In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14‐1204
CRAIG A. CHILDRESS,
Plaintiff‐Appellant,
v.
ROGER E. WALKER, JR., et al.,
Defendants‐Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 3:12‐cv‐01230‐JPG — J. Phil Gilbert, Judge.
____________________
ARGUED FEBRUARY 20, 2015 — DECIDED MAY 21, 2015
____________________
Before RIPPLE, KANNE, and TINDER, Circuit Judges.
RIPPLE, Circuit Judge. Craig Childress brought this action
under 42 U.S.C. § 1983 against numerous administrators and
individuals affiliated with the Big Muddy River Correctional
Center (“BMRCC”) in Ina, Illinois. He alleged that those in‐
dividuals had violated his rights under the Eighth Amend‐
ment and the Due Process Clause of the Fourteenth
Amendment. Specifically, he claimed that, upon completion
of a prison‐sponsored reentry program, the program instruc‐
2 No. 14‐1204
tor delivered a computer disk containing Mr. Childress’s re‐
sume to the property officer, who in turn placed it in
Mr. Childress’s property box.
Mr. Childress later was discharged on mandatory super‐
vised release (“MSR”); one of the terms of his release was
that he could not possess any computer‐related material.
Following his release, a routine inspection of his living quar‐
ters revealed the envelope containing the computer disk,
and his release was revoked.
After serving his extended sentence, Mr. Childress, act‐
ing pro se, filed this action. The district court, on initial re‐
view under the Prison Litigation Reform Act (“PLRA”), 28
U.S.C. § 1915A, dismissed the suit. On reconsideration, the
court determined that Mr. Childress was not a prisoner
within the meaning of the PLRA but that his action never‐
theless should be dismissed on in forma pauperis review
pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).
The district court’s dismissal of Mr. Childress’s com‐
plaint was premature. His complaint set forth sufficient facts
to proceed against at least one of the defendants. Moreover,
he should have been granted the opportunity to amend his
complaint to cure any deficiencies in the remainder of his
claims. Finally, the district court failed to consider adequate‐
ly Mr. Childress’s request to recruit counsel. For these rea‐
sons, we reverse the court’s judgment and remand the case
for further proceedings.
No. 14‐1204 3
I
BACKGROUND1
A.
While Mr. Childress was serving a sentence at BMRCC
for attempted aggravated sexual assault, he participated in a
Lifestyle Redirection Program. The three‐week program is
intended to assist inmates with reentry into the community
and with finding employment. Defendant Danalyn Wilson is
the program instructor. It is the “policy, practice, and proce‐
dure” of the program to provide each participant with a
hardcopy of the participant’s resume and cover letter and to
forward a computer disk with those materials to the BMRCC
property room.2 This practice is known to BMRCC adminis‐
trative staff. Consistent with this practice, when
Mr. Childress completed the program on August 10, 2010, a
computer disk containing his cover letter and resume was
sent to the property room to be placed with his other belong‐
ings.
Mr. Childress was released from custody on August 19,
2010. One of the conditions of his release was that he not
“possess[] … computer related items.”3 Upon his release,
1 Because Mr. Childress’s complaint was dismissed for failure to state a
claim, we accept as true all facts alleged in his complaint and all reason‐
able inferences therefrom. See, e.g., Citadel Grp. Ltd. v. Wash. Reg’l Med.
Ctr., 692 F.3d 580, 591 (7th Cir. 2012). Moreover, because his complaint
was pro se, we construe it liberally and hold it to less stringent standards
than pleadings drafted with the assistance of counsel. Erickson v. Pardus,
551 U.S. 89, 94 (2007).
2 R.1 at 9.
3 Id. at 20.
4 No. 14‐1204
Mr. Childress was provided with his personal property, in‐
cluding an envelope that contained the computer disk from
the Lifestyle Redirection Program. The sealed envelope did
not bear any markings that indicated or suggested that it
contained a computer disk.
