concurring in part and dissenting in part.
I agree that it was an abuse of discretion for the district judge to deny Merritt’s untimely request for a jury trial. A prisoner not represented by counsel, even one assisted as here by “lay advocates” (also known as “jailhouse lawyers”), is entitled to every indulgence in the court’s procedural rulings. See Lewis v. Faulkner, 689 F.2d 100, 102 (7th Cir.1982). This is the corollary to a policy, which I favor, of not appointing counsel in civil cases except in the most unusual circumstances. It is unfair to deny a litigant a lawyer and then trip him up on technicalities. I doubt, though, that this case will go to trial again. Probably the defendants will move for summary judgment; and for reasons to appear in a moment, probably the motion will be granted.
I disagree, however, that it was an abuse of discretion for the district court not to appoint counsel for Merritt. For reasons explained in my dissenting opinion in McKeever v. Israel, 689 F.2d 1315, 1324-25 (7th Cir.1982), I believe the presumption should be against appointment of counsel in prisoner civil rights cases. One of the reasons given in my dissent in McKeever is especially applicable to this case. I said that a prisoner who has a good damages suit should be able to hire a competent lawyer and that by making the prisoner go this route we subject the probable merit of his case to the test of the market. Merritt alleges that the defendants are legally responsible for his blindness. If this were so, he would have a case that was attractive to many personal-injury lawyers, even apart from the fillip of an award of attorney’s fees if the plaintiff prevails that 42 U.S.C. *770§ 1988 adds almost as a matter of course (see Kerr v. Quinn, 692 F.2d 875 (2d Cir.1982)) when a personal-injury case is brought under one of the civil rights acts. If Merritt cannot retain a lawyer on a contingent fee basis the natural inference to draw is that he does not have a good case.
It is reasonably clear to me that he does not have a good case, so I am not surprised that he did not find a private lawyer willing to represent him. The pathetic facts recited in the majority opinion are not the facts found below. They are the facts Merritt would have liked the district court to find. The district court found that the cause of Merritt’s blindness was and remains unknown, that he received continuous, competent, and in fact solicitous medical care, some of it at an outstanding university hospital, and that if this were a medical malpractice case the defendants would be entitled to a directed verdict in their favor. A fortiori, Merritt failed to prove a “deliberate indifference” to his medical needs, as would be necessary to show a violation of the Constitution and hence of 42 U.S.C. § 1983, the civil rights statute under which this suit was brought. Estelle v. Gamble, 429 U.S. 97, 104, 97 S.Ct. 285, 291, 50 L.Ed.2d 251 (1976). As Merritt’s appeal does not challenge the district court’s findings, we ought not adopt a version of the facts that the district court rejected. And we ought not draw inferences so fanciful that Merritt’s court-appointed counsel in this court does not so much as hint that they might have any basis in fact. I refer to the court’s suggestion that the prison officials may have known that their medical facilities were inadequate yet failed to take steps to remedy this deficiency.
The majority regards the right of an indigent prisoner to appointment of counsel in a civil case as a natural, maybe inevitable, outgrowth of the Supreme Court’s decisions entitling indigent criminal defendants to assistance of counsel. But all other differences between the civil and criminal settings to one side, a plaintiff in a damages case has better access than a criminal defendant to the private market in lawyers. The criminal defendant does not get a sum of money out of which he can pay his lawyer if he wins. But a prisoner who can prove he was wrongfully blinded can look forward to a very big money judgment to share with his lawyer and to an award of attorney’s fees under section 1988 besides. I do not think we need worry that a prisoner who has a good case will have difficulty getting the name of a lawyer. Merritt himself had the name of a lawyer—he moved for the appointment of a specific lawyer. If Merritt had had a good case this or another lawyer would have been happy to handle it on a contingent-fee basis, with the prospect of an award of attorney’s fees under 42 U.S.C. § 1988 as an additional inducement. The picture of a blind man in hopeless quest of a lawyer who will handle his pitiable cause is not realistic. Every prisoner knows at least one lawyer: the lawyer who represented him at his criminal trial. Every prisoner has access to the jailhouse lawyers, who can put him in touch with lawyers on the outside. There is no suggestion in this case that Merritt in particular or prisoners in general have difficulty getting the names of lawyers; but if they do, let us order the district judges to supply them with names; let us not decree a lawyers’ draft.
I said in my McKeever dissent that I was afraid that our circuit is moving toward routine appointment of counsel in prisoner civil rights cases. This case takes us another step down that road. The district judge in this case unlike the judge in McKeever exercised his discretion on the question whether to appoint counsel. But that exercise is given no weight. The panel substitutes its own judgment; it honors the abuse of discretion standard (Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981) (per curiam)) in the breach. Although it lists five reasons why it would be an abuse of discretion not to appoint counsel to represent Merritt, four ring changes on the same theme: the complexity of the issues. (The fifth is that if the allegations of the complaint are correct Merritt has a good case. This will be true in every case where the complaint states a cause of action under *771federal law.) The complexity stems from the fact that the issues are medical, and hence technical. Thus the analysis in the majority opinion implies that a prisoner is entitled to appointment of counsel in any personal-injury case where a medical issue is raised.
The court states: “An underlying assumption of the adversarial system is that both parties will have roughly equal legal resources.” This has never been an assumption of the adversarial system. We do not put a cap on the amount of money that a litigant can spend on lawyers; we do not inquire whether the litigants had roughly equal legal resources; we allow one to outspend the other by as much as he pleases. We count on the courts not to be overawed by the litigant with the higher-priced counsel. But, whether it is right or wrong, the goal of equalizing legal resources implies, I admit, that every indigent civil litigant should have, at the very least, counsel appointed for him; and I worry that this proposition may be the unstated premise of the majority opinion—the stated but unsupported premise of which is that Merritt had a good case yet, mysteriously, could not find a lawyer to represent him.
We are embarking on a program of appointing counsel for prisoners as a matter of course in civil cases without even considering the practical consequences. We ought to consider the burden on the bar in areas—most of which are not populous, and do not have large numbers of lawyers— where the major prisons in this circuit are located, such as Michigan City, Indiana, where Merritt is imprisoned; and we ought to consider the potential impact on the dockets of our busy district courts, and ultimately on our crowded docket, of “lawyerizing” prisoner civil litigation. I do not find a consideration of these issues in the majority or concurring opinion. We cannot expect Congress to dress the federal judiciary’s self-inflicted wounds.
The fact that Merritt is blind, though it contributes to the pathetic aura that the majority opinion radiates and though it is seized upon by the concurring opinion as a fact to distinguish this from the myriad other cases controlled by the logic of the majority opinion, has no relevance to the issues in this case—except, as I have emphasized, that it implies that Merritt could have hired a lawyer if he had had a good case in law. The lay advocates provided his eyes, and more: a blind prisoner represented by two lay advocates is better able to present an effective case than a prisoner who can see but, not being assisted by lay advocates or anyone else, must present his case by himself.