In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2106
JOSEPH WILBORN,
Plaintiff-Appellant,
v.
DAVID EALEY, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Illinois.
No. 13-cv-70 — J. Phil Gilbert, Judge.
____________________
ARGUED SEPTEMBER 27, 2017 — DECIDED FEBRUARY 7, 2018
____________________
Before RIPPLE, SYKES, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Under the Eighth Amendment’s
protection against “cruel and unusual punishments,” con-
victed prisoners must receive a minimum level of care. The
Eighth Amendment prohibits prison staff from subjecting in-
mates to excessive force without a legitimate penological pur-
pose, from deliberately failing to prevent other staff from us-
ing unlawful force, and from acting with deliberate indiffer-
ence to inmates’ serious medical needs. In this case, inmate
2 No. 16-2106
Joseph Wilborn was injured in a fight with Menard Correc-
tional Center officers. The fight left Wilborn with bruises, a
laceration, and a dislocated shoulder. He sued the correc-
tional officers under 42 U.S.C. § 1983, alleging that they vio-
lated his Eighth Amendment rights by using excessive force
or by failing to intervene and prevent it. He also sued two
prison nurses for acting with deliberate indifference toward
his injuries.
The district court dismissed the claims against the nurses
before trial because Wilborn failed to exhaust administrative
remedies. The remaining claims were tried to the court. Wil-
born tried the case on his own, without a lawyer. Partway
through the trial, the district court granted judgment as a mat-
ter of law for one defendant officer. After the trial, the district
court issued written findings of fact and conclusions of law.
The court found that the officers were more credible than Wil-
born and his witnesses and entered judgment in favor of all
remaining defendants.
Wilborn appeals the court’s dismissal of his claims against
the nurses for failure to exhaust administrative remedies and
the findings of fact and conclusions of law after the trial. He
also argues that the district court abused its discretion by fail-
ing to recruit counsel to assist him. We affirm.
I. Factual & Procedural Background
A. Wilborn’s Attack and His Injuries
On July 28, 2011 Wilborn was an inmate at the Menard
Correctional Center in Illinois. At around 4:20 p.m. that day,
defendant-officers William Johnson, Andrew Bennett, and
James Lloyd were preparing inmates to walk from the North
1 cell house to the chow hall for dinner. With the cell doors
No. 16-2106 3
open, Wilborn rushed out of his cell and attacked Johnson. 1
Bennett and Lloyd responded by taking Wilborn to the
ground and ordering him to “cuff up.” According to the offic-
ers, Wilborn did not comply and violently resisted.
The officers’ testimony was generally consistent. Johnson,
Bennett, and Lloyd testified that they took Wilborn to the
ground fairly quickly after the struggle began. They said they
ended up on top of Wilborn, who resisted restraints for two
to three minutes by kicking, thrashing, and thrusting his head
backwards at them. The officers uniformly described striking
his major muscle groups (neck, shoulders, biceps, thighs) to
gain compliance, but they denied striking his face. They de-
scribed how Officer David Ealey arrived while Wilborn was
still resisting and administered pepper spray before Wilborn
was handcuffed. Lloyd and another officer then escorted Wil-
born to North 2 to see a medical technician. The officers de-
nied striking Wilborn after they had restrained him.
Wilborn told a very different story. He testified that he
was compliant and in handcuffs when Ealey used the pepper
spray. He also testified that the officers continued to beat him
after restraining him, including on the walk from North 1 to
North 2. His former cellmate supported his story, testifying
that Wilborn never resisted and that the officers kicked and
beat Wilborn after they cuffed him. Finally, Wilborn claimed
that defendant Major William Rees observed the other offic-
1 Wilborn testified that the officers, not he, initiated the attack. In a
disciplinary report, the Illinois Department of Corrections found that Wil-
born was the initial aggressor. That finding is binding in this appeal. Ed-
wards v. Balisok, 520 U.S. 641, 646–48 (1997) (applying principles of Heck v.
Humphrey, 512 U.S. 477, 486–87 (1994), to prison disciplinary decisions).
4 No. 16-2106
ers’ conduct and failed to intervene. Rees testified to the con-
trary. He said that he arrived after the officers had restrained
Wilborn. Rees said he observed that Wilborn had been pep-
per-sprayed and instructed the officers to take Wilborn to a
medical technician.