Fifteen days later, on September 3, 2010, agents of the Il‐
linois Department of Corrections (“IDOC”) conducted an
inspection of Mr. Childress’s immediate living area. During
that inspection, they discovered the still unopened envelope
containing the computer disk from the Lifestyle Redirection
Program. Mr. Childress was taken into custody for violating
the conditions of his release. He initially was housed at the
Statesville Correctional Center but, on November 16, 2010,
was transferred back to BMRCC. When Mr. Childress ar‐
rived at BMRCC, he was greeted by the Assistant Warden of
Programs, Ty Bates, who told Mr. Childress that there had
been two other incidents in which inmates had been taken
back into custody after follow‐up inspections uncovered
computer disks associated with prison programs. The fol‐
lowing month, Mr. Childress’s MSR was revoked following
a hearing.
B.
After Mr. Childress served his criminal sentence, he was
detained at the Treatment and Detention Facility in Rush‐
ville, Illinois, an institution administered by the Illinois De‐
partment of Human Services to house individuals held pur‐
suant to Illinois’s Sexually Violent Persons Commitment Act,
725 ILCS 207/1‐99. On December 3, 2012, while at Rushville,
Mr. Childress filed the present action, alleging that the pris‐
No. 14‐1204 5
on administration’s practice of placing computer disks in
inmates’ property subjected him to an unnecessary risk of re‐
incarceration in violation of the Eighth Amendment and of
the Due Process Clause of the Fourteenth Amendment. He
named as defendants several IDOC directors, wardens of
BMRCC, and other individuals affiliated with the Lifestyle
Redirection Program.4 Mr. Childress also filed a motion for
leave to proceed in forma pauperis and a motion to appoint
counsel. One week later, Mr. Childress filed a second motion
for appointment of counsel.
On February 20, 2013, the district court dismissed
Mr. Childress’s complaint for failure to state a claim and de‐
nied all pending motions (including the motions to appoint
counsel) as moot. The district court explained that it was re‐
quired under the PLRA “to conduct a prompt threshold re‐
view” of the merits of Mr. Childress’s claim.5 In undertaking
this analysis, it was unable to conclude that any defendant
knew that the placement of the computer disk in
Mr. Childress’s property would violate the conditions of his
release. “At most,” the court continued, “Plaintiff’s allega‐
tions indicate that the placement of the computer disk in his
property could have been a negligent act. A defendant can
never be held liable under § 1983 for negligence.”6 Addition‐
4 The IDOC directors named as defendants are S.A. Godinez,
Gladyse Taylor, Michael Randle, and Roger Walker; the wardens named
are John Evans, Robert Hilliard, William Peyton, and Ty Bates; other
prison personnel named are Angela Winsor and R. G. Eubanks. Ms. Wil‐
son, the Lifestyle Redirection Program instructor, also is named as a de‐
fendant, but is employed by Rend Lake College, not the BMRCC.
5 R.7 at 2.
6 Id. at 3.
6 No. 14‐1204
ally, Mr. Childress “had exclusive control over his property
items and could have easily found the computer disk. In‐
deed, it appears from the complaint that he knew he would
be given the disk upon completion of the Life Style program,
since he states that this was the regular practice.”7 Further‐
more, even if Ms. Wilson had violated Mr. Childress’s rights
by giving him the computer disk, the court explained that
this would not translate into liability on the
part of the wardens, IDOC Directors, or other
Defendants in supervisory positions. The doc‐
trine of respondeat superior is not applicable to
§ 1983 actions; to be held individually liable, a
defendant must be “personally responsible for
the deprivation of a constitutional right.”[8]
The district court therefore dismissed Mr. Childress’s com‐
plaint with prejudice, indicated that the dismissal would
count as a “strike[]” under the provisions of 28 U.S.C.
§ 1915(g), and ordered the clerk to close the case and enter
judgment in favor of the defendants.9 It denied the remain‐
ing motions as moot.
