Pruitt v. Mote

ROVNER, Circuit Judge,

with whom RIPPLE, WOOD, and WILLIAMS, Circuit Judges, join,

concurring.

I join the court in reaffirming that a district court must consider an indigent party’s ability to litigate the case in ruling upon a request for counsel under section 1915(e)(1). Judge Sykes has carefully explained why, in light of that obligation, the district court abused its discretion in denying Pruitt’s multiple requests for an attorney and why Pruitt was prejudiced by the refusal to recruit counsel to represent him. *662 I share her views on both of these points. I part ways with the majority opinion in only one respect.

The majority declares that the district court has no ongoing duty to evaluate an indigent party’s ability to handle the ease alone and to sua sponte reconsider its earlier denial of a request for counsel when it becomes clear that a lawyer is needed. Ante at 656-658. Although this was a subject raised by members of the court at oral argument, it is not clear to me why the majority resolves it in today’s opinion. The court ultimately concludes that the district court, in denying Pruitt’s multiple requests for counsel, abused its discretion by failing ever to consider Pruitt’s competence to litigate the case. Ante at 660. That holding leaves us with no need to decide whether the lower court had a continuing duty to monitor Pruitt’s competence, and for that reason I would leave the question open. Given that the majority has gone out of its way to foreclose such a duty, however, I write separately to explain why, in my view, the court is wrong to do so.

Pruitt’s case, because it survived initial screening and culminated in a trial, demonstrates the merit of requiring the district court to continually monitor an indigent party’s competence to litigate the case pro se. To my mind, the notion that Pruitt was able to prosecute his case without the aid of counsel was dubious from the start: Pruitt’s prolix complaint was, in the district court’s words, “jumbled” and “very difficult to decipher”; Pruitt relied on a prison law clerk to prepare his (partially) successful memorandum in opposition to the defendants’ motion to dismiss; and prison testing revealed that Pruitt’s basic skills were equivalent to those of a sixth-grader. But if there ever was any plausibility to the notion that Pruitt could litigate this case on his own, it vanished once the trial got underway. When Pruitt told the judge in the first moments of the trial, “I don’t know where to begin,” he was not kidding; everything occurring thereafter was confirmation of that simple truth, from his incoherent opening statement to his near-total reliance upon the judge to elicit relevant testimony from his witnesses, including himself. Pruitt was essentially a bystander to his own lawsuit, and this was no more clear in the last moments of the trial than it was in the first. There was no point in allowing the trial to go forward under these circumstances. What the court should have done once Pruitt’s incompetence was laid bare was call a halt to the proceedings and recruit counsel to represent him, even if that meant declaring a mistrial.

My colleagues in the majority do not dispute the logic of the obligation that I advocate; instead, they reason that because neither due process nor one’s right of access to the courts entitles a civil litigant to counsel, a court can have no ongoing duty to assess an indigent’s ability to handle the case without representation. Ante at 656-658. I abstain from the constitutional discussion. Whether there is ever a constitutional right to counsel in a civil case is not a question that we asked the parties to brief, and the existence (or not) of a duty to monitor the indigent party’s competence to litigate the case pro se does not depend on a constitutional entitlement to counsel. See New York City Transit v. Beazer, 440 U.S. 568, 582 , 99 S.Ct. 1355, 1364 , 59 L.Ed.2d 587 (1979) (court should refrain from reaching constitutional questions unless unavoidable); National Paint & Coatings Ass’n v. City of Chicago, 45 F.3d 1124, 1126 (7th Cir.1995) (“[I]f a sufficient non-constitutional ground of decision is available, a court must begin and end there. Constitutional adjudication is a last resort, and courts should do what they can to decide on other grounds.”) (citations omitted) (emphasis in *663 original). Our supervisory authority as a court of appeals permits us to require the lower courts to observe “ ‘procedures deemed desirable from the viewpoint of sound judicial practice although in nowise commanded by statute or by the Constitution.’ ” Thomas v. Arn, 474 U.S. 140, 146-47 , 106 S.Ct. 466, 470 , 88 L.Ed.2d 435 (1985)(quoting Cupp v. Naughten, 414 U.S. 141, 146 , 94 S.Ct. 396, 400 , 38 L.Ed.2d 368 (1973)); e.g., Lemons v. Skidmore, 985 F.2d 354, 356 (7th Cir.1993); see also United States v. Wecht, 484 F.3d 194, 204-05 (3d Cir.2007); United States v. Nelson, 277 F.3d 164, 208 (2d Cir.2002); United States v. Waters, 158 F.3d 933, 944-45 (6th Cir.1998); Rand v. Rowland, 154 F.3d 952, 959 (9th Cir.1998) (en banc). Given the great number of suits filed pro se by prisoners and other indigent plaintiffs, the regularity with which we see appeals that challenge a district court’s refusal to recruit counsel pursuant to section 1915(e)(1), and the important role that an attorney plays in ensuring that a party’s case is fully developed and presented, the district court’s obligations with respect to the recruitment of counsel are appropriate subjects for the exercise of our supervisory powers.

