In the
United States Court of Appeals
For the Seventh Circuit
No. 07-1219
F ABIAN SANTIAGO,
Plaintiff-Appellant,
v.
JONATHAN R. W ALLS, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Southern District of Illinois.
No. 3:02-cv-00784-JPG—J. Phil Gilbert, Judge.
A RGUED M AY 29, 2009—D ECIDED M ARCH 29, 2010
Before R IPPLE, R OVNER and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Fabian Santiago was a prisoner
at the Menard Correctional Center in Illinois (“Menard”),
where he was assaulted on several occasions. He filed
this pro se action under 42 U.S.C. § 1983 against certain
officers and employees of the Illinois Department of
Corrections (“IDOC”), alleging that they had violated
his constitutional rights by failing to protect him from
other inmates, failing to provide him with medical care
2 No. 07-1219
and retaliating against him for speaking out against the
IDOC. The court dismissed three of the seven claims
that Mr. Santiago brought for failure to state a claim.
During discovery, Mr. Santiago repeatedly requested
that the court recruit counsel, pursuant to 28 U.S.C.
§ 1915(e)(1).1 However, the court declined to do so until
three months before trial, which was more than twenty
months after discovery had closed. After a two-day trial,
a jury found in favor of the defendants, and Mr. Santiago
brought this appeal. Because we believe that the district
court erred in dismissing Count Four of Mr. Santiago’s
complaint and abused its discretion by not recruiting
counsel for Mr. Santiago during discovery, we affirm
in part and reverse in part the judgment of the district
court and remand this case for further proceedings.
1
Because there is no constitutional or statutory right to counsel
in civil litigation of this sort, federal courts do not have the
authority to appoint coercively a member of the bar to represent
a litigant. However, because such representation is a profes-
sional obligation of members of the bar, courts regularly are
able to find attorneys willing to take on this task in the
highest traditions of their profession. Therefore, these requests
are, as a practical matter, appointments and are often referred
to as such. See Pruitt v. Mote, 503 F.3d 647, 653-54 (7th Cir.
2007) (en banc), see also Tucker v. Randall, 948 F.2d 388, 391 n.3
(7th Cir. 1991) (“We use the term ‘appoint’ only as a shorthand
for this recruitment process.”).
No. 07-1219 3
I
BACKGROUND
A. Incidents at the Menard Correctional Center
1. The fight with Harris
On April 17, 2001, while Mr. Santiago was a prisoner
at Menard, 2 he fought with his cellmate, Haynes.3 Another
inmate, Isaac Harris, witnessed the altercation; during
the fight he yelled for Mr. Santiago “not to trip” because
Harris had him. R.1 (5/21/2002 Grievance Report).
Mr. Santiago interpreted this verbal intervention as a
threat of retaliation. Correctional Officer (“C.O.”) Gary
Rednour and C.O. Butler witnessed this exchange but
did not report the threat to the prison authorities. Al-
though Mr. Santiago filed a grievance regarding the
alleged threat by Harris, he claims that he was unable
to list Harris as an enemy4 because he knew Harris only
by a nickname, “Ice.”
In a prison disciplinary proceeding concerning
Mr. Santiago’s fight with Haynes, Mr. Santiago was found
guilty of fighting and was placed in segregation for six
2
Mr. Santiago was later transferred to the Pontiac Correctional
Center in 2003.
3
The record does not disclose the first names of several parties
and witnesses involved in this case.
4
The “enemy list” is a list maintained by Menard for its
prisoners. Each prisoner lists individuals with whom he
should not be placed in a cell because of safety concerns.
See R.1 (4/23/2001 Final Summary Report).
4 No. 07-1219
months. The grievance officer’s report noted that, in the
future, Mr. Santiago should report any enemies to his
counselor so that such individuals would not be placed
in his cell.
2. The Harris assault
On May 15, 2002, Warden Jonathan Walls and
Captain Ramage assigned Mr. Santiago to Harris’s cell.
Later that day, while Mr. Santiago was eating lunch in
the cafeteria, Harris attacked him. Mr. Santiago alleges
that, during the ensuing fight, Sergeant Suemnicht was
standing approximately fifteen feet away but did not
intervene until Mr. Santiago got up, turned around and
attempted to hit Harris. At that time, Sergeant Suemnicht
sprayed Mr. Santiago and Harris with pepper spray. C.O.
John Doe 15 then tackled Mr. Santiago to the ground,
causing him “extreme pain.” R.28 at 5. The complaint
further alleges that, while escorting Mr. Santiago to the
infirmary, C.O. John Doe 1, “brutally yank[ed] and
rip[ped]” backwards Mr. Santiago’s handcuffs,
giving him abrasions and causing him further pain. Id.
Mr. Santiago further alleges that he was treated in this
manner by the officers even though he offered no resis-
tance.
5
The officers involved in this incident were listed in the
original complaint as officers John Doe 1 and John Doe 2.
After the parties determined that John Doe 1 was Sergeant
Suemnicht, the remaining unnamed officer subsequently
was referred to as “John Doe 1.”
No. 07-1219 5
According to Mr. Santiago’s complaint, when he reached
the infirmary, Dr. John Doe refused to treat him. Dr. John
Doe instead told C.O. Keys to move Mr. Santiago to a
segregation unit. C.O. Keys first placed Mr. Santiago in
a holding cell within view of a surveillance camera and
then later moved him to segregation. Mr. Santiago states
that he suffered from migraine headaches and facial
pain and that he had trouble eating.
3. The Castro assault
Not long after the Harris assault, Mr. Santiago was
moved into a cell with Castro, who, Mr. Santiago alleges,
had a history of assaulting his cellmates. Mr. Santiago
filed an emergency grievance with Warden Walls, re-
questing that his cellmate be placed on his enemy list
and seeking relocation to avoid a physical confrontation.6
The request specifically informed the warden that
Mr. Santiago believed there was a conscious practice on
the part of the prison guards to place him with inmates
with whom he was bound to have a confrontation that
would result in his being sent to segregation. Warden
Walls took no action.7 Four days later, Mr. Santiago was
assaulted severely by Castro and sustained cuts, swelling
and bruises to his face—“the walls, floor and bed full of
6
The parties agree that the grievance did not contain
Castro’s name.
7
At oral argument, the defendants stated that Warden
Walls’s office rejected the emergency grievance in writing.
6 No. 07-1219
my blood.” R.1 at 5. Mr. Santiago alleges that, after he
was assaulted, C.O. Jines, C.O. Cox and others refused
to provide him with medical treatment. He further
alleges that the guards placed him in another cell with
a prisoner who had assaulted a guard. The complaint
also alleges that prison guards attempted to place him
in a yard with Harris in order to expose him to further
attack.
B. Litigation in the District Court
1. Discovery
In July 2003, Mr. Santiago filed this pro se section 1983
action in the Southern District of Illinois against the
defendants. The district court divided the amended
complaint into seven counts: Count One against Warden
Walls, C.O. Ramage and C.O. Keys for failing to protect
Mr. Santiago from the Harris assault; Count Two against
Sergeant Suemnicht and C.O. John Doe 1 for using exces-
sive force following the Harris assault; Count Three
against C.O. Keys for using excessive force against
Mr. Santiago and against Dr. John Doe for failing to
provide medical care following the Harris assault;
Count Four against Warden Walls for failing to protect
Mr. Santiago from Castro; Count Five against Warden
Walls for failing to protect Mr. Santiago by moving him
into the same cell block as Harris after Mr. Santiago was
released from segregation; Count Six against C.O. Jines
and C.O. Cox for failing to provide Mr. Santiago with
medical treatment following the Castro assault; and
Count Seven against Warden Walls and C.O. Keys for
No. 07-1219 7
retaliating against Mr. Santiago for speaking out against
IDOC employees. R.1; R.28.
During the course of litigation, the court dismissed
Counts One, Two and Four without prejudice for failing
to state a claim upon which relief could be granted. See
Fed. R. Civ. P. 12(b)(6). The court also dismissed Captain
Ramage, Sergeant Suemnicht, C.O. Rednour and C.O.
Butler from the case because they were not named as
defendants in the surviving claims.