After the altercation, medical staff at Menard examined
Wilborn. They did not treat him for long, though, because
later that day the Illinois Department of Corrections issued
Wilborn a disciplinary ticket for the fight and transferred him
to Tamms Correctional Center. Upon intake at Tamms, de-
fendant nurses Lakeisha Hamby and Shelby Dunn evaluated
Wilborn. They recorded his cuts and bruises, gave him aceta-
minophen, and told him to use his cell sink to clean up. They
also noted that Wilborn’s right shoulder appeared abnormal
and that he complained of dislocation. Deciding this was not
a major injury, they placed Wilborn on a list to see a doctor
first thing the next day. Tamms staff then placed Wilborn in
the infirmary overnight. He remained in significant pain.
Wilborn saw a doctor at Tamms the next morning. The
Tamms doctor sent Wilborn to an outside hospital, where an-
other doctor diagnosed and reduced Wilborn’s dislocated
right shoulder at about 3:00 p.m., almost twenty-four hours
after the fight. Wilborn returned to the infirmary at Tamms
and remained there until August 23, 2011.
B. This Federal Lawsuit
In November 2012 Wilborn filed a pro se complaint in the
Northern District of Illinois under 42 U.S.C. § 1983. The case
was transferred to the Southern District of Illinois where the
events occurred. Wilborn asserted nine counts against sixteen
named defendants and numerous John Does alleging that
No. 16-2106 5
they violated his First and Eighth Amendment rights. After
screening and severing claims under 28 U.S.C. § 1915A, the
district court allowed the allegations in this case to proceed.
Wilborn pursues four claims in this appeal: (1) his excessive
force claim against the Menard officers; (2) his state-law bat-
tery claim against the same officers; (3) his deliberate indiffer-
ence claim against Major Rees; and (4) his deliberate indiffer-
ence claim against Tamms nurses Hamby and Dunn.
Nurses Dunn and Hamby moved for summary judgment
on the ground that Wilborn had failed to exhaust administra-
tive grievance procedures for his claims against them as re-
quired under the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e(a). The district court held an evidentiary hearing un-
der Pavey v. Conley (“Pavey I”), 544 F.3d 739 (7th Cir. 2008), to
resolve the relevant factual disputes. After the hearing, the
district court found that Wilborn failed to follow the admin-
istrative grievance process and dismissed the claims against
Dunn and Hamby.
Throughout the pretrial phase of the lawsuit, Wilborn re-
quested that the court recruit counsel for him under 28 U.S.C.
§ 1915(e)(1). The district court denied his requests until July
2014, when it agreed to try to recruit counsel. After contacting
more than 400 attorneys over many months, the district court
found a volunteer to be Wilborn’s stand-by counsel at trial.
Just shy of a month later, however, the volunteer counsel cited
a scheduling conflict and the district court granted his motion
to withdraw. Wilborn did not renew his request for recruited
counsel, and the district court did not renew its search. Wil-
born proceeded to trial pro se.
The district court held a bench trial on the remaining is-
sues in April 2016. Wilborn began by testifying in narrative
6 No. 16-2106
form and then called seven witnesses: defendants Rees, Dunn,
and Hamby; three inmates; and an external investigator. After
Wilborn rested, the district court entered judgment as a mat-
ter of law for Rees. The defendant officers then testified on
their own behalf. In its findings of fact, the district court found
the officers more credible than Wilborn and his witnesses. The
court also found that Wilborn’s injuries were consistent with
the officers’ version of the fight and concluded that they used
force in good faith and as reasonably necessary to restrain
Wilborn. The court entered final judgment in favor of all de-
fendants.
II. Analysis
On appeal, Wilborn argues that the district court erred in
four ways: first, by finding that he failed to exhaust adminis-
trative remedies against nurses Dunn and Hamby; second, by
crediting the officers’ version of the facts concerning their vi-
olent encounter; third, by granting judgment as a matter of
law for Rees; and fourth, by failing to recruit another lawyer
for him. We review each argument in turn and ultimately af-
firm.
A. Exhaustion of Administrative Remedies
The Prison Litigation Reform Act required Wilborn to ex-
haust “such administrative remedies as are available” before
suing the Tamms nurses for deliberate indifference to his
pain. 42 U.S.C. § 1997e(a). The district court held an eviden-
tiary hearing under Pavey to determine which administrative
remedies Wilborn had pursued and when. After the hearing,
the district court concluded that Wilborn failed to exhaust
those remedies by missing a filing deadline without good
cause. The court therefore dismissed the claims against
No. 16-2106 7
Tamms nurses Dunn and Hamby. Wilborn argues that he ei-
ther met the deadline or had good cause for missing it. We
reject both arguments.