Mr. Childress then filed a motion seeking to alter, set
aside, and vacate the judgment under Federal Rule of Civil
Procedure 59(e). He argued that he was not a prisoner for
purposes of the PLRA, and that, therefore, the district court
should not have subjected his complaint to PLRA pre‐
7 Id.
8 Id. at 4 (quoting Sanville v. McCaughtry, 266 F.3d 724, 740 (7th Cir.
2001)).
9 Id. at 5.
No. 14‐1204 7
screening. Mr. Childress also maintained that there were er‐
rors in the district court’s substantive analysis and requested
that he be permitted to amend his complaint.
The district court granted in part and denied in part
Mr. Childress’s motion. The court agreed that Mr. Childress
was not a prisoner for purposes of the PLRA. Nevertheless,
because Mr. Childress had sought leave to proceed in forma
pauperis, his complaint was subject to review under 28
U.S.C. § 1915(e)(2), which requires the court to dismiss any
in forma pauperis action that “fails to state a claim on which
relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The
court therefore reexamined the pleadings and found “no er‐
ror in its conclusion that the factual allegations did not indi‐
cate that any Defendant’s conduct rose to the level of uncon‐
stitutional deliberate indifference.”10
Mr. Childress filed a timely notice of appeal.
II
DISCUSSION
On appeal, with the assistance of counsel, Mr. Childress
submits that the district court committed several errors. He
first maintains that his complaint did state a claim, and,
therefore, it should not have been dismissed under 28 U.S.C.
§ 1915(e)(2)(B)(ii). Even if his complaint were deficient in
some manner, Mr. Childress contends that the district court
should have granted him leave to amend. Finally,
10 R.16 at 6.
8 No. 14‐1204
Mr. Childress argues that the district court committed legal
error in failing to consider his motion to appoint counsel.
A.
We turn first to the allegations of his complaint.
Mr. Childress submits that he stated a claim for violations of
his substantive and procedural due process rights under the
Fourteenth Amendment as well as for violations of the
Eighth Amendment.
Mr. Childress’s primary argument on appeal is that the
defendants’ actions violated his substantive due process
rights. The Supreme Court has stated, however, that plain‐
tiffs should resort to the substantive guarantees of the Due
Process Clause for relief only when there is not “a particular
Amendment [that] provides an explicit textual source of
constitutional protection against a particular sort of govern‐
ment behavior.” Cnty. of Sacramento v. Lewis, 523 U.S. 833,
842 (1998) (internal quotation marks omitted); accord Arm‐
strong v. Squadrito, 152 F.3d 564, 569 (7th Cir. 1998) (quoting
Cnty. of Sacramento, 523 U.S. at 842). The Eighth Amendment
is the primary source of constitutional protection for incar‐
cerated individuals. See, e.g., Ingraham v. Wright, 430 U.S. 651,
664–68 (1977) (describing the history of the Eighth Amend‐
ment and noting that “[t]he primary purpose of [the Cruel
and Unusual Punishments Clause] has always been consid‐
ered, and properly so, to be directed at the method or kind
of punishment imposed for the violation of criminal stat‐
utes” (second alteration in original) (internal quotation
marks omitted)). Consequently, we evaluate Mr. Childress’s
complaint under the standards of the Eighth Amendment.
No. 14‐1204 9
A plaintiff states a claim for an Eighth Amendment viola‐
tion if he is detained in jail for longer than he should have
been due to the deliberate indifference of corrections offi‐
cials. See Burke v. Johnston, 452 F.3d 665, 667 (7th Cir. 2006)
(observing that the plaintiff’s allegations that “he was de‐
tained in jail longer than he should have been due to the ‘de‐
liberate indifference and delay’ of DOC officials,” “if proved,
would establish a violation of Burke’s Eighth Amendment
right to be free from cruel and unusual punishment”); Camp‐
bell v. Peters, 256 F.3d 695, 700 (7th Cir. 2001) (holding that
the plaintiff’s allegations that he had been imprisoned too
long due to the deliberate indifference of prison officials
stated a claim for a violation of the Eighth Amendment).
