In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 17-1621
CRAIG ARMSTRONG,
Plaintiff-Appellant,
v.
JAMES KRUPICZOWICZ, et al., 1
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 16 C 08263 — Manish S. Shah, Judge.
____________________
SUBMITTED OCTOBER 18, 2017 ∗ — DECIDED NOVEMBER 3, 2017
____________________
1The case caption has been altered to reflect that Armstrong did not
name the Villa Park Police Department as a defendant in his amended
complaint.
∗ The defendants were not served with process in the district court
and are not participating in this appeal. We have agreed to decide the
case without oral argument because the appellant’s brief and the record
adequately present the facts and legal arguments, and oral argument
would not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
2 No. 17-1621
Before FLAUM, RIPPLE, and ROVNER, Circuit Judges.
ROVNER, Circuit Judge. Craig Armstrong appeals the de-
nial of his motion for post-judgment relief in this lawsuit al-
leging that he was wrongfully arrested and prosecuted for
violating the Illinois Sex Offender Registration Act. The dis-
trict court, which dismissed Armstrong’s original and
amended complaints before service, concluded that relief
under Federal Rule of Civil Procedure 59(e) was time-barred
and that Armstrong did not raise valid grounds for relief
under Rule 60(b). We disagree, as the district court’s analysis
of Armstrong’s request for the assistance of counsel—as reit-
erated in his post-judgment motion—was flawed. Thus we
vacate and remand for further proceedings.
Armstrong was convicted in October 2011 of failing to
register as a sex offender, 730 ILCS § 150/6, but that convic-
tion was later reversed on appeal. The Appellate Court of
Illinois concluded that Armstrong’s earlier plea agreement
for the offense of unlawful restraint, 720 ILCS § 5/10-3, did
not provide a factual basis for requiring him to register as a
sex offender, see 730 ILCS § 150/2(B)(1.5). Thus, the court de-
cided, Armstrong was not guilty of failing to register.
See People v. Armstrong, 50 N.E.3d 745, 749–51 (Ill. App. Ct.
2016). The state then dropped the charges against Arm-
strong.
In this lawsuit, brought under 42 U.S.C. § 1983, Arm-
strong alleges that police officers who arrested and charged
him with failure to register knew at the time that he was not
required to register as a sex offender. He contends that po-
lice ignored and concealed exculpatory evidence, falsified
documents to make it appear as though he had to register,
No. 17-1621 3
and propelled his prosecution despite knowing of his inno-
cence.
This case is one of thirteen lawsuits Armstrong has filed
in the Northern District of Illinois relating to his arrest, pros-
ecution, and conviction for failing to register as a sex offend-
er; most were dismissed for failure to comply with technical
procedural rules. But he received a decision on the merits
when he raised claims similar to the ones he pursues in this
case in a nearly identical complaint he filed in 2014, before
his conviction was overturned. District Judge Robert M.
Dow, Jr., dismissed Armstrong’s Fourth Amendment claims
for unlawful arrest as untimely and the remainder of his
claims as barred by the rule against collateral challenges to
convictions found in Heck v. Humphrey, 512 U.S. 477 (1994).
See Armstrong v. Villa Park Police Dep’t, No. 14 CV 09086
(N.D. Ill. Feb. 17, 2015). We dismissed Armstrong’s appeal of
that decision (No. 15-1533) for his failure to pay the required
filing fee. See CIR. R. 3(b).
When he filed his first complaint in this case, Armstrong
sought leave to proceed without prepaying the filing fee; he
also filed two motions asking the district court to recruit a
lawyer to help him. The district court (Judge Manish S.
Shah) granted leave to proceed in forma pauperis and
screened Armstrong’s complaint as required by 28 U.S.C.
§ 1915(e)(2)(B). The court concluded that the false-arrest
claim already had been litigated before Judge Dow, and that
the other allegations did not state a claim for a violation of
due process or the improper withholding of exculpatory ev-
idence, see Brady v. Maryland, 373 U.S. 83 (1963). The court
gave Armstrong leave to replead and said that the motions
for court-recruited counsel were “entered and continued and
4 No. 17-1621
[would] be addressed if plaintiff files an amended com-
plaint.”
Armstrong filed an amended complaint alleging essen-
tially the same facts. The district judge again dismissed the
complaint under 28 U.S.C. § 1915(e)(2)(B), this time with
prejudice. As for the pending motions for recruitment of
counsel, the court simply said that Armstrong “was given
one opportunity to amend, but was unable to state a claim.
… The motions for attorney representation … are denied.”