Requests for counsel typically are made by plaintiffs (as opposed to defendants) at the outset of litigation, and at that stage district judges frequently, and with good reason, will deny those requests. The motions are often generic and identify no circumstance other than the plaintiffs lack of legal knowledge and ability — a disadvantage nearly all unrepresented litigants share — in support of the request. ■ Many pro se suits turn out to be frivolous, and a judge justifiably will be reluctant to solicit pro bono assistance from the bar until she is sure that the case has at least some potential merit. In that regard, pre-trial motions under Federal Rules of Civil Procedure 12 and 56 serve an important screening function, disposing of the cases that have no legal or factual basis and leaving for trial a much smaller pool of cases in which the services of counsel arguably can be of the greatest benefit. 1 At the same time, a pro se plaintiff enjoys the benefit of certain presumptions early on in the case — including the assumed truth of the complaint’s factual allegations at the pleading stage, and the bar' on credibility determinations and resolution of factual disputes at the summary judgment stage— that give him a leg up. A district judge in turn has a wealth of knowledge and experience that enables her to pierce inartfully drafted pleadings and to identify claims that are viable. A judge may justifiably conclude that a pro se plaintiff who can articulate the essential nature of his injury and present his version of the facts does not truly need the services of an attorney in the early stages of the case.

But once a viable claim has been identified and the litigation moves forward, the equities of the indigent plaintiffs request for counsel may well change. Those changes may become apparent on two different fronts: the demands that a particular case will place on the unrepresented litigant, and the litigant’s demonstrated ability — or inability — to meet those demands.

First, as the case moves beyond the pleading stage, into discovery, and closer to trial, the plaintiff will face an increasingly complex set of demands. The presumptions that aid a plaintiff in the early stages *664 of the case begin to drop away, and the plaintiff is obliged to gather and present evidence in order to sustain his burden of proof. In cases where the plaintiff himself was a witness to all of the relevant events, his ability to prepare an affidavit setting forth his version of events may enable him to respond effectively to a defendant’s motion for summary judgment and, at trial, his testimony likewise may suffice to make the essence of his case. But where the plaintiffs claim necessitates the testimony of other witnesses (including in some cases expert testimony) or other evidence that is not in his possession, the assistance of an advocate may, as a practical matter, become necessary. An incarcerated plaintiff, for example, will have unique difficulties conducting even rudimentary discovery. And when it comes to nuanced legal issues like qualified immunity, deliberate indifference, and so forth, even a relatively sophisticated litigant may find it difficult to identify and present the right type of evidence. See Merritt v. Faulkner, 697 F.2d 761, 764 (7th Cir.1983) (“Quite often the factual and legal issues in a civil case are more complex than in a criminal ease.”). If the plaintiff manages to survive a defendant’s pre-trial motions — as Pruitt was able to do with the assistance of a prison law clerk— trial of the case then presents him with a new and even more daunting set of challenges, particularly where the case is tried to a jury. There are, of course, some things that a district judge can do in aid of the pro se litigant to help compensate for his lack of legal expertise. Judge Baker, for example, commendably went out of his way to supplement Pruitt’s examination of witnesses with his own questions, to signal Pruitt when he ought to object, and so forth. But a judge is constrained by a duty of impartiality, and whatever he might do to help an unrepresented litigant, he cannot be that individual’s advocate. See Pliler v. Ford, 542 U.S. 225, 231 , 124 S.Ct. 2441, 2446 , 159 L.Ed.2d 338 (2004); Donald v. Cook County Sheriff’s Dep’t, 95 F.3d 548, 555 (7th Cir.1996).

Second, as the litigation progresses, the court will have multiple opportunities to see how competent the litigant is to present his own case. The pleadings and memoranda that the litigant files, along with his interactions with the court and opposing counsel at pretrial hearings and conferences, will demonstrate the litigant’s intelligence, verbal skills, ability to follow the court’s orders, and his success in marshaling the facts and the law in support of his own case. Indeed, in many if not most cases, the court’s first-hand observations of the litigant will prove more informative vis-á-vis his need for the assistance of counsel than the litigant’s own section 1915 motion. There will be those plaintiffs whose knowledge and education enables them to comprehend the governing legal principles, produce relevant evidence, and present a cogent case to the court. But there will be others who reveal themselves to be unequal to the task for reasons that have nothing to do with the merits of their cases.