Here, Mr. Childress maintains that the defendants’ deliber‐
ate indifference resulted in the deprivation of his liberty in‐
terests because the defendants “knew that the conditions of
his release prohibited him from possessing computer‐related
materials, but that they nevertheless placed, or condoned a
policy which caused to be placed, a computer disk in his exit
property in a sealed envelope.”11
The State, on behalf of the defendants,12 perceives no er‐
ror in the district court’s approach. It contends that the
touchstone of deliberate indifference is subjective awareness:
it is not sufficient to allege that the correctional officers
should have recognized a risk; rather, they personally must
have perceived and ignored the risk. In the State’s view,
11 Appellant’s Br. 28 (citations omitted).
12 Because the district court dismissed the action without any responsive
pleadings by the defendants, we invited the Attorney General of Illinois
to participate in the briefing. We thank the Attorney General for her
submission on their behalf.
10 No. 14‐1204
there is no evidence, however, that the BMRCC administra‐
tive staff knew of this practice or knew the potential conse‐
quences that it had for Mr. Childress. Moreover, the State
continues, there are only two people who personally partici‐
pated in the placement of the computer disk in
Mr. Childress’s possessions: (1) Ms. Wilson, the instructor of
the Lifestyle Redirection Program, and (2) the BMRCC prop‐
erty‐room officer—a nondefendant—who placed the disk
with Mr. Childress’s property. Mr. Childress did not allege
that Ms. Wilson was aware of the conditions of his parole;
therefore, the State concludes, Ms. Wilson could not have
known that placing the disk in his possessions put his MSR
in jeopardy. Accordingly, the State maintains that the district
court did not err in dismissing Mr. Childress’s complaint.
The State—like the district court—misapprehends both
the bases for § 1983 liability and the substance of Mr. Chil‐
dress’s allegations. Although the State and the district court
are correct that an individual must be personally responsible
for a constitutional deprivation in order to be liable, personal
responsibility is not limited to those who participate in the
offending act, here placing the disk with Mr. Childress’s
property. Liability extends to those who, having a duty un‐
der the Constitution to the plaintiff, “‘act[] or fail[] to act
with a deliberate or reckless disregard of plaintiff’s constitu‐
tional rights.’” Brokaw v. Mercer Cnty., 235 F.3d 1000, 1012
(7th Cir. 2000) (quoting Smith v. Rowe, 761 F.2d 360, 369 (7th
Cir. 1985)). Liability can also attach “’if the conduct causing
the constitutional deprivation occurs at her direction or with
her knowledge or consent.’” Id. (quoting Smith, 761 F.2d at
369); Black v. Lane, 22 F.3d 1395, 1401 (7th Cir. 1994) (quoting
same); see also Lewis v. Downey, 581 F.3d 467, 472 (7th Cir.
2009) (noting, in the context of an excessive force claim, that
No. 14‐1204 11
an officer is personally responsible, and thus liable under
§ 1983, if he knows about another’s constitutional violation,
has a realistic opportunity to prevent it, but deliberately or
recklessly fails to do so); Fisher v. Lovejoy, 414 F.3d 659, 662
(7th Cir. 2005) (reiterating that “a prison official may be lia‐
ble ‘only if he knows that inmates face a substantial risk of
serious harm and disregards that risk by failing to take rea‐
sonable measures to abate it’” (quoting Farmer v. Brennan,
511 U.S. 825, 847 (1994)). In the case of those responsible for
setting policy, liability will result from the institution of a
“policy that, when enforced, causes a constitutional depriva‐
tion.” Brokaw, 235 F.3d at 1013; Butera v. Cottey, 285 F.3d 601,
605 (7th Cir. 2002). Thus, allegations that a prison adminis‐
trator knew that the conditions of a prisoner’s mandatory
release included a ban on computer‐related material, but
nevertheless instituted, condoned, or willfully turned a blind
eye to a practice that placed computer‐related material
among prisoners’ possessions, state a claim for relief under
the Eighth Amendment.