In 2004 and 2005, Mr. Santiago filed motions in an
attempt to conduct discovery. On August 9, 2004, he
sought to compel the defendants to disclose discovery
materials. Mr. Santiago observed that Warden Walls’s
and C.O. Keys’s response contained little of the material
that he requested more than four months prior. They
claimed that the identities of the witnesses to the
Harris and Castro assaults were “not relevant” to the
case, and they instructed Mr. Santiago to obtain the
information that he needed through the IDOC. R.85, Ex. A
at 2. Mr. Santiago had maintained that communication
with IDOC would not be useful without first learning
the identities of the witnesses, and he noted that IDOC
would only allow inmates to communicate with rela-
tives. On August 20, the district court concluded that
Mr. Santiago’s motion was premature because he had not
made a good-faith effort to resolve his dispute after
receiving objections and a response to his discovery
request. Mr. Santiago unsuccessfully filed an objection
to the ruling.
On October 28, Mr. Santiago filed a “motion requesting
to depose all defendants, witnesses.” R.100. His motion
8 No. 07-1219
was denied on the basis that he did not need leave to
depose the defendants. Mr. Santiago filed a motion for
sanctions on February 23, 2005, which he later supple-
mented, stating that the defendants had failed to
comply with his discovery requests. On May 23, the
district court denied his motion for sanctions, finding
that Mr. Santiago had not made a good-faith effort to
resolve the dispute because he had failed to confer with
the defendants regarding their objections and responses
to his discovery requests.
At the close of discovery, Mr. Santiago had not suc-
ceeded in identifying C.O. John Doe 1, Dr. John Doe or any
witnesses to the Harris and Castro assaults. He had not
taken any depositions or served any interrogatories.
Mr. Santiago was also unable to obtain any of the prison
surveillance videos.
2. Recruitment of counsel
Before and during discovery, Mr. Santiago filed several
motions seeking the recruitment of counsel.
On August 28, 2003, the court denied Mr. Santiago’s
first such motion:
Plaintiff has not demonstrated that he has made
reasonable attempts to retain counsel and has not
shown that he was effectively precluded from
making a diligent effort in this regard. However,
the facts and issues in this case are not complex
and it appears at this time that plaintiff is able to
determine the facts and present his case without
No. 07-1219 9
assistance from counsel. Finally, plaintiff’s likeli-
hood of success on the merits is, at this point,
questionable.
R.15 at 2 (footnote omitted).
In February 2004, Mr. Santiago filed a second motion
seeking the recruitment of counsel. See R.28. He maintained
that he needed assistance obtaining and reviewing evi-
dence including reports, grievances, medical documents
and camera footage. Mr. Santiago also stated that he
needed assistance contacting and interviewing several
witnesses.
In April, Mr. Santiago filed a third motion for the re-
cruitment of counsel, which restated his previous asser-
tions. On May 7, the court denied that motion because
Mr. Santiago had not made “any attempt to obtain repre-
sentation on a contingency fee or pro bono basis,” nor
had he shown that he was unable to make such an ef-
fort. R.53.
On May 17, 2004, Mr. Santiago filed a fourth request
for the recruitment of counsel, in which he reiterated his
earlier statements regarding his problems conducting
discovery, noted that he needed help locating and de-
posing witnesses and argued that the prison restricted
his ability to keep legal documents in his cell. He at-
tached six letters from various law firms and organizations
declining to represent him. The court nevertheless denied
this motion, finding that Mr. Santiago was competent
to represent himself through the pretrial stage because
he could read and write, understand the nature of his
claims and comprehend and follow rules of procedure.
10 No. 07-1219
The court further noted that Mr. Santiago’s claims
were not complex, and that he had access to tools that
would help him determine which laws and rules
governed his case, gather and exchange information,
and communicate with the court and with the defen-
dants’ counsel. R.72 at 2. However, it observed that
Mr. Santiago’s skills might not be adequate for him to
represent himself at trial. Consequently, the court dis-
missed Mr. Santiago’s motion without prejudice with
regard to the recruitment of counsel for trial. Id.
On September 29, 2006—twenty months after the close
of discovery—the court reconsidered its previous ruling
sua sponte and granted Mr. Santiago’s motion for the
recruitment of counsel. The order stated explicitly that
the appointment was “only for the purposes of trial.”
R.173. Mr. Santiago’s attorney made his first appearance
on December 5, 2006, less than two months before the
start of trial.
3. Trial
Mr. Santiago’s two-day trial began on January 29, 2007.
Mr. Santiago’s only witnesses were himself and Harris.
At the close of his case, several of the defendants moved
for judgment as a matter of law. The court reserved the
matter. After trial, the defendants renewed their
motion; the court granted the motion with regard to
Warden Walls on Count Five and C.O. Keys on Count
Seven. On January 30, the jury returned a verdict for the
remaining defendants on all counts.
No. 07-1219 11
II
DISCUSSION
A.
Mr. Santiago asks that we review the district court’s
decision to dismiss three of the counts in his complaint at
the initial screening phase. See 28 U.S.C. § 1915A. We
review such dismissals de novo, Westefer v. Snyder, 422
F.3d 570, 574 (7th Cir. 2005), and apply the same
standard used for evaluating dismissals under
Rule 12(b)(6), “taking all well-pleaded allegations of the
complaint as true and viewing them in the light most
favorable to the plaintiff,” Zimmerman v. Tribble, 226 F.3d
568, 571 (7th Cir. 2000).
1. Count One
Mr. Santiago submits that the district court erred in
concluding that amended Count One failed to state a
claim against C.O. Rednour and C.O. Butler for failure to
protect Mr. Santiago in connection with the Harris as-
sault. Mr. Santiago observes that, in order to state a
section 1983 claim against prison officials for failure to
protect, he must establish: (1) that he was “incarcerated
under conditions posing a substantial risk of serious
harm” and (2) that the defendants acted with “deliberate
indifference” to his health or safety. Farmer v. Brennan,
511 U.S. 825, 834 (1994).
Mr. Santiago contends that Harris’s threat constituted
a substantial risk of harm. See Weiss v. Cooley, 230 F.3d
12 No. 07-1219
1027, 1030, 1032 (7th Cir. 2000) (noting that a prisoner
faced an objective risk of serious injury because of
inmate threats and attacks). He maintains that C.O.
Rednour and C.O. Butler knew of this threat and disre-
garded it, thereby acting with deliberate indifference to
his health and safety. Mr. Santiago claims that the two
officers refused to report Harris’s threats against him,
which would have allowed Harris to be placed on his
enemy list.
The defendants maintain that, given the vagueness of
Harris’s threat, C.O. Rednour and C.O. Butler were prop-
erly dismissed from the lawsuit because they did not
show deliberate indifference to Mr. Santiago’s safety.8 In
their view, once Mr. Santiago was disciplined and moved
into segregation, the possibility of an attack by Harris
was remote. They also claim that Mr. Santiago could have
put Harris on his enemy list without their assistance
because identifying Harris by his nickname was suf-
ficient to get Harris on Mr. Santiago’s enemy list. They
further note that they had no way of knowing that
Mr. Santiago would later be transferred to the same cell
as Harris.
We have held that failure to provide protection consti-
tutes an Eighth Amendment violation only if deliberate
8
The Illinois Attorney General represents Warden Walls, C.O.
Keys, C.O. Jines and C.O. Cox. Although the Illinois Attorney
General does not have an attorney-client relationship with
the remaining defendants, she has structured her argument
on behalf of all of the defendants.
No. 07-1219 13
indifference by prison officials to a prisoner’s welfare
“effectively condones the attack by allowing it to happen.”
Lewis v. Richards, 107 F.3d 549, 553 (7th Cir. 1997) (citation
and quotation marks omitted). To sustain his Eighth
Amendment claim on Count One, Mr. Santiago had to
allege facts sufficient to show “that the defendants
had actual knowledge of an impending harm easily
preventable, so that a conscious, culpable refusal to
prevent the harm can be inferred from the defendant’s
failure to prevent it.” Id. (citation and quotation marks
omitted).
We do not believe that Mr. Santiago has made such an
allegation. Specifically, he has failed to allege that C.O.