1. Standard of Review
A preliminary question requires clarification. We have
sometimes written that we review de novo a dismissal after a
Pavey hearing, e.g., Hernandez v. Dart, 814 F.3d 836, 840 (7th
Cir. 2016), but that is only part of the story. At Pavey hearings,
judges may hear evidence, find facts, and determine credibil-
ity. Pavey v. Conley (“Pavey II”), 663 F.3d 899, 904 (7th Cir.
2011); Pavey I, 544 F.3d at 742. After finding facts, the district
court may allow the claim to proceed or dismiss it for failure
to exhaust. Pavey I, 544 F.3d at 742. If the defense is adjudi-
cated on the basis of factual findings after a hearing, more
general principles of federal civil procedure call for us to re-
view the findings of fact only for clear error. Pavey II, 663 F.3d
at 904; Fed. R. Civ. P. 52(a)(6); cf. Philos Technologies, Inc. v.
Philos & D, Inc., 802 F.3d 905, 911 (7th Cir. 2015) (“Factual find-
ings related to the personal-jurisdiction issue are reviewed for
clear error.”); Dr. Robert L. Meinders, D.C., Ltd. v. UnitedH-
ealthcare, Inc., 800 F.3d 853, 856 (7th Cir. 2015) (when district
court’s decision to dismiss for improper venue “is based upon
factual findings, our review is guided by the clearly erroneous
standard”). Accordingly, in this case we review the district
court’s factual findings for clear error, but we review de novo
the court’s understanding of applicable law. Curtis v. Timber-
lake, 436 F.3d 709, 711 (7th Cir. 2005) (per curiam). We turn
now to Wilborn’s two arguments for avoiding the defense.
8 No. 16-2106
2. Submission to Counselor
This circuit has taken a strict approach to exhaustion. Dole
v. Chandler, 438 F.3d 804, 809 (7th Cir. 2006). An inmate must
comply with the administrative grievance process that the
State establishes, at least as long as it is actually available to
the inmate. Id. Before April 2017, Illinois required inmates to
follow a three-step process before suing in federal court. 2 Step
one required an inmate to address his complaint with a coun-
selor. 20 Ill. Admin. Code § 504.810(a), as promulgated in 27
Ill. Reg. 6285–86 (April 11, 2003); 3 Pyles v. Nwaobasi, 829 F.3d
860, 864 (7th Cir. 2016). If that did not resolve the issue, the
inmate proceeded to the second step by submitting a written
grievance to a grievance officer within 60 days of the incident.
20 Ill. Admin. Code § 504.810(a)–(b); Pyles, 829 F.3d at 864.
This filing deadline could be extended for good cause. 20 Ill.
Admin. Code § 504.810(a). Here, Wilborn submitted his griev-
ance to a counselor 57 days after the incident and to a griev-
ance officer 101 days after the incident. The question is
whether Wilborn complied with the second step.
The parties agree that Wilborn submitted his grievance to
a counselor within 60 days. Despite our precedent to the con-
2 Effective April 2017, Illinois amended its grievance procedures. See
41 Ill. Reg. 3909–10 (March 31, 2017) (amending 20 Ill. Admin. Code
§ 504.810). When Wilborn sued, the April 2003 version of the grievance
procedures was in effect. See 27 Ill. Reg. 6285–86 (April 11, 2003) (promul-
gating the version of 20 Ill. Admin. Code § 504.810 in effect from April
2003 through April 2017). Throughout this opinion, we apply the April
2003 version of the regulations.
3 All subsequent references to 20 Ill. Admin. Code § 504.810 are to the
version effective April 2003, as promulgated in 27 Ill. Reg. 6285–86.
No. 16-2106 9
trary, Wilborn insists that this was enough to exhaust availa-
ble administrative remedies. Under the regulations in effect
then, we have clearly held, an Illinois inmate must submit his
grievance to a grievance officer, not only to a counselor, by
the deadline. Owens v. Hinsley, 635 F.3d 950, 953, 955 (7th Cir.