These are the precise allegations that Mr. Childress sets
forth in his complaint. He alleges that there is a regular prac‐
tice of placing computer disks with inmates’ property.13
Moreover, he alleges that prison administrators knew of this
practice and knew that this practice put at least some recent‐
ly released prisoners in jeopardy of losing their freedom, but
nevertheless did not alter, change, or otherwise intervene to
prevent the harm. Specifically, on his return to BMRCC in
November 2010, Assistant Warden Bates admitted to
13 See R.1 at 9 (“The policy, practice, and procedure of said program[’]s
curriculum was to provide … a floppy computer disk which was for‐
warded to the property room … .”).
12 No. 14‐1204
Mr. Childress that two other inmates had been re‐
incarcerated on the basis of “the same policies, practice, and
procedures regarding floppy disk[s] associated with institu‐
tional programs being placed in the outgoing property of
inmates by IDOC Employees.”14
While acknowledging that these statements have to be
accepted as true, the State argues that they “fall far short of
establishing that Bates or any other defendant disregarded a
substantial risk of harm to Childress.”15 Specifically, the
State maintains that they do not establish that Assistant
Warden Bates knew about the practice of the Lifestyle Redi‐
rection Program or that he knew about the conditions of
Mr. Childress’s release.
We cannot accept this argument. To survive dismissal, a
plaintiff’s complaint “need only ‘give the defendant fair no‐
tice of what the … claim is and the grounds upon which it
rests.’” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Specific facts
are not necessary … .” Id. Here, Mr. Childress alerts Assis‐
tant Warden Bates to his claim and to the basis of that claim:
Assistant Warden Bates, as “Assistant Warden of Pro‐
grams,”16 was familiar with the practices of the Lifestyle Re‐
direction Program; he knew that the practices of the Lifestyle
Redirection Program, or of similar programs, were causing
recently released inmates to lose their freedom, but did noth‐
ing to prevent this harm; indeed he “continued to adhere to[]
14 Id. at 10.
15 Att’y Gen.’s Br. 16.
16 R.1 at 10.
No. 14‐1204 13
and follow these same policies, practices, and procedures all
to the detriment and deprivation of the plaintiff[’]s Constitu‐
tional Rights.”17 These allegations satisfy the notice pleading
requirement of Federal Rule of Civil Procedure 8(a)(2).
B.
Whether these allegations are sufficient to state a claim
against other members of the BMRCC administrative staff is
a question that we need not reach at this juncture because
we conclude that the district court abused its discretion in
denying Mr. Childress leave to amend his complaint. See
Bausch v. Stryker Corp., 630 F.3d 546, 561 (7th Cir. 2010) (“We
review the district court’s denial of a request to vacate the
judgment and for leave to file an amended complaint under
an abuse of discretion standard.”).
In Luevano v. Wal‐Mart Stores, Inc., 722 F.3d 1014 (7th Cir.
2013), we held that, when a court dismisses a complaint sua
sponte on in forma pauperis review, the court must allow
that plaintiff the same opportunity to amend his complaint
as a fee‐paying plaintiff would have received. See id. at 1022–
23. We outlined the contours of a plaintiff’s right to amend
in Bausch. We explained that,
[a]s a general matter, Rule 15 ordinarily
requires that leave to amend be granted at least
once when there is a potentially curable prob‐
lem with the complaint or other pleading. A
plaintiff is entitled to amend the complaint
once as a matter of right, Fed. R. Civ. P. 15(a),
17 Id. at 11.
14 No. 14‐1204
and a court should “freely give leave [for a par‐
ty to file an amended complaint] when justice
so requires.” Fed. R. Civ. P. 15(a)(2). A district
court may deny leave to file an amended com‐
plaint in the case of “undue delay, bad faith or
dilatory motive on the part of the movant, re‐
peated failure to cure deficiencies by amend‐
ments previously allowed, undue prejudice to
the opposing party by virtue of allowance of
the amendment, [and] futility of amendment.”
However, while a court may deny a motion for
leave to file an amended complaint, such deni‐
als are disfavored. As we said in Foster [v.
DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)],
“[d]istrict courts routinely do not terminate a
case at the same time that they grant a defend‐
ant’s motion to dismiss; rather, they generally
dismiss the plaintiff’s complaint without prej‐
udice and give the plaintiff at least one oppor‐
tunity to amend her complaint.”
Bausch, 630 F.3d at 562 (second, third, and fifth alterations in
original) (citation omitted); see also Alioto v. Town of Lisbon,
651 F.3d 715, 721 (7th Cir. 2011) (“[A] motion to dismiss un‐
der Rule 12(b)(6) is not a responsive pleading and so, if an
answer has not been filed, a plaintiff ordinarily retains the
ability to amend his complaint once as a matter of right,
even after a court grants a motion to dismiss.”). Had the
court followed the appropriate course, therefore, Mr. Chil‐
dress should have been allowed to amend his complaint
against the remaining defendants to aver more specifically
their knowledge of the practices of the Lifestyle Redirection
No. 14‐1204 15
Program as well as their knowledge of the conditions of
Mr. Childress’s release.
Here, following the district court’s initial review under
the PLRA, it not only dismissed the complaint, but also en‐
tered judgment against Mr. Childress. “Once final judgment
has been entered in a case, ‘the district court lacks jurisdic‐
tion to entertain a motion for leave to amend the complaint
unless the plaintiff also moves for relief from the judg‐
ment.’” Foster, 545 F.3d at 584 (quoting Camp v. Gregory, 67
F.3d 1286, 1289 (7th Cir. 1995)).
We confronted a similar situation in Foster. There, as
here, the district court dismissed the complaint and entered
judgment in favor of the defendants without affording the
plaintiff the opportunity to amend the complaint. The plain‐
tiff, like Mr. Childress, filed an unsuccessful motion to alter
the district court’s judgment under Federal Rules of Civil
Procedure 59(e) and 60(b), coupled with a motion for leave
to file an amended complaint. See id. at 583.18 In evaluating
the district court’s actions in Foster, we noted that
[r]elief under Rules 59(e) and 60(b) are
extraordinary remedies reserved for the excep‐
tional case, and “the mere desire to expand al‐
legations of a dismissed complaint does not, by
itself, normally merit lifting the judgment.” Yet
the district court left the plaintiff with little re‐
course … because it simultaneously granted
the defendants’ motion to dismiss and termi‐
nated the case.
18 Mr. Childress’s motion invoked only Rule 59(e), and his request to file
an amended complaint appeared in his Rule 59(e) motion.
16 No. 14‐1204
Id. at 584 (citation omitted) (quoting Camp, 67 F.3d at 1290).
In Foster, we determined that the district court’s premature
dismissal, coupled with its failure to “provide any explana‐
tion for why it denied the motion to amend” constituted an
abuse of discretion. See id. at 584–85.
In the present case, the district court’s denial of
Mr. Childress’s Rule 59(e) motion was not completely bereft
of explanation. The court acknowledged that it had proceed‐
ed under the incorrect statute, but nevertheless determined
that, applying the standards of 28 U.S.C. § 1915, the same
result obtained: “Having re‐examined the pleadings, the
Court finds no error in its conclusion that the factual allega‐
tions did not indicate that any Defendant’s conduct rose to
the level of unconstitutional deliberate indifference.”19 As
we have demonstrated, however, in its initial assessment of
Mr. Childress’s complaint, the district court read his allega‐
tions too narrowly and also employed a cramped under‐
standing of the scope of § 1983 liability. The “district court’s
application of an erroneous view of the law is by definition
an abuse of discretion.” Am. Civil Liberties Union of Ill. v. Al‐
varez, 679 F.3d 583, 589 (7th Cir. 2012) (internal quotations
marks omitted). The district court, therefore, abused its dis‐
cretion in denying Mr. Childress’s Rule 59 motion, which
included his request to file an amended complaint.
C.
Lastly, we turn to Mr. Childress’s claim that the district
court should have recruited counsel to act on his behalf. On
19 R.16 at 6.
No. 14‐1204 17
two occasions prior to the district court’s dismissal of his
complaint, Mr. Childress asked the court to appoint counsel.