Rednour and C.O. Butler had any knowledge of the
impending harm. Notably, the allegations of the com-
plaint make clear that C.O. Rednour filed a report regard-
ing the fight between Mr. Santiago and Haynes and that
Mr. Santiago consequently was found guilty and moved
into solitary confinement for six months. This move
to solitary confinement protected Mr. Santiago from
impending harm. Indeed, Harris did not assault
Mr. Santiago until more than a year after he had made
the threat. Consequently, we must conclude that the
district court correctly dismissed Count One.
2. Count Two
Count Two focuses on Harris’s assault. Mr. Santiago
contends that he has stated a claim against Sergeant
Suemnicht and C.O. John Doe 1 for excessive force be-
cause their actions constituted the wanton and unjustified
14 No. 07-1219
infliction of unnecessary pain against a submissive
inmate and because such action constitutes the use of
malicious force, as opposed to a good-faith effort to
maintain or restore discipline. See Hudson v. McMillian, 503
U.S. 1, 7 (1992). He maintains that the fact that force was
used in the context of an inmate altercation does not
defeat his claim because he “offer[ed] no resistance to [the]
staff during inmate Harris[’s] assault.” R.28 at 5.
The defendants submit that the district court properly
dismissed Count Two. They observe that Mr. Santiago
admitted in his grievance report that Sergeant Suemnicht
did not use mace until Mr. Santiago hit Harris. See R.1
(5/21/2002 Grievance Report). They contend that their
reaction to the fight was not excessive force under
Hudson, 503 U.S. at 7.
In Hudson, the Supreme Court held that, when prison
officials are accused of using excessive force, the key
inquiry is “whether force was applied in a good-faith
effort to maintain or restore discipline, or maliciously
and sadistically to cause harm.” Id. at 7. To determine
whether force was applied in good faith, we consider
several factors, “including the need for the application of
the force, the amount of force applied, the threat an
officer reasonably perceived, the effort made to temper
the severity of the force used, and the extent of the
injury that force caused to an inmate.” Fillmore v. Page,
358 F.3d 496, 504 (7th Cir. 2004). We have noted, in
the context of surviving summary judgment, that
“the prisoner must have evidence that ‘will support
a reliable inference of wantonness in the infliction
No. 07-1219 15
of pain.’ ” Id. (citing Whitley v. Albers, 475 U.S. 312, 322
(1986)).
The allegations in Mr. Santiago’s complaint will not
support an inference of excessive force on the part of
Sergeant Suemnicht and C.O. John Doe 1. Mr. Santiago’s
grievance report establishes that both he and Harris
were fighting and therefore supports the defendants’
position that there was a need for the officers to use
force. We have held that the use of mace is appropriate
“when reasonably necessary . . . to subdue recalcitrant
prisoners.” Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984) (citations and quotation marks omitted) (altera-
tion in original). Given the threat to the safety of the
officers and the threat to the maintenance of good order
and discipline in the institution, the use of mace and
handcuffs cannot be characterized as deliberate indif-
ference. The complaint does not allege adequately that
Sergeant Suemnicht and C.O. John Doe 1 acted “mali-
ciously and sadistically for the very purpose of causing
harm.” Farmer, 511 U.S. at 835 (citation and quotation
marks omitted). The district court therefore correctly
dismissed this count of the complaint.
3. Count Four
Count Four alleged that Warden Walls had failed to
protect Mr. Santiago from the Castro assault.
The Eighth Amendment’s prohibition against cruel and
unusual punishment requires that prison officials “take
reasonable measures to guarantee the safety of the in-
16 No. 07-1219
mates.” Farmer, 511 U.S. at 832 (citation and quotation
marks omitted). Therefore, those charged with the high
responsibility of running prisons are required, as a matter
of constitutionally imposed duty, to “protect prisoners
from violence at the hands of other prisoners.” Id. at 833
(citation and quotation marks omitted). Mr. Santiago
submits that Castro had a history of assaulting cellmates
prior to Mr. Santiago’s being housed with Castro and later
caused Mr. Santiago serious injury. See Brown v. Budz, 398
F.3d 904, 910 (7th Cir. 2005) (noting that to satisfy the
objective prong of a failure to protect claim, “a plaintiff
must allege not only that he or she experienced, or was
exposed to, a serious harm, but also that there was a
substantial risk beforehand that serious harm might
actually occur”). He also alleges that staff deliberately
housed him with Castro in order to provoke a confronta-
tion. Indeed, he maintains that this housing decision
was part of a pattern of the guards housing him with
inmates who would cause such a confrontation and that
his grievance to the warden expressly put the warden
on notice of that practice.
Mr. Santiago submits that Warden Walls knew or
should have known that Castro had a history of
assaulting his cellmates and that Warden Walls disre-
garded that risk. See id. at 914 (holding that plaintiff’s
allegation about what prison officials knew about a
dangerous prisoner is sufficient to survive dismissal
under Rule 12(b)(6)). He notes that, four days prior to his
assault, he had filed an emergency grievance with
Warden Walls, requesting that Castro be placed on his
enemy list and that a “cell change be conducted to
No. 07-1219 17
prevent a physical confrontation.” R.28 at 5-6. Mr. Santiago
contends that Warden Walls disregarded the risk that
Castro posed by failing to grant Mr. Santiago an im-
mediate cell change.
The Warden submits that Mr. Santiago did not allege
that Warden Walls actually knew of Castro’s violent
history at the time that he was attacked. He claims
that the complaint only alleges that he had a duty to
investigate Castro following receipt of the grievance.
He also notes that Mr. Santiago did not request that he
conduct an investigation. The Warden states that the
grievance did not identify Castro by name and did not
suggest that Mr. Santiago had any specific information
indicating that he posed a threat. The Warden observes
that his designees signed the grievance follow-up. He
further observes that there is no respondeat superior
liability under section 1983.
This claim should not have been dismissed. To state a
claim for failure to protect, Mr. Santiago needed to
allege that (1) he was incarcerated under conditions
posing a substantial risk of serious harm and (2) that
Warden Walls acted with deliberate indifference to that
risk. See Farmer, 511 U.S. at 834. Mr. Santiago met the
first requirement because he alleged that he was being
housed with inmates who, because of their behavior
history, posed a significant risk of confrontation and
violence. He also alleged that his present placement was
part of a practice of housing him in explosive situations
that would result in his continued placement in segrega-
tion. See Brown, 398 F.3d at 910. With regard to the
18 No. 07-1219
second requirement, Mr. Santiago alleged that he sub-
mitted a grievance to Warden Walls’s office, asking that the
inmate with whom he was being housed be placed on
his enemy list and that he be given a cell change. The
grievance claimed that the prison officials were
following a practice of placing him in cells with inmates
with whom there was bound to be a confrontation. He
further alleged that the Warden “knew or should have
known” that Castro was dangerous. We think that this
allegation is sufficient, at the pleading stage, to state a
claim that Warden Walls actually knew or consciously
turned a blind eye toward an obvious risk. Mr. Santiago
cannot know for certain what Warden Walls knew
without discovery. Consequently, the district court
should not have dismissed this count of the complaint.
The dissent suggests two infirmities with Mr. Santiago’s
pro se complaint. First, it would require a much greater
level of specificity in both the complaint and in the ap-
pended grievance form. With respect to the grievance,
neither this court nor any other American court has
imposed the requirements of fact or code pleading on
such a document. The purpose of a grievance is, quite
simply, to advise prison management of a situation that
could harm the good order and discipline of the institu-
tion so that remedial steps can be taken by the officer
who is responsible for such remedies. Here, the warden
was informed that personnel under his command were
undermining the good order and discipline of the institu-
tion by placing Mr. Santiago in situations where violence
was inevitable. Although the dissent apparently takes
the contrary view, we believe that any warden worth his
No. 07-1219 19
or her salt would consider such an allegation sufficient
to commence an aggressive investigation. Most wardens
would not fail to meet their responsibilities simply
because the complaining prisoner, while alleging retalia-
tion, failed to name names. The maintaining of prison
discipline does not depend on prisoners naming names.