2011) (affirming dismissal for failure to exhaust when inmate
submitted grievance to counselor within three days, but not
to grievance officer within 60 days). 4
3. Good Cause
Even if his grievance was submitted too late, Wilborn ar-
gues that he had good cause for missing the deadline by 41
days. Illinois extends the filing deadline when an inmate has
good cause for delay. 20 Ill. Admin. Code § 504.810(a). Good
cause in this context “is a flexible, equitable” standard that
excuses delay when it is “occasioned by something that is not
within” the inmate’s control. Pyles, 829 F.3d at 865, 866.
Wilborn points to the following facts as good cause: that
he remained in the infirmary to recover from his injuries (26
4 We have recognized one exception, but Wilborn presents no facts to
support its application here. In Curtis v. Timberlake, 436 F.3d 709 (7th Cir.
2005), we held that an inmate could exhaust by complying with an ac-
cepted alternative procedure. To meet this exception, the inmate must
show that the prison established, through regular practice, an alternative
procedure not reflected in the written rules. Id. at 712. In this case, the dis-
trict court heard evidence on this question at the Pavey hearing, including
testimony from the grievance officer who handled Wilborn’s complaint.
The court found the officer credible and concluded that Tamms did not
allow inmates to meet the deadline by submitting a grievance to a coun-
selor instead of a grievance officer. Wilborn does not identify any evidence
that contradicts this finding. The court did not clearly err by finding that
there was no alternative procedure. Curtis, 436 F.3d at 711 (whether the
prison follows an alternative procedure is a question of fact).
10 No. 16-2106
days); that his first submission to his counselor was lost in the
prison mail (5 days); that his counselor did not respond to his
informal complaint right away (8 days); and that he wanted
to make a photocopy (31 days). Because his grievance was
submitted to the grievance officer 101 days after the incident
(i.e., 41 days late), Wilborn must demonstrate good cause for
a period of at least 41 days.
Defendants Dunn and Hamby agree that Wilborn should
be credited for the time the grievance spent lost in the prison
mail system and on the counselor’s desk. But this explains
only 13 of the 41 days that Wilborn delayed beyond the dead-
line, leaving 28 days unexplained. His stay in the hospital (26
days) is not sufficient alone to show good cause. To prove that
he exhausted the administrative process, then, Wilborn must
show that his desire to make a photocopy (31 days) excuses
him from the 60-day deadline.
Physical incapacitation can be good cause for delay. Hurst
v. Hantke, 634 F.3d 409, 412 (7th Cir. 2011). To survive sum-
mary judgment on this basis, however, Wilborn needed to
provide evidence that he was “physically unable to pursue”
administrative remedies while in the infirmary. Id. Wilborn
has not done that. He insists that he was unable to work from
the infirmary without explaining why or citing any evidence.
He has not shown, for example, that he lacked access to the
grievance forms or that his injuries prevented him from re-
searching or writing. And as the district court noted, Wilborn
submitted a grievance about a different issue the day after he
left the infirmary. Wilborn does not explain why he could
complete that grievance promptly, but not this one.
Similarly, waiting for photocopying is not a sufficient ex-
cuse here. In Pyles v. Nwaobasi, 829 F.3d 860 (7th Cir. 2016), we
No. 16-2106 11
found good cause when the inmate reasonably believed that
the library would return his original and photocopied griev-
ance within the 60-day window. Id. at 866. Importantly, the
inmate in that case requested a copy from the library as soon
as he could and filed it the day he received it back. Id. The
library took 13 days to make the photocopy, however, which
caused the inmate to miss the filing deadline by two days. Id.
at 865, 866. Wilborn points to no comparable facts here. We
know only that Wilborn received a response from his counse-
lor on October 6, 2011 and did not submit the grievance to a
grievance officer until November 6, 2011. Sometime during
those 31 days, Wilborn made a photocopy. That is not enough
to show good cause. We therefore affirm the district court’s
decision to dismiss Wilborn’s claims against nurses Dunn and
Hamby for failure to exhaust.
B. Cruel and Unusual Force?
Correctional officers violate the Eighth Amendment when
they use force not “in a good faith effort to maintain or restore
discipline,” but “maliciously and sadistically for the very pur-
pose of causing harm.” Hudson v. McMillian, 503 U.S. 1, 6
(1992), quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986).