The district court did not act on those requests, but, instead,
denied all of Mr. Childress’s remaining motions as moot fol‐
lowing its dismissal of the complaint.
Section 1915(e)(1) of Title 28 provides that “[t]he court
may request an attorney to represent any person unable to
afford counsel.” We recently reiterated the standards to be
applied by the district court in determining whether it
should act under § 1915(e)(1):
In Pruitt [v. Mote, 503 F.3d 647 (7th Cir. 2007)
(en banc),] we refined the standards for evalu‐
ating whether to recruit counsel. If a plaintiff
makes a reasonable attempt to secure counsel,
the court must examine “whether the difficulty
of the case—factually and legally—exceeds the
particular plaintiff’s capacity as a layperson to
coherently present it.” Pruitt, 503 F.3d at 655.
This inquiry does not focus solely on the plain‐
tiff’s ability to try his case—it also includes
other “tasks that normally attend litigation”
such as “evidence gathering” and “preparing
and responding to motions.” Id. When ruling
on a motion to recruit counsel, the court should
take account of all evidence in the record rele‐
vant to the plaintiff’s capacity to litigate.
Navejar v. Iyiola, 718 F.3d 692, 696 (7th Cir. 2013) (per curi‐
am). There is no question that the court abused its discretion
in failing to address Mr. Childress’s motion for appointment
of counsel. We previously have recognized that “[t]he failure
of the trial court to exercise its discretion at all—in this case,
18 No. 14‐1204
in failing to rule on appellant’s request for appointment of
counsel—constitutes an abuse of discretion.” Brown‐Bey v.
United States, 720 F.2d 467, 471 (7th Cir. 1983). Moreover, we
believe that Mr. Childress was prejudiced by the district
court’s failure to recruit counsel.
“The ordinary remedy in this situation is [to] remand”
and allow the plaintiff to proceed “with the assistance of re‐
cruited pro bono counsel.” Pruitt, 503 F.3d at 650. Here,
however, the district court never acted on Mr. Childress’s
motion for the appointment of counsel. Given that the stat‐
ute authorizing the recruitment of counsel requires the exer‐
cise of discretion, see id. at 658, we believe the district court
should consider this issue in the first instance. Moreover, it
should act on this motion before giving Mr. Childress an
opportunity to file an amended complaint.
In considering whether to recruit counsel on behalf of
Mr. Childress, the district court must undertake, of course,
“the individualized analysis that Pruitt requires.” Navejar,
718 F.3d at 697. Specifically, the court must consider
“whether the difficulty of the case—factually and legally—
exceeds [Mr. Childress’s] capacity as a layperson to coher‐
ently present it to the judge or jury himself.” Pruitt, 503 F.3d
at 655. This inquiry must be “a practical one, made in light of
whatever relevant evidence is available on the question.” Id.
Such evidence may include any physical, intellectual, or
psychological limitations the plaintiff may have, see id., as
well as the practical problems the plaintiff may encounter in
gathering evidence from individuals employed by an institu‐
tion in which he is no longer housed, see Navejar, 718 F.3d at
698. Here, with respect to the latter requirement, the district
court must determine whether the guiding hand of counsel
No. 14‐1204 19
is necessary to ensure that the complaint reflects an adequate
conception of personal liability in § 1983 actions. Specifically,
the court must determine whether Mr. Childress can, from
the confines of his present institutional situation, adequately
investigate and articulate, in accordance with established
practices of § 1983 liability, the familiarity of each defendant
with the practices of the Lifestyle Redirection Program and
with the conditions of mandatory release placed on offend‐
ers like Mr. Childress.
Conclusion
For these reasons, we conclude that the district court
erred in dismissing Mr. Childress’s initial complaint and en‐
tering judgment in favor of the defendants. We therefore re‐
verse that judgment, with orders to reinstate Mr. Childress’s
initial complaint, consider his motion to recruit counsel, and
allow him to file an amended complaint.
REVERSED AND REMANDED