To the extent that the dissent is asserting that the com-
plaint itself lacked sufficient specificity, it is asking
for a return to the days before the Supreme Court elimi-
nated that impermissible gloss on the Federal Rules in
Leatherman v. Tarrant County Narcotics Intelligence and
Coordination Unit, 507 U.S. 163 (1993). It is clear that this
complaint conforms to the standards set out by the Su-
preme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544
(2007) and Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937
(2009). See generally Haines v. Kerner, 404 U.S. 519 (1972)
(per curiam).
The dissent’s second reason for justifying the dismissal
of the complaint is not based on any legal principle but
on the assumption that summary judgment should be
granted because, at trial, Mr. Santiago admitted that he
threw the first punch when the inevitable altercation
with Castro occurred. This is an argument without legal
substance. As the dissent suggests, it is possible for a
litigant to induce his own defeat by asserting in an affida-
vit facts that negate his case. Here, however, Mr. Santiago
did nothing of the sort. It is important to remember that
his allegation in this case is an Eighth Amendment claim
that the warden was deliberately indifferent by permitting
his employees to create, and by continuing by his
own inaction, a situation that inevitably would lead to
confrontation and violence. Stated bluntly, Mr. Santiago
20 No. 07-1219
is alleging that he was set up. Identity of the first to
throw a punch certainly does not negate the grava-
men of Mr. Santiago’s complaint that the warden was
deliberately indifferent. It was the warden’s job to
ensure that no fight ever took place. According to the
allegations of the complaint, his officers were provoking
such an altercation, and he did nothing to stop it.
That allegation is sufficient to survive dismissal.
B.
Mr. Santiago next challenges the district court’s failure
to recruit counsel during the discovery phase of this case.
We review its decision under 28 U.S.C. § 1915(e)(1) for
an abuse of discretion. Greeno v. Daley, 414 F.3d 645, 658
(7th Cir. 2005). Our review is limited to the evidence
available at the time that the motion was denied, that is,
on July 8, 2004. Pruitt v. Mote, 503 F.3d 647, 659 (7th Cir.
2007) (en banc).
1.
Mr. Santiago submits that the court should have re-
cruited counsel for him during discovery because his
claims were complex. He observes that his claims
involved First and Eighth Amendment issues, including
multiple claims of deliberate indifference by prison staff.
Mr. Santiago contends that his submissions to the court
demonstrated that he was incapable of litigating these
claims without assistance. He further maintains that he
was unable to gather evidence or to take depositions
No. 07-1219 21
because he was no longer incarcerated at Menard, the
prison where the assaults took place and where all of the
defendants, witnesses and evidence were located.
Mr. Santiago also submits that there is a reasonable
likelihood that assistance of counsel during discovery
would have changed the outcome of this litigation. He
observes that he was unable to learn the identity of
Dr. John Doe, and that he could not obtain the prison
camera footage. Mr. Santiago also points out that he
was unable to identify prisoners who witnessed the
Harris and Castro attacks and was, therefore, unable to
call material witnesses at trial. Mr. Santiago maintains
that an attorney would have helped him obtain this
evidence. He further submits that his poor performance
at trial demonstrates that he was prejudiced by not
having counsel during discovery.
The defendants submit that the district court did not
abuse its discretion when it denied Mr. Santiago counsel
during discovery. They observe that Mr. Santiago filed
numerous pleadings, motions and exhibits which
establish that Mr. Santiago understood the nature of the
dispute and was capable of litigating his case pro se. The
defendants maintain that Mr. Santiago’s claims are not
factually complex and that he benefitted from special
rules that govern pro se litigants prior to trial. They
contend that Mr. Santiago’s imprisonment at a facility
other than Menard did not hinder his ability to
conduct discovery. The defendants further claim that
Mr. Santiago is foreclosed from arguing that he was
prejudiced by the lack of access to counsel during dis-
22 No. 07-1219
covery because his recruited attorney neither made such
an argument before the district court nor attempted to
reopen discovery.
2.
The principles that govern our evaluation of the recruit-
ment of counsel under section 1915(e)(1) are well-estab-
lished.9 In our en banc decision in Pruitt, 503 F.3d 647,
we set forth succinctly the rules of law that must govern
this issue. This case simply requires that we apply
these principles to the rather unique factual circum-
stances before us in this case.
We begin by reiterating—and reaffirming—the basic
principles set forth in Pruitt. There is no constitutional
or statutory right to court-recruited counsel in federal
civil litigation. Nevertheless, “an indigent civil litigant
may ask the district court to request an attorney to repre-
sent him pro bono publico.” Id. at 649. The recruitment of
pro bono counsel “is not limited to the trial phase of the
case” but, rather, may encompass discovery as well. Id.
at 655. When the district court is confronted with a
request for counsel under section 1915(e)(1), the district
9
We must note, in fairness to our colleague in the district court,
that the rulings under review in this case antedated our
ruling in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc).
The district court therefore did not have the benefit of our
clarification of the principles governing the appointment of
counsel in civil litigation—principles that we now simply apply
to the unique circumstances of this particular case.
No. 07-1219 23
court must make the following inquiries: “(1) has 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 plain-
tiff appear competent to litigate it himself?” Id. at 654. If
a court’s denial of counsel “amounts to an abuse of its
discretion, we will reverse only upon a showing of preju-
dice.” Id. at 659.
The defendants concede that Mr. Santiago had made a
reasonable attempt to obtain counsel prior to filing his
final motion for the recruitment of counsel. See Appellees’
Br. 29 n.3. Therefore, following the methodology outlined
in Pruitt, we must next determine whether, in the particu-
lar circumstances of this case, the district court abused
its discretion in determining that Mr. Santiago appeared
competent, given the difficulty of his case, to litigate
without the assistance of counsel. We assess, deferentially,
the district court’s determination by viewing the infor-
mation available to the district court at the time that
it made the decision. We must determine whether the
factual and legal difficulty of this case so exceeded
Mr. Santiago’s abilities as a layperson as to make the
denial of appointment of counsel an abuse of discretion.
See Pruitt, 503 F.3d at 655. We must therefore examine
both the difficulties posed by the particular case and the
capabilities of the plaintiff to litigate such a case.
With respect to the difficulty of the case, we noted in
Pruitt that cases involving complex medical evidence
are typically more difficult for pro se defendants. On
several occasions, we also have observed the difficulty
24 No. 07-1219
that prisoners face when litigating constitutional claims
that involve the state of mind of the defendant. For in-
stance, in Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir.
1983), we stated:
Quite often the factual and legal issues in a civil
case are more complex than in a criminal case.
This often will be true in cases presenting constitu-
tional questions. Indeed, surviving a critical mo-
tion to dismiss under Fed.R.Civ.P. 12(b)(6) may
well depend upon the ability to perform legal
research and present sophisticated legal argu-
ments in such doctrinally complex areas as pris-
oner medical rights or free speech.
Id. (citations omitted). In that case, we recognized that the
issue of whether the defendants acted with deliberate
indifference to the plaintiff’s injury was “too complex”
for the defendant because the issue depended “upon
the subtle appreciation of legal causation and of the
duties imposed upon state prison officials” by the Eighth
Amendment. Id. at 765. Swofford v. Mandrell, 969 F.2d 547
(7th Cir. 1992), is also illustrative. In Swofford, prison
officials allegedly failed to come to the plaintiff’s aid when
he was beaten severely and sexually assaulted. In his
complaint, the plaintiff alleged “abuse and failure of pro-
tection” under the Fourteenth Amendment. Id. at 548.
We observed that the case was complex due to “the
difficult and subtle question of the state of mind” of the
defendants. Id. at 552. We further acknowledged that the
plaintiff was unable “to investigate crucial facts” and that
the outcome of the case would turn on witness credibility.
No. 07-1219 25
Id. Consequently, we remanded the plaintiff’s case to the
district court so that it could recruit counsel. Again,
these cases did not articulate categorical rules, and, at
best, serve as caution signs for the district court as it
assesses the particular case before it. Pruitt did not
overrule these cases, directly or by implication. Read in
light of Pruitt’s reiteration of the deference owed the
trial court on such matters, these cases simply continue
to suggest that significant prudence and caution must
be exercised when assessing a lay individual’s capability
for self-representation. The dissent’s suggestion that our
colleagues in the district court will read this case as
placing a “thumb on the scale” in favor of recruitment,
dissent at 37, misapprehends our holding and underesti-
mates our colleagues on the district bench. We have no
intention of undermining, either directly or by implication,
the majority opinion in Pruitt.