Here, the correctional officers testified that they used force af-
ter Wilborn attacked them and stopped once they handcuffed
him. The district court found that the officers were credible
and that they used only the force needed to restrain Wilborn
and restore safety. Accordingly, the court concluded that the
officers did not violate the Eighth Amendment by using cruel
or unusual force. Wilborn challenges these factual findings,
which we review under the clearly-erroneous standard. We
will overturn them only if the entire record leaves us “with
12 No. 16-2106
the definite and firm conviction that a mistake has been com-
mitted,” giving due deference to the district court’s better op-
portunity to see and hear the witnesses. Anderson v. City of
Bessemer City, 470 U.S. 564, 573 (1985), quoting United States v.
United States Gypsum Co., 333 U.S. 364, 395 (1948).
We give “even greater deference to” findings that are
based on witness credibility. Anderson, 470 U.S. at 575. This is
a high hurdle, but we could reverse if the credited testimony
were “facially implausible” or “contradicted by extrinsic evi-
dence.” Ortiz v. Martinez, 789 F.3d 722, 729 (7th Cir. 2015),
quoting Anderson, 470 U.S. at 575. Wilborn insists that his doc-
umented injuries are inconsistent with the officers’ testimony.
The fight caused bruising, abrasions, and swelling on Wil-
born’s face and a cut above his right eye. An inmate testified
that Wilborn also had black eyes and a broken tooth. Yet all
defendants denied striking Wilborn in the face, testifying that
they struck only his major muscle groups (neck, shoulders,
biceps, thighs) as they are trained to do. This testimony, Wil-
born argues, is implausible given his facial injuries.
The district court found that Wilborn’s injuries were con-
sistent with the officers’ account. This conclusion was not
clearly erroneous. The officers testified that they tackled Wil-
born and landed on top of him on the ground. They described
wrestling with Wilborn for two to three minutes while he re-
sisted by kicking, thrashing, and thrusting his head back-
wards at them. Wilborn was moving his head so violently that
he caused Officer Ealey, who was trying to hold Wilborn’s
head still, to cut his wrist on a nearby box fan. It was reason-
able to infer from this testimony that Wilborn sustained his
injuries, including the facial injuries, when officers tackled
him and wrestled him into submission. See United States v.
No. 16-2106 13
Johnson, 437 F.3d 665, 675 (7th Cir. 2006) (credibility determi-
nation not clear error if testimony was “neither physically im-
possible nor contrary to the laws of nature”).
In the alternative, Wilborn proposes a second version of
the events. He claims that if the officers never struck him in
the face during the initial altercation, then they must have hit
him on the walk to the North 2 medical wing. To make this
point, Wilborn relies on defendant Rees’s testimony. Rees tes-
tified that he arrived on the scene after the officers had re-
strained Wilborn. He observed that Wilborn had been pepper
sprayed but did not notice any other injuries. To Wilborn, this
observation proves that the officers must have inflicted the fa-
cial injuries after Rees saw them leave North 1—that is, while
the officers escorted Wilborn in handcuffs to see a medical
technician in North 2.
Wilborn’s argument is plausible, but this testimony is not
enough to show the court’s findings were clearly erroneous.
Bruises and swelling can take time to manifest, which may
explain why Rees did not see them immediately after the
fight. It is also plausible that Rees could see the general effects
of pepper spray without noticing a small laceration above one
eye. It was not clearly erroneous for the district court to credit
the officers’ testimony that they did not strike Wilborn after
restraining him.
Finally, Wilborn points to minor inconsistencies in the of-
ficers’ testimony to argue that they were not believable. “Wit-
nesses are not incredible as a matter of law simply because
they have been impeached on trivial, irrelevant matters.”
United States v. Jensen, 169 F.3d 1044, 1047 (7th Cir. 1999). And
that is the case here. The discrepancies Wilborn identifies do
not make the officers’ testimony “exceedingly improbable.”
14 No. 16-2106
Id. The district court did not clearly err when it found that the
officers used lawful force to subdue Wilborn.
