concurring.
Karl Marx said that every great event or personality appears twice in history: first as tragedy and then as farce. This case, a prisoner’s civil rights case, illustrates his adage, provided we do not insist on the greatness of the event. When the case was first here, four years ago, the judges on the panel (Judge Cudahy and I, and Senior Judge Swygert) engaged in a serious debate over whether the district judge should have appointed counsel to represent a blind prisoner who claimed that his blindness was due to the prison’s deliberate indifference to his medical needs and hence that the prison officials had subjected him to cruel and unusual punishment. See 697 F.2d 761 (7th Cir.1983). I argued that if Merritt really had a meritorious case, it was a money case, and he could have hired a lawyer on a contingent-fee basis (with the added inducement provided by the Civil Rights Attorney’s Fees Awards Act, 42 U.S.C. § 1988) to handle it; his failure to do so suggested to me that he did not have a meritorious case. See 697 F.2d at 769-71 (separate opinion). The contingent-fee contract is the usual method of financing personal-injury damage suits in this country, and, when a prisoner plaintiff has good prospects for a substantial damage award, is as usable in a prisoner’s constitutional-tort case as in any other tort case.
The majority rejected my analysis and ordered that Merritt be given counsel to represent him in a new trial, predicting that “when properly presented the evidence in this case will consist of quite complex and probably contradictory evidence from medical experts, the plaintiff, and the defendants. Testing their opinions and their credibility will require the skills of a trained advocate to aid the factfinder in the job of sifting and weighing the evidence.” Id. at 765. Judge Cudahy wrote a concurring opinion in reply to my (partial) dissent. He emphasized that “we are dealing here with a blind man.” Id. at 768. He suggested that “the laws of economics take a different turn when prison walls intervene.” Id.
From the start there was something fishy about this case. Merritt had stuck his thumb in his eye, and was complaining that the prison had neglected the injury and that as a result he had become blind. Yet the prison — it was uncontested — had *1156had him examined by an ophthalmologist, another physician, and an optometrist, all within two days of the accident, and later had taken him to the best medical center (that of Indiana University) in Indiana. While Merritt claimed that the doctors there had operated on the wrong eye, he did not name any of the doctors as defendants and it is hard to see how their negligence (if such there was) would translate into a violation of the Eighth Amendment. We have been at pains to stress the difference between negligence, which is not actionable under the Eighth Amendment, and the kind of reckless indifference to medical need that can violate the amendment. See, e.g., Duckworth v. Franzen, 780 F.2d 645, 652-53 (7th Cir.1985).
But however this may be, and whatever the merits of Judge Cudahy’s speculations about the domain of economics, the only fruit of the majority’s decision to order the appointment of counsel for Merritt in the district court has been to establish that Merritt’s suit is frivolous. Not only have his vision problems nothing to do with the Eighth Amendment; he may have been faking his blindness. The “settlement” that his appointed counsel (an experienced trial lawyer) negotiated on his behalf and that this court upholds today is a face-saving give-up. There is no award of damages, of other compensation, or of attorney’s fees; no injunction; no relief of any sort except that the dismissal is conditioned on the prison’s agreeing to pay for an annual eye check-up for Merritt at a designated clinic plus treatment at the state’s expense if indicated by the check-up. Since Merritt’s eye troubles are caused by sickle cell anemia, and there is no treatment for the underlying condition and little if any for its symptoms, Merritt may never receive any treatment. But if he does, it will be no less than he would be entitled to receive without the stipulation; for a prison is not allowed to neglect a prisoner’s serious medical condition of which it knows. (We were told at argument that Merritt’s parole is imminent, but it is unclear what effect that will have on the defendants’ agreement with him.)
Furthermore, the agreement is not embodied in a consent decree. There is merely a stipulation of dismissal, so that if the defendants violate the agreement Merritt will have no remedy by way of contempt, and probably no remedy at all except to reinstate this worthless suit. See McCall-Bey v. Franzen, 777 F.2d 1178, 1183-84 (7th Cir.1985). Merritt told the district judge that he would be happy to settle for an early release from prison (“All I want the state to do is grant me a medical release, and I can take it from there. No damage, they don’t have to give me anything”). He didn’t get that either. He has gotten nothing out of this suit, except to waste many people’s time.
Throughout this litigation Merritt has claimed to have only light perception in his right eye, and not even that in his left. On July 25, 1984, after we had remanded the case, the doctors at the University of Illinois Sickle Cell Eye Clinic in Chicago — the clinic later specified in the settlement agreement — examined Merritt’s eyes. When he said he couldn’t perceive light with his left eye, the doctors decided to test his statement by shining a bright light in that eye. He winced, and admitted he had light perception in that eye as well as in the right eye. The doctors thought he could see more than light — thought in fact that he should have 20/100 vision in his right eye and 20/50 in his left (he had a cataract in his left eye — otherwise the vision in that eye might have been normal), unless he was “suffering from some disorder posteri- or to the eye that we are unable to see.” A patient with 20/50 and 20/100 vision has keener eyesight than most federal judges.