With respect to the capabilities of the particular plain-
tiff, we have not developed categorical rules to make
this assessment. The capability of each defendant is
different; the facts of each case are also different. There-
fore, “[t]he inquiry into plaintiff competence and case
difficulty is particularized to the person and the
case before the court.” Pruitt, 503 F.3d at 656. While em-
phasizing that there are no “fixed requirements,” we
noted in Pruitt that a trial court normally will take into
consideration the plaintiff’s “literacy, communication
skills, educational level, and litigation experience.” Id.
at 655. Intellectual capacity and psychological history,
to the extent that they are known, are also relevant. The
plaintiff’s performance up to that point in the litigation
26 No. 07-1219
may be some evidence of these factors, but, in the
end, the estimation as to whether a plaintiff can handle
his own case must be “a practical one, made in light
of whatever relevant evidence is available on the ques-
tion.” Id.
3.
With this guidance in mind and keeping in mind the
deference that we owe the district court on this matter,
we now turn to an evaluation of this case.
We first examine the nature of the case. Mr. Santiago’s
case cannot be characterized as a simple one. As amended,
his complaint raises a total of seven constitutional
claims against eight different defendants. Several claims
are most properly characterized as Eighth Amendment
failure to protect and deliberate indifference claims. To
succeed in his claims for failure to protect at trial,
Mr. Santiago was required to show that C.O. Ramage, C.O.
Keys and Warden Walls knew that he faced a “sub-
stantial risk of serious harm” and then disregarded that
risk “by failing to take reasonable measures to abate it.”
Farmer, 511 U.S. at 847; accord Grieveson v. Anderson, 538
F.3d 763, 776 (7th Cir. 2008). To prove that C.O. Jines, C.O.
Cox and Dr. John Doe violated his Eighth Amendment
rights by failing to provide medical care, Mr. Santiago
needed to establish that those individuals acted with
deliberate indifference. Both of these types of claims
required that Mr. Santiago present relevant and
probative evidence about the state of mind of the defen-
No. 07-1219 27
dants. As we have noted earlier, presenting this sort of
evidence is one of the more challenging aspects of
section 1983 litigation.
We next turn to the difficulty and overall complexity
of this case in light of the plaintiff’s litigation capabilities.
Pruitt, 503 F.3d at 655. While dealing with the evidentiary
demands of a case such as this one presents difficulties
for many prisoner-plaintiffs, Mr. Santiago faced addi-
tional hurdles that must weigh heavily in a practical
estimation of the situation that he faced. Because he had
been transferred to another facility after the events under-
lying his claims, he faced significant problems that he
would not have faced if he had remained in the same
facility.10 See Tucker v. Randall, 948 F.2d 388, 391 (7th Cir.
1991) (“[P]laintiff is unable to investigate crucial facts
because he currently is incarcerated in a facility different
from that in which the alleged conduct took place.”).
Notably, in its order denying the appointment of counsel,
the district court did not mention this very important
factor. The fact that Mr. Santiago did not have ready
access to any of the witnesses, documents or defendants
certainly compounded his difficulty in engaging in the
sort of pretrial discovery necessary to put on a credible
case.11 Yet, the district court apparently decided that the
10
Mr. Santiago formally notified the court of his transfer by
letter dated August 6, 2003 and received by the district court
on August 11, 2003.
11
See R.43 (“Plaintiff is in dire need of counsel to help assist in
obtaining hundreds of documents, medical files, incident
(continued...)
28 No. 07-1219
assistance of counsel was unnecessary without con-
sidering this factor, much less giving it significant weight.
The omission of this consideration from the district
court’s calculus is especially significant in this particular
case. Mr. Santiago was unaware of the names of some
of the defendants and many of the witnesses. In another
context, this court wrote most graphically of the
quandary in which such lack of knowledge places an
incarcerated defendant:
Ordinarily a tort victim who does not know who
the tortfeasor is cannot sue. To know that one has
been injured tortiously but not by whom is a
ground for tolling the statute of limitations, but it
is not a ground for filing suit before the plain-
tiff knows who injured him and who therefore
should be named as the defendants. But this is
not an ordinary case. Billman is a prison inmate.
His opportunities for conducting a precomplaint
inquiry are, we assume, virtually nil. The state’s
attorney smiled when we asked him at argument
whether Billman would be given the run of the
prison to investigate the culpability of prison
employees for the rape. Even without doing any
investigating, Billman knew enough to know that
a terrible thing had been done to him. But he did
11
(...continued)
reports, grievances, to review camera footage of one of the
incidents in question, and to locate, interview dozens of wit-
nesses.”); R.56 (stating that Mr. Santiago needed counsel to
help secure camera footage of C.O. Keys’s actions).
No. 07-1219 29
not know enough to identify the culprits or to
determine whether they had the confluence of
knowledge (of Crabtree’s propensity for rape and
HIV status) and power (to assign Billman to a cell)
necessary to hold them liable for inflicting a
cruel and unusual punishment.
We do not think that the children’s game of pin
the tail on the donkey is a proper model for consti-
tutional tort law. If a prisoner makes allegations
that if true indicate a significant likelihood that
someone employed by the prison system has
inflicted cruel and unusual punishment on him,
and if the circumstances are such as to make it
infeasible for the prisoner to identify that someone
before filing his complaint, his suit should not be
dismissed as frivolous. . . .
. . . Our point is that because Billman is a pris-
oner he may not be in a position to identify the
proper defendants, or all of them, in his com-
plaint. If he were not a prisoner, yet could not
reasonably be expected to identify the wrongdoers
without the aid of pretrial discovery, his suit
would not be dismissed. . . . [H]e [was] not able
to investigate before filing suit. We think it is the
duty of the district court to assist him, within
reason, to make the necessary investigation.
Billman v. Ind. Dep’t of Corrs., 56 F.3d 785, 789-90 (7th Cir.
1995) (citations and quotation marks omitted).
Mr. Santiago needed to prepare for trial on his
own—a process that, given the intransigence of the prison
officials—might well have required the preparation of
30 No. 07-1219
interrogatories and to take depositions so that he
could determine whether any of the defendants had the
requisite knowledge to give rise to an Eighth Amendment
violation and to discover the identity of Dr. John Doe.1 2
The district court observed that Mr. Santiago understood
the facts of his case, because he was a witness to most
of the relevant conduct. R.72. It further pointed out that
he is literate and can follow the rules of procedure. Id. The
court, however, failed to consider whether Mr. Santiago’s
litigation capabilities were sufficient for conducting the
sort of discovery that was necessary in this particular
case and under the unique and difficult circumstances
of this case.
One further matter must be noted. In denying
Mr. Santiago’s motion for the appointment of coun-
sel, the court made a definitive ruling that Mr.
Santiago did not need counsel at the pretrial stage of the
proceedings.13 This determination, unlike its denial of
earlier requests for the appointment of counsel, was
12
The dissent’s assertion that such discovery tools are not
necessary in this case appears to be based on a categorical
estimation of how prisoner civil rights claims ought to be tried
rather than on a fair evaluation of this record. In the end, the
question of how to proceed in discovery in the face of uncooper-
ative public defendants is a matter best left to the plaintiff and
his counsel under the supervision of the trial court. These
matters are not susceptible to categorical pronouncements
from an appellate perspective.
13
“Plaintiff is competent to represent himself throughout
the pretrial phase of this litigation.” R.72 at 2.
No. 07-1219 31
articulated in definitive terms that would have made it
clear to many attorneys, and certainly to Mr. Santiago,
that the court did not intend to revisit the matter unless
and until a trial was a significant likelihood. While the
court well may have thought that it was time to end
Mr. Santiago’s requests, we also must be concerned as
to whether such an approach prematurely deterred
Mr. Santiago from renewing his request as he encoun-
tered strong headwinds in his later attempts to conduct
discovery. While Pruitt makes clear that we cannot take
into account post-request performance to determine
whether the district court abused its discretion in
denying a request for counsel, 503 F.3d at 656, we
certainly can question, as we must here, whether the
language of the district court in disposing of the matter
impermissibly prevented Mr. Santiago from making later
requests that would have been reviewable in this court.
