Eduardo Navejar v. Akinola Iyiola

In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1182

E DUARDO N AVEJAR,

Plaintiff-Appellant,

v.

A KINOLA IYIOLA , et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 09 C 4108—Virginia M. Kendall, Judge.

S UBMITTED A PRIL 19, 2013 Œ —D ECIDED M AY 29, 2013

Before E ASTERBROOK, Chief Judge, and W ILLIAMS

and H AMILTON, Circuit Judges.

P ER C URIAM. Eduardo Navejar, an Illinois state

prisoner, brawled with a prison guard. He swears that

Œ

After examining the briefs and record, we have concluded

that oral argument is unnecessary. Thus, the appeal is sub-

mitted on the briefs and the record. See F ED . R. A PP .

P. 34(a)(2)(C).

2 No. 12-1182

after guards subdued and handcuffed him, they

kicked, stomped, and pepper-sprayed him twice, and

then they denied him adequate medical care. The dis-

trict court denied his motions to recruit counsel and later

entered summary judgment for the guards on his

claims that they violated the Eighth Amendment. On

appeal Navejar argues that the court erred by refusing

to recruit counsel for him. Because the court applied

the wrong legal standard to Navejar’s motion, and the

lack of counsel prejudiced him, we reverse.

We assume that the following factual allegations of

the complaint are true and draw all possible inferences

in favor of Navejar. Biblia Abierta v. Banks, 129 F.3d 899,

902 (7th Cir. 1997). Navejar was imprisoned in State-

ville Correctional Center in 2008. One evening while

proceeding to the cafeteria, Navejar spoke to other

inmates in their cells. Akinola Iyiola, a lieutenant at the

prison, ordered him to get out of the cafeteria line

because prison rules forbid inmates, while being trans-

ported, from stopping to speak to other inmates. Navejar

disobeyed the order, became belligerent, and punched

Iyiola. Other guards soon converged on the scene to

assist Iyiola, and they wrestled Navejar to the ground

where he was soon handcuffed.

Navejar described in an affidavit and at his deposi-

tion the force that guards used after they handcuffed and

subdued him. He testified that Iyiola kicked him in

the forehead near his eye, and an unidentified guard

stomped his head against the ground. Next another

guard, Sergeant Michael Grant, pepper-sprayed Navejar.

No. 12-1182 3

Guards then dragged Navejar along the floor and

carried him down some stairs where Iyiola sprayed

more pepper spray in Navejar’s face. Guards then

left Navejar alone for a half-hour in a segregation cell,

while he screamed in pain, before he was allowed to

wash off the pepper spray.

The next morning a guard brought Navejar to State-

ville’s health care unit, where nurses examined him.

But before a doctor could provide medical attention,

Lieutenant Glen Elberson escorted Navejar out of the

health care facility, explaining that he was being trans-

ferred to Pontiac Correctional Center. That afternoon at

Pontiac, Navejar was examined by a physician, who

concluded, after administering X-rays, that he had

suffered only bruises and scratches.

Prison officials investigated the clash between Navejar

and Iyiola and charged Navejar with four disciplinary

violations: assaulting prison staff, creating a dangerous

disturbance, insolence, and disobeying an order, all

of which he denied. After a hearing, the disciplinary

board found Navejar guilty. It concluded that Navejar

started the physical altercation when he “suddenly

swung” at Iyiola and that Iyiola was “hit on the nose

and upper lip” during the ensuing fight. Among other

punishments, the board revoked one year of good time

credits. Navejar appealed the ruling and submitted a

grievance accusing the guards of using excessive force.

He lost both the appeal and the grievance.

Navejar then sued Iyiola, Grant, Elberson, and other

unnamed prison guards in federal court, alleging that

4 No. 12-1182

the guards used excessive force and were deliberately

indifferent to his serious medical needs in violation of

the Eighth Amendment. See 42 U.S.C. § 1983. (He also

brought a claim, no longer pursued, that the discipline

violated his right to due process.) During discovery,

the defendants produced a few documents “as a cour-

tesy” to Navejar. But they refused Navejar’s other

requests, including his request for more documents

about or recordings of the altercation, citing security

risks and burden.