The district court entered judgment on January 12, 2017,
but granted Armstrong until March 15 to file a notice of ap-
peal. In the meantime, on February 21, Armstrong filed a
post-judgment motion invoking Federal Rules of Civil Pro-
cedure 59(e) and 60(b). In the motion Armstrong pressed his
allegations of police misconduct and suggested that counsel
should have been recruited for him, arguing that the district
court could “clearly see” that he needed legal help from the
many cases he already had lost. But he also appeared to be
confused about which of his cases he was litigating: the cap-
tion listed the case numbers from both the case assigned to
Judge Dow (14 CV 09086) and the later (current) case as-
signed to Judge Shah (16 CV 08263), and it discussed several
decisions by Judge Dow.
The district court denied the motion on February 27,
2017, concluding that under Rule 59(e), the motion was un-
timely because it was filed more than 28 days after entry of
judgment. Further, Armstrong had not identified any reason
under Rule 60(b)(1), (2), or (3) for granting relief from the
judgment, such as mistake, surprise, excusable neglect, new
evidence, or misrepresentation. Instead, Armstrong “simply
argue[d] that the complaint should not have been dismissed
No. 17-1621 5
because the defendants violated plaintiff’s constitutional
rights, and counsel should have been recruited for plaintiff.”
The court did not expressly consider whether there was “any
other reason that justifie[d] relief,” for purposes of Rule
60(b)(6).
On March 22, 2017, Armstrong filed a notice of appeal of
the decision “entered on 2-27-2017,” that is, the denial of his
post-judgment motion. If he intended to appeal the underly-
ing dismissal as well, he was out of time. The district judge
had extended the time to file a notice of appeal from the un-
derlying judgment only to March 15 (the maximum), and
Armstrong had not filed a timely Rule 59(e) motion that
paused the clock. We therefore notified Armstrong that the
notice was timely only as to the denial of post-judgment re-
lief. See FED. R. APP. P. 4(a); Bell v. McAdory, 820 F.3d 880,
882–83 (7th Cir. 2016).
On appeal, Armstrong challenges the denial of his post-
judgment motion only obliquely, as most of his brief relates
to decisions by other judges in his other lawsuits. But he
does reprise his assertion that he needs legal assistance, say-
ing that “the court is suppose[d] to help” him and that he is
“not attorney” and does not “fully understand civil law.”
We construe Armstrong’s brief generously, see Anderson v.
Hardman, 241 F.3d 544, 545 (7th Cir. 2001), and understand
him to be challenging, among other things, the district
court’s rejection of his requests for counsel, an issue Arm-
strong raised in the post-judgment motion that is the subject
of this appeal.
We are mindful of the stringent standards in place for re-
viewing the denial of a motion under Federal Rule of Civil
Procedure 60(b), as well as for the denial of court-recruited
6 No. 17-1621
counsel. See Trade Well Int’l v. United Cent. Bank, 825 F.3d 854,
859 (7th Cir. 2016) (explaining abuse-of-discretion standard
for reviewing motions under Rule 60(b)); Henderson v. Ghosh,
755 F.3d 559, 564 (7th Cir. 2014) (explaining same standard
for reviewing motions to recruit counsel). Still, a district
court abuses its discretion by failing to adequately address a
request for counsel, see Childress v. Walker, 787 F.3d 433, 443
(7th Cir. 2015), and that is what the court here did.
In Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en
banc), we explained that a district court faced with a request
for counsel must ask two questions: “(1) [H]as the indigent
plaintiff made a reasonable attempt to obtain counsel or
been effectively precluded from doing so; and if so, (2) given
the difficulty of the case, does the plaintiff appear competent
to litigate it himself?” Id. The district court in this case did
not ask either question; instead it promised to address the
motion when Armstrong amended his complaint, but did
not. The court’s reason for denying counsel at that point,
that Armstrong was “unable to state a claim,” is not a suffi-
cient reason under Pruitt to decline to recruit counsel. In fact
a litigant’s difficulty stating a claim, where the facts suggest
a possible basis for relief, may weigh in favor of recruiting
counsel. The court’s failure to engage in the inquiry required
by Pruitt was an abuse of discretion. See Childress, 787 F.3d
at 443. Therefore, the district court also abused its discretion
when it declined to reconsider its ruling, and apply the ap-
propriate legal standard, in ruling on the post-judgment mo-
tion.
Still, we will not disturb a decision to deny court-
recruited counsel unless “there is a reasonable likelihood
that the presence of counsel would have made a difference
No. 17-1621 7
in the outcome of the litigation.” Henderson, 755 F.3d at 564
(quoting Pruitt, 503 F.3d at 659). Here, that standard is met.