We emphasize that the problem we discuss here is not
the issue that divided some members of the court in
Pruitt. There, a minority of the court expressed the belief
that a trial judge has a continuing obligation to reassess
whether a pro se litigant can proceed without counsel.
Here, by contrast, we have the very different question
of whether a trial judge ought to announce in advance
that he will not return to the question, thus, as a practical
matter, leaving the pro se litigant without recourse if the
opposing party, free of judicial scrutiny, makes matters
more difficult than the judge estimated they would be-
come.
As we discuss at some length later, the court’s announce-
ment that it would not hear another request for appoint-
32 No. 07-1219
ment of counsel during pretrial matters was not lost on
the defendants. Free from any accountability from the
district court until trial, they saw no reason to be coopera-
tive as Mr. Santiago struggled to collect the information
needed at trial. Pruitt says that a district court need not
revisit a request for counsel once it had made a decision
on the matter. It did not say that a court could announce
in advance that it would not, under any circumstances,
entertain a new request no matter how a litigant was
treated in the future. There is a world of difference, both
theoretical and practical, between these two situations.
The dissent’s failure to acknowledge the importance of
this difference constitutes an unwarranted attempt to
expand Pruitt beyond the limitations set by the en banc
court.
In assessing the peculiar circumstances of this case as
revealed by our careful study of the record, we have
kept in mind the great deference that we owe to the
district court in this matter. However, review under an
abuse of discretion standard is not the equivalent of
no review at all, and scrutiny of the record for methodolog-
ical lapses is well within the duty and the capability of
an appellate court, as long as it confines itself to the
record and omits from its estimations any predilections
of its own. Here, we must conclude that the district
court failed to take into consideration the peculiar circum-
stances of this case that made the pretrial phase of this
litigation especially difficult for this particular plaintiff.
This case presents an unusual confluence of circum-
stances—relatively difficult allegations to prove, confine-
ment in another facility during trial preparation, the
No. 07-1219 33
inability to identify parties and witnesses, and a
decidedly uncooperative prison administration who
had the assurances of the magistrate judge that it
would not have to worry about a lawyer being
around during the discovery period. Undertaking discov-
ery in this particular combination of circumstances
made the playing field anything but level. This combina-
tion of circumstances may not always warrant the recruit-
ment of counsel, but, on this record, the magistrate
judge’s methodological lapse in failing to give full con-
sideration to each factor constitutes an abuse of discre-
tion. The situation here is qualitatively different from
typical prison litigation. Given the district court’s failure
to consider all these factors in evaluating Mr. Santiago’s
request for counsel, we must conclude that the district
court deviated from the accepted approach to such a
degree that we cannot let the judgment stand even
under the deferential standard of review that we employ
in these cases. Again, we do not, as the dissent charges,
substitute our judgment for that of the trial court. We
simply require that the district court consider all of the
factors that the law requires it to consider in making
its judgment.
4.
Our task is far from over. Pruitt makes clear that, even
if we determine that the district court’s denial of the
appointment of counsel was an abuse of discretion, we
should not reverse unless there has been a showing
of prejudice. See Pruitt, 503 F.3d at 654. “[P]rejudice may
34 No. 07-1219
be established by a litigant’s poor performance before or
during trial.” Id. at 659. This includes evidence from
the record that “demonstrates that the pro se plaintiff
was incapable of engaging in any investigation[] or lo-
cating and presenting key witnesses or evidence.” Id. We
engage in a totality-of-the-circumstances review of the
proceedings to determine whether there is a reasonable
likelihood that the presence of counsel would have
altered the outcome in this case. Id. at 660.
We begin by noting that Mr. Santiago’s later attempts
to conduct relevant discovery were not successful. As
we have chronicled in the early part of this opinion,
although the district court apparently expected him to
negotiate with prison officials with respect to his infor-
mation needs, he hardly found a receptive, or cooperative,
ear. The treatment afforded him by the defendants
was not, it is safe to say, the same treatment that would
have been afforded a member of the bar. As we also
have noted earlier, the court’s definitive disposition of his
last motion for the appointment of counsel reasonably
could have been interpreted as precluding reapplication
during the pretrial discovery period. 1 4 The defendants
14
The defendants submit that Mr. Santiago was not prejudiced
by his lack of counsel, because the court-recruited counsel
did not seek to reopen discovery. We disagree. Notably, the
appointment of counsel was made “only for purposes of trial.”
R.173. Mr. Santiago’s attorney made his first appearance on
December 5, 2006—nearly two years after the close of dis-
covery and three-and-a-half years after Mr. Santiago’s com-
(continued...)
No. 07-1219 35
apparently interpreted the district court’s order in that
way, and Mr. Santiago came upon his trial date with
little to show for his efforts.
Mr. Santiago clearly has established prejudice by virtue
of his poor performance before and during trial. As
foreshadowed by Billman, the district court was forced to
drop Dr. John Doe as a defendant prior to trial because
Mr. Santiago was unable to ascertain his identity. At
trial, Mr. Santiago’s only witness was Harris—the inmate
who had threatened him. No witnesses to any of the
assaults appear to have been found. Mr. Santiago’s inabil-
ity to identify key witnesses, depose the defendants and
gather pertinent evidence such as the surveillance tapes
hindered his ability to present his case. An attorney could
have helped perform all of these tasks and would not have
been deterred by the defendants’ claim that inmate-
witnesses were “not relevant.” R.85, Ex. A at 2. We there-
fore must conclude that the assistance of counsel during
discovery could have strengthened Mr. Santiago’s case
“in a manner reasonably likely to alter the outcome.” 1 5
14
(...continued)
plaint was filed. The district court stated clearly that it believed
Mr. Santiago was capable of completing discovery on his own
and that counsel was necessary for trial purposes only. Because
Mr. Santiago’s counsel had no reason to believe that the court
was willing to reopen discovery, we do not believe that his
failure to seek additional discovery should bar Mr. Santiago
from establishing prejudice.
15
As we have noted, the dissent speculates that, despite the
clear limitations we have expressed, our holding today will be
(continued...)
36 No. 07-1219
Pruitt, 503 F.3d at 660. Mr. Santiago has established the
requisite prejudice.
Finally, we reiterate once again that the task we
have undertaken is simply to apply well-established
principles, including those recently articulated in Pruitt, to
the record that has come before us in this case. Therefore,
although the principles of law we articulate are well-
established, our precise holding is limited to the facts
and circumstances found in the record of this litigation.
In that sense, our holding, like a special railroad fare, is
limited “to this day and this train only.”
15
(...continued)
read by the district courts of this circuit as an instruction to
“ ‘move the exercise of discretion toward recruitment of
counsel more often than not.’ ” Dissent at 48-49 (quoting Pruitt,
503 F.3d at 661). The consequence, according to the dissent, is
the imposition of “a cost to the bench and bar alike.” Id.
We reiterate once again that our decision today is not intended
to place any “thumb on the scale,” dissent at 37, of the rea-
sonable exercise of discretion by the district court. It would be
a gross misreading of our decision for any member of the
bench or bar to read our decision as requiring anything
more than adherence to principles of settled law.
The en banc decision in Pruitt ably balanced the interests at
stake and set them forth in measured tones. We take this
language at face value and take seriously the limited appellate
task that it defines.
No. 07-1219 37
Conclusion
For the foregoing reasons, we affirm in part and reverse
in part the judgment of the district court and remand this
case for further proceedings consistent with this opinion.
No costs shall be awarded in this court.
