NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted June 29, 2021 *
Decided June 30, 2021
Before
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20-2435
JERMAINE A. HAMPTON, Appeal from the United States District
Plaintiff-Appellant, Court for the Eastern District of Wisconsin.
v. No. 19-cv-609
MARK RICHTER, et al., Nancy Joseph,
Defendants-Appellees. Magistrate Judge.
ORDER
Jermaine Hampton, a Wisconsin inmate, sued jail officials under 42 U.S.C. § 1983
for failing to protect him from another inmate’s attack and denying medical care for his
injuries. He filed three motions for the recruitment of counsel, all of which the district
court denied. The defendants ultimately moved for summary judgment. After that,
Hampton twice moved to extend discovery and, when the court denied his second
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-2435 Page 2
motion, he asked to dismiss his case without prejudice so he could refile it later with a
lawyer’s help. Instead, the court dismissed Hampton’s case with prejudice. Because the
court did not give Hampton an opportunity to withdraw his motion, we vacate and
remand for further proceedings with respect to that order. Otherwise, we affirm.
While housed at the Dodge Correctional Institution in Waupun, Wisconsin (he is
now at the Waupun Correctional Institution), Hampton was transferred to the
Sheboygan County Detention Center to appear for a court hearing. At that jail, another
inmate attacked Hampton, causing hand injuries and broken teeth and requiring
treatment in a hospital. Hampton contends that, before the attack, he asked jail officials
to place him in a different unit because his attacker had threatened to hurt him. He also
says that, after he returned from the hospital, the officials refused to treat his injuries.
Based on these allegations, Hampton sued Sheboygan staff. He also asked the
district court to recruit counsel, asserting that the issues were complex, that he lacked
legal training, and that his hand injury limited his ability to write. The district judge
denied his motion as “premature” because the defendants had not yet been served with
the complaint. Later, during discovery, Hampton filed a second motion to recruit
counsel, raising the same issues. The court—by then, the magistrate judge presiding by
consent under 28 U.S.C. § 636(c)(1)—denied the motion, explaining that Hampton could
litigate his case and participate in discovery pro se because the issues were
straightforward and Hampton’s filings had been coherent. The court assured Hampton
that, if he struggled to meet a deadline, he could request an extension of time. Two
months later, Hampton filed a third motion to recruit counsel. Recognizing this motion
as “virtually identical” to the second, the court denied it for the “same reasons.”
Discovery disputes began early. Hampton sought documents and answers which
the defendants did not produce. He filed seven motions to compel, all of which the
court denied. Two months after discovery closed, and one month after the defendants
moved for summary judgment, Hampton asked to reopen discovery. He had missed the
deadline, he explained, because his prison had gone into lockdown to prevent the
spread of COVID-19. The court gave Hampton two more months to complete discovery
but instructed him to limit his requests to the information necessary to respond to the
summary-judgment motion. A few weeks later, Hampton moved for a second
extension, asserting that the defendants had not produced the discovery he requested.
The court denied the motion, finding that Hampton had ignored its order to limit his
discovery requests and warning him that failure to respond to the summary-judgment
motion “will result in dismissal of this case.”
No. 20-2435 Page 3
Four days later, Hampton moved to dismiss his case without prejudice so he
could “file [his] claim at a later date.” The court dismissed the case, but “with prejudice,
because the defendants ha[d] expended a substantial amount of time and resources
participating in hearings, conducting and responding to discovery, and filing
dispositive motions.” See FED. R. CIV. P. 41(a)(2). Hampton’s deadline to respond to the
summary-judgment motion arrived two weeks later.
On appeal, Hampton argues that the district court abused its discretion by
dismissing his case with prejudice. He contends that the court ignored his explanation
that he wished to refile later, with an attorney’s help, because he was struggling to
obtain discovery on his own.
We agree that the district court abused its discretion in dismissing Hampton’s
case with prejudice, but not because it was required to grant Hampton’s motion
outright; rather, it did not give him an opportunity to continue litigating. See Carter v.
City of Alton, 922 F.3d 824, 826 (7th Cir. 2019); Babcock v. McDaniel, 148 F.3d 797, 799
(7th Cir. 1998) (“When a plaintiff moves for dismissal without prejudice, the district
court may not dismiss the action with prejudice without first providing the plaintiff a
reasonable opportunity to withdraw the motion.”). After Hampton asked for a
voluntary dismissal, the court dismissed his case and entered a final judgment on the
merits. That error was not harmless. First, Hampton never suggested that he would not
continue litigating if the court denied his motion to voluntarily dismiss, and he had
time left to respond to the summary-judgment motion. Indeed, his desire to continue
litigating was the express premise of his motion. Second, had the court dismissed
Hampton’s case without prejudice, refiling was an option until December 22, 2021. He
was attacked and allegedly denied treatment—i.e., his claim accrued, see Devbrow v.
Kalu, 705 F.3d 765, 767–69 (7th Cir. 2013)—on December 22, 2015. See WIS. STAT. § 893.53
(2015) (six-year limitations period for § 1983 claims); † Wallace v. Kato, 549 U.S. 384,
387–88 (2007) (federal courts borrow state statute-of-limitations law). The court did not
have to dismiss without prejudice, but Hampton’s request was not frivolous.
†
In 2018, Wisconsin amended the relevant limitations period from six years to
three years. See WIS. STAT. § 893.53. But that amendment was not retroactive, and so the
six-year limitations period in effect when Hampton’s claim accrued is applicable to his
suit. See Gutter v. Seamandel, 308 N.W.2d 403, 411 (Wis. 1981) (explaining that, without
express language or legislative intent for retroactive effect, substantive statute-of-
limitation amendments apply only prospectively).
No. 20-2435 Page 4
Hampton also argues that the district court abused its discretion in denying each
of his motions to recruit counsel. He maintains that the court did not afford enough
weight to the factual complexity of his claims and his lack of legal training. The court,
he says, also overlooked his limitations in pursuing discovery from a prison that was on
lockdown when discovery closed.
We do not discount these difficulties, but the district court reasonably denied
Hampton’s motions. When presented with such a motion, a district court must consider
whether the litigant made reasonable attempts to find a lawyer and whether, given the
difficulty of his case, he appears competent to litigate it himself. Pruitt v. Mote, 503 F.3d
647, 654–55 (7th Cir. 2007) (en banc). Here, the court applied the Pruitt factors to
Hampton’s motions. In denying the first, the court reasonably explained that the case
was still in its infancy, and so it could not yet gauge Hampton’s need for counsel.
See Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010). In denying the second and
third motions, the court properly considered the requests relative to the complexity of
the stage of his case, see Walker v. Price, 900 F.3d 933, 938–39 (7th Cir. 2018), and assured
Hampton that he could request an extension to complete discovery. The record
therefore supports the reasonableness of the district court’s rulings. Our decision,
however, does not restrict Hampton from renewing his request for counsel on remand.
We therefore VACATE the dismissal with prejudice and REMAND for further
proceedings. We AFFIRM with respect to the denial of the motions to recruit counsel.