Navejar moved four times for the recruitment of

pro bono counsel. He filed two of his motions at the start

of the case, another after the guards moved to dismiss

his due-process claim, and a fourth after they moved

for summary judgment. His motions asserted why he

believed he was incapable of representing himself: he

did not finish high school, he suffered from (an unspeci-

fied) mental illness, he had difficulty with English, he

had repeatedly been moved from prison to prison and

thus had trouble securing help for his case, and he had

been denied access to the law library during prison

lockdowns. Navejar’s first two motions did not assert

that he had sought counsel on his own; the district court

never ruled on these motions. The third and fourth mo-

tions, though, explained that Navejar had contacted

attorneys to represent him. The court denied these

two motions.

But the court denied the latter two motions without

citing Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc),

and instead relied on older cases in brief minute orders.

No. 12-1182 5

It began by applying the legal standard in Gil v.

Reed, 381 F.3d 649, 656 (7th Cir. 2004), in evaluating

(1) whether the plaintiff appears competent “to try” the

case himself, and (2) whether recruiting counsel “would

provide a substantial benefit to the court or the parties,

potentially affecting the outcome.” The court concluded

that counsel was unnecessary in Navejar’s case because

he “alleged no physical or mental disability” pre-

cluding him from investigating the facts of his case and

“[n]either the legal issues raised in the complaint nor

the evidence that might support Plaintiff’s claims are so

complex or intricate that a trained attorney is necessary.”

The district court granted summary judgment for the

prison guards. The court struck Navejar’s statement of

material facts and deemed admitted the defendants’

statement, reasoning that Navejar had committed two

critical errors: (1) impermissibly attempting to create

a fact dispute by citing “self-serving evidence”—his

affidavit where he asserted that guards beat and pepper-

sprayed him after he was cuffed and subdued; and

(2) adding his own factual assertions in response to

the defendants’ statement of facts, rather than pre-

senting them in a separate statement, as required by

N.D. ILL. L. R. 56.1(b)(3)(C). With the defendant’s version

of events uncontradicted, the court concluded that no

reasonable jury could determine that the guards used

excessive force against Navejar. Alternatively, the court

reasoned, Navejar’s excessive-force claim was barred

by Heck v. Humphrey, 512 U.S. 477, 487 (1994), because

the prison disciplinary board found Navejar guilty of

assaulting Iyiola. Finally, the court concluded that

6 No. 12-1182

Navejar could not recover for deliberate indifference

against Elberson because no evidence suggested that

Navejar suffered from a serious medical condition or

that Elberson had a culpable mental state. (The district

court’s treatment of deliberate indifference was clearly

correct, so we say nothing further about it.)

Navejar makes only one argument on appeal: that

the district court abused its discretion by failing to

recruit him a lawyer. In a civil case, the court has dis-

cretion to recruit counsel to represent a litigant who is

unable to afford one. 28 U.S.C. § 1915(e)(1); Ray v. Wexford

Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).

In Pruitt we refined the standards for evaluating

whether to recruit counsel. If a plaintiff makes a rea-

sonable attempt to secure counsel, the court must

examine “whether the difficulty of the case—factually and

legally—exceeds the particular plaintiff’s capacity as a

layperson to coherently present it.” Pruitt, 503 F.3d at

655. This inquiry does not focus solely on the plain-

tiff’s ability to try his case—it also includes other

“tasks that normally attend litigation” such as “evidence

gathering” and “preparing and responding to motions.”

Id. When ruling on a motion to recruit counsel, the

court should take account of all evidence in the record

relevant to the plaintiff’s capacity to litigate. Id. We

will overturn the district court’s decision only when

the court has abused its discretion based on the

evidence in the record when it ruled on the motion. Id.

at 658-59. And even if the district court abuses its dis-

cretion, we will reverse only if the plaintiff shows

prejudice—“a reasonable likelihood that the presence

No. 12-1182 7

of counsel would have made a difference in the outcome

of the litigation.” Id. at 659 (emphasis removed).