A FFIRMED in part;
R EVERSED and R EMANDED in part
S YKES, Circuit Judge, dissenting. I agree with my col-
leagues that the district court properly dismissed Count
One of the complaint, in which Santiago alleged that
Correctional Officers Rednour and Butler failed to
protect him from Harris, a fellow inmate at the Menard
Correctional Center. I also agree that the district court
properly dismissed Count Two, which alleged that
Sgt. Suemnicht and “C.O. John Doe” used excessive
force in breaking up the fight between Harris and
Santiago in the prison cafeteria. I disagree, however, with
the decision to reinstate Count Four. That claim—alleging
that Warden Walls failed to protect Santiago from an
attack by his cellmate Castro—was also properly dis-
missed for reasons I will explain in a moment.
More significantly, I cannot agree that the district court
abused its discretion by declining to recruit pro bono
counsel for Santiago during discovery. In Pruitt v. Mote,
503 F.3d 647 (7th Cir. 2007) (en banc), we held that 28
U.S.C. § 1915(e)(1) places no thumb on the scale either
38 No. 07-1219
for or against recruiting volunteer counsel for an
indigent litigant, either in general or in any particular
category or type of case. Id. at 654. We also held that a
district court’s decision not to recruit counsel is entitled
to substantial deference on appeal. Id. Unlike my col-
leagues, I see no abuse of discretion in the way in
which the magistrate judge handled Santiago’s various
requests for recruited pro bono counsel during the
course of this case. Accordingly, I respectfully dissent.
First, I disagree with the majority’s conclusion to rein-
state Count Four, which alleged that Warden Walls failed
to protect Santiago from assault by Castro. As applicable
here, this claim has the following two elements: (1) that
Santiago was incarcerated under conditions posing a
substantial risk of serious harm; and (2) that Warden Walls
was deliberately indifferent to that risk, that is, that he
personally knew of the risk and deliberately disregarded
it. Farmer v. Brennan, 511 U.S. 825, 834 (1994); Pinkerton v.
Madry, 440 F.3d 879, 892 (7th Cir. 2006). Santiago
attached a copy of the grievance relevant to this claim as
an exhibit to his complaint. Based on the contents of
that grievance, he pleaded himself out of court.
The grievance is dated June 2, 2002—four days before
Santiago’s fight with Castro—and it was filed directly
with the warden’s office. In this grievance Santiago
notably did not complain that he was at risk of serious
harm from Castro, nor did he complain that Castro has
a history of assaulting cellmates. Instead, he lodged a
more general objection to his current cellmate—whom
he did not name—and said that this inmate should have
No. 07-1219 39
been placed on his “enemies list.” He also claimed that
unnamed prison employees were retaliating against
him by “placing me in cells with inmates they knew
I wouldn’t be able to live in the same cell with with [sic]
the same intentions of provoking me into a physical
confrontation and keeping me in the segregation unit.”
He contended further that these prison employees “con-
tinue to either provoke me into altercations of confronta-
tion or place me into physical confrontations with other
inmates.” Finally, he said: “I am currently being housed
with another inmate, dispite [sic] my numerous
request [sic] for single cell.”
Read generously, this grievance at most establishes that
Warden Walls was aware that Santiago wanted a single
cell to avoid being provoked into confrontations with
cellmates he couldn’t get along with and that his cur-
rent cellmate should have been on his “enemies list” for
unstated reasons. It also establishes that the warden was
aware that Santiago accused unnamed prison employees
of placing him in situations that would provoke him
into altercations with other inmates and claimed these
employees were motivated by a desire to keep him con-
fined in the segregation unit. Importantly, the grievance
does not say Santiago feared being attacked by his cell-
mate. Instead, Santiago complained that he might be
“provoked” into assaulting his cellmate or another inmate.
Based on the contents of this grievance, Santiago cannot
prevail. As a matter of law, Warden Walls cannot have
been deliberately indifferent to a risk that Santiago
would be attacked by his cellmate when the grievance
in question alerted the warden to an entirely different
40 No. 07-1219
sort of risk—a risk that Santiago himself might attack
another inmate.
There is an additional reason not to reinstate this claim.
Although Santiago alleged in his complaint that Castro
attacked him, at trial he told quite a different story—one
more consistent with the contents of the grievance.
He testified that he and Castro were having a heated
argument about flushing the toilet in their cell, that the
argument escalated, and that he—Santiago—threw the
first punch. A full-blown fight ensued and he got the
worst of it, sustaining various injuries. In my judgment,
on remand the warden would be entitled to summary
judgment based on Santiago’s trial testimony. Santiago
cannot recover on his claim that the warden was deliber-
ately indifferent to a risk of harm from Castro when
Santiago himself started the fight. I would affirm the dis-
missal of Count Four.
This brings me to the majority’s reversal of the district
court’s decision not to recruit pro bono counsel until the
time of trial. In Pruitt this court sat en banc to clarify the
legal standards that guide the district court’s exercise
of discretion when confronted with a request for recruit-
ment of pro bono counsel under 28 U.S.C. § 1915(e)(1).
We held that when an indigent plaintiff requests coun-
sel under § 1915(e)(1), the district court must make the
following inquiries: “(1) has 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?” Pruitt, 503 F.3d at 654. We further held
No. 07-1219 41
that “[a]lthough [§ 1915(e)(1)] ‘legitimizes’ the court’s
request for a pro bono lawyer, its language suggests
no congressional preference for recruitment of counsel
in any particular circumstance or category of case.” Id.
(quoting Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.
2006)).
We also addressed the separate question of the appel-
late standard of review, emphasizing that appellate
review—for abuse of discretion only—is limited and
highly deferential. “As with any discretionary deter-
mination, the question on appellate review is not
whether we would have recruited a volunteer lawyer in
the circumstances, but whether the district court applied
the correct legal standard and reached a reasonable
decision on facts supported by the record.” Id. at 658.
The majority notes the district-court and appellate
standards from Pruitt but essentially undertakes a wholly
independent analysis of Santiago’s request for pro bono
counsel, requiring recruitment of counsel during the
discovery phase of this case for basically two reasons:
(1) Santiago’s claims require proof that prison officials
were deliberately indifferent to a risk to his safety; and
(2) Santiago had been transferred to another prison by
the time he filed his lawsuit. The first of these factors is
present in many prisoner cases; as such, the majority’s
holding could be understood to suggest a general rule
requiring pro bono counsel in deliberate-indifference
cases. The second factor is also not uncommon and is not
significant enough to warrant reversal of the magistrate
judge’s discretionary decision.
42 No. 07-1219
Our decision in Pruitt specifically addressed the limited
nature of the appellate role in reviewing a district court’s
decision not to recruit pro bono counsel: “[W]e do not
undertake our own analysis of the degree of case dif-
ficulty as against the plaintiff’s competence to litigate
it himself; that is the district court’s inquiry, not ours.” Id.
We emphasized the district court’s superior position
to evaluate requests for pro bono counsel and reiterated
that the reviewing court’s inquiry asks only whether the
court’s decision was reasonable: “ ‘We ask not whether
[the judge] was right, but whether he was reasonable.’ ”
Id. at 659 (quoting Farmer v. Haas, 990 F.2d 319, 322
(7th Cir. 1993) (alteration in original)). Properly focused,
then, appellate review of decisions declining to recruit
counsel under § 1915(e)(1) will result in reversal only
in the rare case where the district court’s decision is
based on an error of law or clearly erroneous factfinding,
or is arbitrary or irrational. Id. at 658.
The magistrate judge’s decision here suffers from none
of these infirmities. Though he decided the matter
before Pruitt was issued, the judge touched all the bases.
First, he specifically addressed the nature of Santiago’s
claims—excessive force, failure to protect, insufficient
medical care, and retaliation—and concluded they were
not overly complex in the circumstances of this case. The
judge then evaluated Santiago’s capabilities and the
resources available to him in prison, as Pruitt requires.
The judge noted that Santiago is literate, understood the
nature of his claims, and had demonstrated the ability
to “comprehend and follow rules of procedure.” The
judge further noted that Santiago had “personal knowl-
No. 07-1219 43
edge of the relevant facts” and reasonable access to docu-
ments, postal services, a library and legal materials,
and photocopying services. The judge reserved judg-
ment about whether Santiago would be competent to try
his own case but concluded that he was competent to
handle the “pretrial phase of this litigation.” However
strongly my colleagues may disagree with this decision,
nothing in the judge’s reasoning reflects an abuse of
discretion.
