existed when it ruled on the request.² But neither did the district court's analysis completely ignore discovery: “At the preliminary pretrial conference, plaintiff will be given the opportunity to ask questions he has about litigating his case and he will be instructed about how to use discovery techniques available to all litigants under the Federal Rules of Civil Procedure so that he can gather the evidence he needs to prove his case.” Given the deferential standard of review, this language suffices to show the district court considered the complexity of spoliation-related discovery in this case, particularly when the district court had previously reserved that spoliation issue for discovery. Moreover, while we have recognized cases involving medical expert testimony or state of mind requirements as legally complex, see Santiago, 599 F.3d at 761, we have found no case in this circuit identifying spoliation as a complex legal issue supporting recruitment of counsel. In fact, other circuits have not found an abuse of discretion in denying counsel in cases also involving spoliation. See Jennings v. Bradley, 419 Fed.Appx. 594 (6th Cir.2011) (non-precedential); Rhodes v. Robinson, 399 Fed.Appx. 160 (9th Cir.2010) (non-precedential); see also Brown v. Hertz, 437 Fed.Appx. 496, 500 (7th Cir.2011) (non-precedential) (rejecting necessity of counsel to make county employees “more responsive to discovery requests”). Thus, we conclude that the district court did not abuse its discretion in its consideration of the complexity of the case.

Bracey does not directly challenge his competence to litigate the case.³ He does, however, suggest that a lawyer would have allowed him access to certain prison policies by permitting “attorneys' eyes only” review. This deficiency, though, relates not to Bracey's competency but...