In its orders denying Navejar’s § 1915(e)(1) motions,

the court erred in three ways. First, by relying on Gil

instead of Pruitt, the court believed that it should decide

whether Navejar was competent to try his case. See Gil,

381 F.3d at 656. But Pruitt clarified that the proper

inquiry focuses on “whether the plaintiff appears com-

petent to litigate his own claims,” 503 F.3d at 655

(emphasis in original), with tactics like discovery and

motion practice “that normally attend litigation.” Id.

Second, by stating without elaboration that Navejar’s

claims are not “so complex or intricate that a trained

attorney is necessary,” the district court resurrected

boilerplate language that we disapproved of in Pruitt

because it ignores the plaintiff’s abilities. Id. at 649, 660.

Although the court briefly referred to Navejar’s compe-

tence, stating that Navejar “alleged no physical or

mental disability,” the record contradicts its statement.

Navejar stressed his limited education, mental illness,

language difficulties, and lack of access to fellow

prisoners or other resources for assistance after his

transfer from Stateville. See also ILL. A DMIN. C ODE tit. 20,

§ 701.180(a) (restricting mail correspondence between

inmates in different prisons). Third, the court asked

whether recruiting counsel would substantially benefit

“the court or the parties, potentially affecting the out-

come.” But in Pruitt, we distinguished the district

court’s inquiry from the standard of appellate review.

See 503 F.3d at 654. Pruitt nowhere suggests that

a district court should consider whether recruiting

8 No. 12-1182

counsel would affect the outcome of a case; instead, that

inquiry is reserved for the appellate court’s review for

prejudice. See id. at 659. By applying the wrong legal

standard and failing to consider the record, the district

court abused its discretion. See Bracey v. Grondin, No. 12-

1644, 2013 WL 1007709, at *2 (7th Cir. Mar. 15, 2013);

Santiago v. Walls, 599 F.3d 749, 765 (7th Cir. 2010);

Pruitt, 503 F.3d at 660.

The district court, unfortunately, is not alone in

relying on pre-Pruitt case law. Many other district judges

in the Northern District of Illinois have recently and

regularly issued substantially similar rulings. We have

found more than 100 rulings from the Northern District

of Illinois since Pruitt using the phrase “so complex or

intricate that a trained attorney is necessary.” See, e.g.,

Velasquez v. Kane Cnty. Jail Adult Judicial Center, No. 13

C 0644, 2013 WL 523827, at *3 (N.D. Ill. Feb. 11, 2013);

Allen v. Wexford Health Sources, No. 12 C 50380, 2012 WL

6587792, at *4 (N.D. Ill. Dec. 17, 2012); Birks v. Dart,

No. 12 C 7701, 2012 WL 5363439, at *3 (N.D. Ill. Oct. 30,

2012). Some of these orders (like the one in this case) do not

cite Pruitt or subsequent case law. See, e.g., Hutcherson v.

Cook Cnty., No. 10 C 6215, 2010 WL 3951897, at *2 (N.D. Ill.

Oct. 6, 2010); Banks v. Mills, No. 10 C 1486, 2010 WL

3307356, at *1 (N.D. Ill. Aug. 19, 2010); Logan v. Godinez, No.

10 C 4418, 2010 WL 2836957, at *3 (N.D. Ill. July 19, 2010).

And these are only the rulings searchable through pub-

lic databases; doubtless district judges have also used

this obsolete language in orders not captured in these

databases. We therefore take this opportunity to remind

district courts about the individualized analysis that

No. 12-1182 9

Pruitt requires, see 503 F.3d at 655-56, and caution

against using boilerplate language that we criticized

en banc.

Even though the district court applied the wrong stan-

dard, we will not reverse without a showing of preju-

dice—a “reasonable likelihood that the presence of

counsel would have made a difference in the outcome

of the litigation.” Id. at 659 (emphasis removed).

Prejudice (unlike abuse of discretion) may be estab-

lished by an after-the-fact review “of a litigant’s poor

performance before or during trial.” Id. at 659-60.

In this case, the absence of counsel likely prejudiced

Navejar because the district court’s ruling on summary

judgment reveals two substantive errors. First, the court

adopted the erroneous legal argument raised by the

defendants in moving for summary judgment that

Navejar could not rely on “self-serving evidence” to

create a material factual dispute. This is wrong. “[W]e

long ago buried—or at least tried to bury—the miscon-

ception that uncorroborated testimony from the non-

movant cannot prevent summary judgment because it

is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d

688, 691 (7th Cir. 2010); see also Darchak v. City of Chicago

Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009); Buie v.

Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir. 2004);

Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir. 2003). Here,

Navejar attempted to present his side of the story at

summary judgment through his affidavits and specific

references to his deposition testimony. He contended

that after he was subdued and handcuffed, Iyiola

10 No. 12-1182

kicked him in the face, a prison guard stomped his

head, guards dragged him across the floor, Grant and

Iyiola pepper-sprayed him, and then left him alone for

30 minutes screaming in pain. With Navejar lacking

counsel to reply to the defendants’ erroneous con-

tention that the district court may safely disregard

his “self-serving” evidence, the district court accepted

that contention and thereby prejudiced Navejar.

Second, the defendants argued that Navejar’s excessive-

force claim was Heck-barred because the prison board

found Navejar guilty of disobeying orders and as-

saulting Iyiola. See Edwards v. Balisok, 520 U.S. 641, 648

(1997); Heck v. Humphrey, 512 U.S. 477, 487 (1994). The

district court again agreed with the guards, ruling

that Heck bars the excessive-force claim. We disagree,

observing as we have before that pro se prisoners are

often tripped up by Heck’s complexities. See Evans v.

Poskon, 603 F.3d 362, 364 (7th Cir. 2010); Gilbert v. Cook,

512 F.3d 899, 901 (7th Cir. 2008). Navejar cannot deny

that he disobeyed orders or assaulted Iyiola because

those denials would “necessarily imply” the invalidity

of his discipline. See Moore v. Mahone, 652 F.3d 722, 724-

25 (7th Cir. 2011); Evans, 603 F.3d at 364; Gilbert, 512

F.3d at 900. But Navejar’s assault on Iyiola is not neces-

sarily inconsistent with his sworn contention that the

guards answered his assault with excessive force

after they subdued him. See Gilbert, 512 F.3d at 901-

02 (reversing Heck-based judgment as a matter of

law against inmate, remanding for trial on inmate’s

excessive-force claim despite prison board finding that

inmate punched guard, and ordering district court to

No. 12-1182 11

consider recruiting counsel); Skrtich v. Thornton, 280

F.3d 1295, 1301-02, 1304-05 (11th Cir. 2002). “Otherwise

guards (and for that matter any public employee)

could maul anyone who strikes them, without risk of civil

liability as long as the private party is punished by

criminal prosecution or prison discipline for the initial

wrong.” Gilbert, 512 F.3d at 901. Without a lawyer for

Navejar to advocate the limits of Heck, the court

mistakenly barred Navejar from arguing that, after he

assaulted Iyiola, the guards responded with dispropor-

tionate force. See Gilbert, 512 F.3d at 901-02.

Beyond these two errors, Navejar was also prej-

udiced by proceeding without a lawyer after he was

transferred from Stateville. Like the plaintiff who was

transferred to a new prison in Santiago, once Navejar

was transferred, he faced “significant problems” in liti-

gating pro se because, once at another institution, he

was not readily able to “identify key witnesses, depose

the defendants and gather pertinent evidence,” or

proceed against John Doe defendants because he

couldn’t ascertain their identities. Santiago, 599 F.3d

at 763, 766; see also Pruitt, 503 F.3d at 660. Navejar em-

phasizes that he was restricted from corresponding

with individuals at Stateville, including those who

might have been witnesses to the brawl. See ILL. A DMIN.

C ODE tit. 20, § 701.180(a). Aware of these limits, the

named defendants avoided producing virtually every-

thing he requested in discovery. Counsel would

likely not have faced the same obstacles. See Santiago,

599 F.3d at 765.

12 No. 12-1182

We conclude that there is a reasonable likelihood

that Navejar would have overcome summary judgment

with the assistance of counsel. Accordingly, we R EVERSE

the grant of summary judgment on the excessive-force

claim and R EMAND for further proceedings consistent

with this order, including the recruitment of counsel

for Navejar. See Pruitt, 503 F.3d at 661. In all other re-

spects the judgment is A FFIRMED.

5-29-13