The doctors sent Merritt to another specialist to find out whether there was indeed some “disorder posterior to the eye” that might account for Merritt’s claimed inability to see. This specialist, Dr. Fishman, examined Merritt on August 13, 1984, found no such disorder, and reported:
The patient claims to have lost all vision essentially since 1980_ Of great interest, the patient was able to identify the symbols on the American Optical HRR Plates_ The findings ... would strongly suggest that the patient’s vision *1157potential is considerably better than we are obtaining on standard acuity tests. Although the exact level cannot be quantified with great certainty, the probability exists that vision in the left eye is either within normal limits or is only minimally reduced. Regardless, with his ability to discriminate colors and have [sic] excellent stereo acuity, the patient’s vision cannot be hand motion or light perception. The level must be appreciably better.
The clinic next examined Merritt on January 22, 1986, and found no change in his condition. A letter that Merritt sent the district judge, dated October 28, 1985, and a motion that he filed with the court on June 18, 1986, both contain flawless signatures — right on the dotted line; not what you would expect from a blind man.
Merritt does have eye disease, though, and possibly it impairs his vision more than the three reports on which I have drawn, and the signatures, indicate. For on February 18, 1986, the same doctor who had signed the report of the January 22 examination, after stating that Merritt’s condition was due to sickle cell anemia, added: “Given the extent of Mr. Merritt’s visual loss, we doubt that a referral to a low vision specialist for telescopic or magnified glasses would help.” This doctor, however, had not seen the report by Dr. Fish-man.
What is not in doubt is that Merritt has greatly exaggerated his loss of vision and that such loss as he does have, the extent of which remains unclear, is due to sickle cell anemia, an incurable condition, rather than to the prison’s neglect of (let alone deliberate indifference to) the thumb-in-the-eye incident; and anyway there is no evidence of such neglect. The case is frivolous, because of Merritt’s total failure to prove either liability or causation; so he can hardly complain that the settlement provides him with only insignificant relief — annual eye examinations for a condition that is not treatable.
Prisoners, however heinous their crimes, are human beings, and have constitutional rights, which prison officials sometimes violate. But experience has shown that frivolous cases are the norm in prisoner civil rights litigation. Inmates have much time on their hands (especially long termers like Merritt, a first-degree murderer), and bountiful access to law libraries and the federal courts. Last year they brought 20,842 civil rights suits in federal district courts. 1986 Ann.Rep. of Director, Admin.Off. of U.S. Courts 176 (tab. C2). Inmates love turning the tables on the prison’s staff by hauling it into court. They like the occasional vacation from prison to testify in court. They enjoy being able to portray themselves as victims rather than predators. They delight in transmuting remorse for their criminal behavior into righteous indignation against their keepers. Their antics are not a free good, however; they waste the time of prison officials, federal judges, and, in this case, appointed counsel, who labored diligently in a barren vineyard. In Merritt’s first trial he was represented by two “lay advocates” (jailhouse lawyers) rather than a real lawyer, and managed to conceal the fakery in his claim of blindness, though he still lost the case. When a lawyer was appointed for him, the jig was up and a nominal settlement was the best that Merritt could hope for. He is not well named; the case has not merited two appeals to this court.
We should cast a colder eye on these cases. To speak with some understatement, prison inmates often lie. This is partly because criminals are less scrupulous than law-abiding people (the premise of Fed.R.Evid. 609(a), which allows the use of prior convictions to impeach a witness’s credibility), and partly because there are no effective sanctions for prisoners who bring frivolous suits or give untruthful testimony. We should not have been taken in so readily by the affecting tale of a blind prisoner who, by being forced to proceed to trial without a lawyer, was thwarted in his effort to bring to book the callous prison officials whose indifference to his medical needs caused him to go blind. If the tale were true, he could, despite his poverty, have hired a lawyer in the private market. His failure to do so, we now know, is evidence not that prison walls keep out the *1158laws of economics but that Merritt’s affecting tale was a fantasy.
There is a danger, well illustrated by this case, of misusing the power to appoint counsel, by deflecting lawyers from more to less meritorious cases. See Darden v. Illinois Bell Tel. Co., 797 F.2d 497, 504-05 (7th Cir.1986) (concurring opinion). The time that the lawyer appointed for Merritt spent on this case was time that this experienced trial lawyer could have spent on cases with greater promise. The supply of high-quality legal services is not unlimited; some potential plaintiff, somewhere, was denied counsel of his choice so that Merritt could harass the Indiana prison system. We judges should be more sensitive than we sometimes are to the invisible costs of our rulings, by which I mean the costs that the rulings impose on persons who are not parties to the immediate litigation. It is no answer that the average prisoner’s rights case is not a “big” case; we must multiply by 20,842 to get the aggregate burden of prisoner civil rights litigation on the federal court system. Mindful that attorneys’ time is not a free good that we can shift about as we please without harming other people who need legal services, we should let the market direct the allocation of those services in cases where there is an effective market in them; and does anyone doubt that there is vigorous competition among lawyers to represent on a contingent-fee basis tort plaintiffs with meritorious claims for substantial damages? Above all we should not be blinded by the sentimental appeal of the litigant to the repercussions of our decisions for the unrepresented community at large. Only if we take this lesson to heart will the mistake that this court made in ordering the appointment of counsel for Merritt be redeemed.