C. Judgment as a Matter of Law for Rees
An officer who fails to intervene to try to prevent known
cruel or unusual force, despite a reasonable opportunity to do
so, may be held liable under § 1983. See Yang v. Hardin, 37 F.3d
282, 285 (7th Cir. 1994). According to Wilborn, Rees witnessed
the other officers beating him both in the North 1 cell house
and later in the North 2 medical wing. Based on this account,
Wilborn argues that Rees violated the Eighth Amendment by
failing to intervene and prevent the abuse. At the close of Wil-
born’s case, the district court found that Wilborn had not pre-
sented sufficient evidence that Rees knew of any excessive
force, so it granted judgment as a matter of law for Rees. In its
post-trial conclusions of law, the district court repeated that if
it had not granted judgment as a matter of law when plaintiff
rested, it would have ordered judgment in Rees’s favor after
trial because it found no underlying excessive force that could
be cruel and unusual punishment under the Eighth Amend-
ment.
Wilborn challenges that decision on appeal, arguing (1)
that Wilborn’s own testimony proved that Rees was aware of
the unlawful use of force, and (2) that the district court cited
the wrong Federal Rule of Civil Procedure. Both arguments
fail. Because we uphold the district court’s factual findings,
there was no underlying unlawful force for Rees to witness.
And even though the district court cited Rule 50(a), which ap-
plies to jury trials, instead of Rule 52(c), the rule for bench tri-
als, mistakenly citing the more favorable standard could not
have prejudiced Wilborn. Ortloff v. United States, 335 F.3d 652,
660 (7th Cir. 2003). Rule 50(a) requires the court to consider
No. 16-2106 15
the evidence in the light most favorable to the non-moving
party, while Rule 52(c) allows the court to weigh the evidence
and determine witness credibility. See id. Thus even if the
court’s mistake was more than a slip of the judicial pen and
the court applied the wrong standard, this could not have
harmed Wilborn. We affirm judgment as a matter of law in
favor of Rees.
D. Recruitment of Counsel
In civil cases, a district court may recruit “an attorney to
represent any person unable to afford counsel.” 28 U.S.C.
§ 1915(e)(1). The court cannot appoint counsel in civil cases
but must rely on the generosity of lawyers to volunteer their
time and skill on behalf of indigent civil parties. Mallard v.
United States Dist. Court for the Southern Dist. of Iowa, 490 U.S.
296, 310 (1989). Whether to seek a volunteer attorney is a mat-
ter of the court’s discretion. Pruitt v. Mote, 503 F.3d 647, 658
(7th Cir. 2007) (en banc).
Here, the district court decided before trial that Wilborn
needed counsel. The court then searched for months before
finding a volunteer. The district court later permitted the vol-
unteer to withdraw instead of accommodating his schedule.
(The record does not explain that choice.) Wilborn did not re-
new his request for recruitment, and the court did not renew
its search. Wilborn argues on appeal that the district court
abused its discretion when it did not try to find a replacement
lawyer.
As we have emphasized before, § 1915(e)(1) does not cre-
ate a right to counsel in civil cases. Dupree v. Hardy, 859 F.3d
458, 462 (7th Cir. 2017); Pruitt, 503 F.3d at 657–58. That a court
decides to recruit a volunteer does not create a right either.
16 No. 16-2106
Nor does it mean that the court has an indefinite commitment
to search until a volunteer is found. The help of recruited law-
yers is a valuable resource but a limited one. Demand often
exceeds supply, especially when marginal costs are zero or
minimal. (Wilborn has pursued four separate suits against
more than sixteen defendants related to this incident.) Given
this dynamic, identifying a volunteer is not always possible,
especially for cases outside of major metropolitan areas. There
are limits to what a court must do after deciding to recruit
counsel.
The court did not abuse its discretion by failing to find a
second volunteer here. Over a span of eighteen months, the
district court contacted over 400 attorneys. The docket shows
that the district court renewed its search at least three times,
albeit without much success. These efforts were more than
enough to satisfy any duty to the indigent plaintiff. The dis-
trict court also offered to postpone the trial, either to allow
Wilborn to prepare better or to find another volunteer. Wil-
born declined. He cannot now claim that the court abused its
discretion by allowing him to proceed pro se.
Finally, Wilborn argues in his reply brief that the district
court abused its discretion when it denied his original three
requests for recruitment. We do not consider arguments
raised for the first time in a reply brief. Dixon v. Page, 291 F.3d
485, 489 (7th Cir. 2002). Even if we did, the district court ap-
plied the two relevant factors—the litigant’s ability and the
case’s complexity—and reached a reasonable conclusion. The
court thus did not abuse its discretion. Pruitt, 503 F.3d at 649–
50.
The judgment of the district court is AFFIRMED.