Contrary to the district court’s assertions, the facts in Arm-
strong’s amended complaint suggest at least two possible
bases for relief. First, Armstrong alleged that defendants hid
evidence that was not publicly available and that might have
exonerated him or prevented his arrest in the first place,
namely, a fax sent to one of the police-officer defendants be-
fore Armstrong’s arrest, stating that there was no order to
register as a sex offender on file for him. These facts suggest
a due-process claim against the officer for concealing excul-
patory evidence in violation of Brady, see Steidl v. Fermon, 494
F.3d 623, 630–31 (7th Cir. 2007). But the district court appar-
ently overlooked this possibility, saying only that the
amended complaint “no longer asserts a claim for the failure
to disclose exculpatory evidence.”
Second, Armstrong alleged that the defendants fabricat-
ed evidence, lied to secure an indictment, and pursued the
charges against him despite knowing of his innocence; he
says these actions led to his conviction, which later was
overturned. These facts point to the tort of malicious prose-
cution under Illinois law. See Colbert v. City of Chicago, 851
F.3d 649, 654–55 (7th Cir. 2017), petition for cert. filed (U.S.
Oct. 20, 2017) (No. 17-595). Although the district judge ana-
lyzed Armstrong’s claim that defendants “fabricated evi-
dence,” he took Armstrong at his word that he was asserting
a “due process” theory (and not, the judge wrote in paren-
theses, either false arrest or malicious prosecution) and de-
termined that Armstrong failed to state a claim because he
did not allege that the fabricated evidence was used to de-
prive him of his liberty.
8 No. 17-1621
But of course, “it is factual allegations, not legal theories,
that must be pleaded in a complaint.” Whitaker v. Milwaukee
Cty., 772 F.3d 802, 808 (7th Cir. 2014); see Avila v. CitiMort-
gage, Inc., 801 F.3d 777, 783 (7th Cir. 2015). An imperfect
statement of a legal theory is not grounds for dismissal. John-
son v. City of Shelby, 135 S. Ct. 346, 346 (2014).
We express no opinion about Armstrong’s ability to state
either claim—or any others—plausibly, nor do we express
an opinion about the availability of any affirmative defenses.
Still, a lawyer might be able to better articulate the claims for
the district court’s consideration.
The district court had the opportunity to reexamine
Armstrong’s request for attorney representation when Arm-
strong filed his post-judgment motion that argued, in the
district court’s words, that “counsel should have been re-
cruited.” In its brief order, however, the court concluded
that Armstrong had not raised any grounds for relief from
judgment. But improper handling of a request for counsel
can be a reason to provide relief from judgment under Rule
60(b). See Davis v. Moroney, 857 F.3d 748, 750–52 (7th Cir.
2017) (holding that extraordinary circumstances justified re-
lief from judgment under Rule 60(b)(6) where, in addition to
plaintiff’s confusion with litigation process, “his difficulty in
litigating [the] case … stemmed from the district court’s
handling” of his motions for counsel); Donald v. Cook Cty.
Sheriff’s Dep’t, 95 F.3d 548, 554 (7th Cir. 1996) (same in case
where court’s “own delay in ruling on” plaintiff’s motions
for recruitment of counsel contributed to plaintiff’s difficulty
litigating).
As we have said, the district court’s failure to engage in
the inquiry required by Pruitt was an abuse of discretion,
No. 17-1621 9
and therefore, the denial of the post-judgment motion chal-
lenging the denial of attorney representation was also erro-
neous. In ruling on that motion the district court, again, did
not examine whether recruitment of counsel had been war-
ranted under the Pruitt standard. Though the district court
must be the one to engage in that inquiry in the first in-
stance, we note that one of Armstrong’s motions lists six at-
torneys he contacted about representing him, and that, as the
district court itself recognized, he has not shown that he is
competent to file a complaint that plainly sets forth his
claims. His history of filing procedurally inadequate law-
suits and his clear confusion in litigating his claims also bear
on the question of his ability to litigate. Because his requests
for counsel were all but unanswered, and the denial of coun-
sel was potentially fatal to his claims, he has presented the
extraordinary circumstances that justify relief from the
judgment. We recommend that, on remand, the district court
strongly consider recruiting counsel for Armstrong.
On that note, we recognize that out of Armstrong’s
twelve other lawsuits, only one other case is still pending:
Armstrong v. 18th Jud. Cir. Ct. of DuPage Cty., No. 17 CV 0075,
before Judge John Z. Lee. Armstrong has been assigned a re-
cruited attorney in that case, which appears to involve some
overlapping issues but different defendants. Therefore, if
this case survives the pleading stage on remand, the district
court should consider whether it would be appropriate to
assign both cases to the same judge pursuant to the North-
ern District of Illinois’ Local Rule 40.4 or consolidate them
under Federal Rule of Civil Procedure 20(a)(2).
10 No. 17-1621
We VACATE the order denying Armstrong’s post-
judgment motion and REMAND for further proceedings
consistent with this opinion.