Santiago v. Walls

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