As I have noted, the majority has focused on essentially
two factors: (1) the supposed complexity of proving
deliberate indifference; and (2) the fact that Santiago had
been moved to a different prison by the time he filed
his case. Taken individually, neither of these factors
justifies reversal under our deferential standard of
review; nor are they enough considered together to call
into question the magistrate judge’s exercise of discretion.
Santiago’s case included claims of excessive force,
failure to protect, delayed or insufficient medical care, and
retaliation, all stemming from two fights in the prison. I
do not agree that the state-of-mind elements in these
claims are either inherently complex or uniquely difficult
in the circumstances of this case.1 Each defendant’s
1
The cases the majority cites—Swofford v. Mandrell, 969 F.2d 547
(7th Cir. 1992); Merritt v. Faulkner, 697 F.2d 761 (7th Cir.
1983)—predate Pruitt and must be read in light of the principles
explained in our en banc decision. To the extent these cases
suggest deliberate-indifference claims are inherently too
(continued...)
44 No. 07-1219
state of mind is inferred primarily from the circumstances
surrounding the assaults in question and the grievances
Santiago filed alerting prison officials to his complaints
about Harris and Castro. As the magistrate judge
properly noted, Santiago had personal knowledge of
these facts and circumstances and did not require assis-
tance of counsel to discover them.
The majority concludes that Santiago was incapable of
conducting discovery on his own—in particular, that he
was incapable of preparing interrogatories and taking
depositions “so that he could determine whether any of
the defendants had the requisite knowledge to give rise
to an Eighth Amendment violation and to discover the
identity of Dr. John Doe.” Maj. op. at 30. The identity of
Dr. John Doe was obtainable by simple interrogatory
or document request; nothing in the record suggests
Santiago was incapable of submitting such a straightfor-
ward question to the defendants himself. And I am
hesitant to conclude from our appellate-court vantage
point that this case required depositions to probe state-of-
mind issues. It bears repeating that it is the district court’s
prerogative—not ours—to determine whether a pro se
litigant is generally capable of navigating pretrial discov-
ery under the particular circumstances of the case. Al-
though my colleagues disagree with the magistrate
judge’s assessment of Santiago’s competence to handle
1
(...continued)
complex for an indigent pro se litigant, they have been super-
seded by Pruitt.
No. 07-1219 45
the pretrial preparation of his case, the judge’s decision
was hardly unreasonable—and that is the appropriate
question on appellate review. See Jackson v. Kotter, 541
F.3d 688, 700 (7th Cir. 2008) (applying Pruitt and deferring
to the district court’s decision declining to recruit counsel
in a case involving similar allegations of excessive force,
deliberate indifference, and inadequate medical care).
It is true the magistrate judge did not consider the fact
that during the pendency of his case, Santiago was incar-
cerated at a prison other than Menard, where the events
at issue took place. It is not clear why this should make
any difference, let alone a difference significant enough
to displace the magistrate judge’s decision. The majority
does not explain why a prisoner’s incarceration at a
different prison makes discovery inherently more diffi-
cult. With the exception of depositions, discovery is
conducted largely through written requests; depositions
are initiated upon written notice and, to the extent they
are necessary, obviously need not be conducted at the
place where the events at issue in the litigation occurred.
The magistrate judge specifically considered Santiago’s
capabilities and the resources available to him, noting he
was literate and had access to documents, postal services,
a law library, and photocopying services to assist him
in preparing his discovery requests. In my view, the
judge’s failure to separately address Santiago’s incarcera-
tion at a different prison is not significant enough to
warrant reversal under our deferential standard of review.
The majority also takes issue with the magistrate
judge’s language in his order denying Santiago’s fourth
46 No. 07-1219
motion for counsel, suggesting it “impermissibly pre-
vented Mr. Santiago from making later requests that would
have been reviewable in this court.” Maj. op. at 31. With
respect, I find this criticism of the judge particularly
unwarranted. We held in Pruitt that the district court
has no duty to monitor whether an indigent litigant is
competently litigating his claims throughout the litiga-
tion and therefore no obligation to revisit an earlier
denial of pro bono counsel. Pruitt, 503 F.3d at 658. We
acknowledged, however, that the court has the discretion
to proceed incrementally on this question if it chooses,
id., and that’s exactly what the judge did here. The judge
held that Santiago was “competent to represent himself
throughout the pretrial phase of this litigation” but that
his skills “may not suffice at trial,” and on this basis
denied Santiago’s request for pro bono counsel “without
prejudice to his right to seek representation for purposes
of trial.” The judge later recruited pro bono counsel to
represent Santiago at trial.
The majority faults the judge for using the language
I have quoted, saying it was too “definitive” and may
have inhibited further requests for counsel during dis-
covery. Maj. op. at 30-31. This is highly doubtful. Prison
inmates generally are not shy about filing motions and
are not often deterred by concerns about trying the
court’s patience. More importantly, the majority has
effectively suggested that the district court must proceed
incrementally on the question of recruitment of counsel,
always keeping the matter open for further review at any
point along the way. We specifically held in Pruitt
that there is no such rule. 503 F.3d at 656-58.
No. 07-1219 47
Finally, a few words about the majority’s prejudice
analysis. The majority notes that the claim against Dr. John
Doe was dismissed prior to trial because Santiago
could not identify him and suggests this is evidence of
prejudice. As I have already explained, there was nothing
that prevented Santiago from discovering the doctor’s
identity. All it took was a simple interrogatory question
or document request; assistance of counsel was not re-
quired for that. The majority also concludes that
Santiago’s inability to locate other witnesses to the
assaults and “gather pertinent evidence such as the
surveillance tapes” hampered his ability to present his
case. Maj. op. at 35. But it’s important to focus on the
crux of the claims that actually went to trial. Four counts
survived screening and proceeded to trial: Count Three,
against Correctional Officer Keys for allegedly yanking
on Santiago’s handcuffs while escorting him from the
infirmary to segregation after the fight with Harris;
Count Five, against Warden Walls for allegedly failing to
protect Santiago by housing him in the same cell block
as Harris; Count Six, against Correctional Officers Jines
and Cox for allegedly failing to provide medical treat-
ment after the Castro assault; and Count Seven, against
Walls and Keys for retaliation. Notably, none of these
counts involved a dispute between the parties about the
basic facts of either the fight between Santiago and
Harris or the fight between Santiago and Castro. Rather,
the dispute centered on what happened before and after
the fights, and the witnesses to these events were
Santiago and the defendant prison officials. Accordingly,
identifying additional witnesses would not have made
a difference.
48 No. 07-1219
As for the “surveillance tapes,” there is nothing in the
record to suggest that anything relevant to the surviving
counts was captured on surveillance videotape. Santiago
believes there was a surveillance camera on the route
from the prison cafeteria (where the fight with Harris
occurred) to the infirmary and also across from a holding
cell outside the segregation unit. The record does not
substantiate this. It is not, in any event, enough to estab-
lish prejudice, which requires “a reasonable likelihood that
the presence of counsel would have made a difference
in the outcome of the litigation.” Pruitt, 503 F.3d at 659.
Speculation that surveillance videotape might exist (seven
years after the fact) and might contain relevant evidence
is simply too slim a reed to support a finding of prejudice.
In the end, I return to a concluding point we made
in Pruitt:
The principles reiterated here are intended to
ensure that requests for pro bono counsel are
resolved according to a consistent framework
calibrated to the nature of the discretionary judg-
ment called for by § 1915(e)(1). They are not meant
to move the exercise of discretion toward recruitment
of counsel more often than not, or more often than
is now the case; we repeat that the inquiry is indi-
vidualized to the plaintiff and the case before
the court.
Id. at 661 (emphasis added). For the reasons I have ex-
plained, the majority’s decision in this case may have
the effect of suggesting to our district judges that they
had better “move the exercise of discretion toward re-
No. 07-1219 49
cruitment of counsel more often than not” and “more
often than is now the case.” Id. This will come at a cost
to the bench and bar alike and was manifestly not what
we intended in Pruitt. For all the foregoing reasons,
I would affirm the judgment of the district court.
3-29-10