Nothing prevents the pro se litigant himself from asking the judge to reconsider the denial of his request for counsel, of course. But once the pro se litigant has been told that his situation does not warrant the recruitment of counsel (as Pruitt was told more than once), he understandably might think that the question has been decided once and for all and that a renewed request would be both pointless and likely to annoy the judge. Moreover, as between the litigant and the judge, it is the judge who is more likely to recognize that the litigant is in need of counsel. The litigant may realize that he is floundering, but only the court, with its legal knowledge, will realize just how much. Indeed, a pro se litigant may think that he has presented a compelling case, when it will be readily apparent to the judge that the *665 litigant either does not comprehend the applicable legal standard or has no idea what type of evidence is relevant to that standard. The court is not powerless to act in such a situation even in the absence of a renewed request for counsel. There is an important distinction between being impartial and being passive. See Sims v. ANR Freight Sys., Inc., 77 F.3d 846, 849 (5th Cir.1996); Pariser v. City of New York, 146 F.2d 431, 433 (2d Cir.1945) (A. Hand, J.); Ellen E. Sward, Values, Ideology, and the Evolution of the Adversary System, 64 Ind. L.J. 301 , 321 n. 96 (1989). When confronted with evidence that his previous ruling on a question implicating the basic fairness of the proceedings was wrong, the judge ought to reconsider the matter sua sponte.

No purpose is served in allowing a case to proceed when the pro se litigant clearly cannot advance his own cause. Obviously it does no justice to the litigant. It is no true favor to his opponent either, given the inherent difficulties of litigating a case against an unrepresented party who has little or no understanding of the substantive law, let alone the rules of civil procedure and evidence. Neither does it well serve the civil justice system. No case is an island unto itself; every one has potential consequences that extend beyond the individual parties. When a plaintiff prevails in an emplojunent discrimination suit, for example, her victory can bring about changes in many employers’ workplace policies; when she does not, her loss may be construed as a vindication of employers’ current practices and discourage others from suing. Cf. City of Riverside v. Rivera, 477 U.S. 561, 574 , 106 S.Ct. 2686, 2694 , 91 L.Ed.2d 466 (1986) (“we reject the notion that a civil rights action for damages constitutes nothing more than a private tort suit benefitting only the individual plaintiffs whose rights were violated”). At a minimum, whatever the circumstances of an individual case might be, that suit will often require judicial rulings that establish precedents for the cases that follow. We rely on-the adversarial process to aid courts in producing evidence and ascertaining the relevant facts, to articulate the arguments for and against particular holdings, and to anticipate the ramifications of the rules they adopt. See In re Continental Cas. Co., 29 F.3d 292, 295 (7th Cir.1994); Merritt v. Faulkner, supra, 697 F.2d at 764 . The process is far from perfect, but to function as it is intended it must in fact be an adversarial process; it is anything but that when one side cannot competently make his own case. And although it is tempting to discount the jurisprudential significance of pro se litigation, experience teaches that such cases sometimes present questions with far-reaching consequences. See, e.g., United States v. Georgia, 546 U.S. 151 , 126 S.Ct. 877 , 163 L.Ed.2d 650 (2006) (pro se suit by paraplegic state prisoner challenging conditions of confinement) (holding Title II of Americans with Disabilities Act abrogates state sovereign immunity insofar as it authorizes damages suit against state officials for conduct that violates Fourteenth Amendment); Kolender v. Lawson, 461 U.S. 352 , 103 S.Ct. 1855 , 75 L.Ed.2d 903 (1983) (pro se declaratory judgment action challenging constitutionality of state vagrancy statute under which petitioner had been arrested and convicted) (declaring unconstitutionally vague statute requiring those who loiter on or wander public streets to provide “credible and reliable” identification and to account for their presence when asked to do so by police).

For these reasons, I believe that a district court has an ongoing responsibility to monitor a pro se litigant’s conduct of the litigation and to sua sponte reconsider the litigant’s request for counsel when the court realizes that the services of a lawyer are essential to a full and fair hearing of the litigant’s claim. In satisfaction of that obligation, a conscientious judge will be *666 proactive in managing the case, holding regular status hearings and taking such other steps as are necessary to satisfy herself that the unrepresented party both understands his obligations as a litigant and is capable of meeting them. Cf. Schilling v. Walworth County Park & Planning Com’n, 805 F.2d 272, 277 (7th Cir.1986) (district court “should at least warn a pro se litigant of the possible consequences of any neglect” in litigating case); Lewis v. Faulkner, 689 F.2d 100, 102-03 (7th Cir.1982) (pro se prisoner-plaintiff must be warned in plain English of consequences of failing to respond properly to defendant’s motion for summary judgment).

This is not to say that a court’s decision not to recruit counsel will be judged in hindsight based on information unknown to the court at the time of its decision. Ante at 659; Farmer v. Haas, 990 F.2d 319, 322 (7th Cir.1993). A district judge is not expected to be omniscient or clairvoyant. When a judge reasonably concludes based on the evidence available to her that an indigent party is competent to litigate a case pro se, her decision to deny a request for counsel will be sustained on appeal as a permissible exercise of her discretion. Thus, if a pro se litigant has proven competent in questioning witnesses during discovery and has been articulate in arguing his case to the court at pre-trial hearings, a judge might legitimately conclude that the litigant does not require the aid of counsel at trial. The fact that the litigant subsequently loses the trial, perhaps in part due to his own mistakes, will not call into question the propriety of the court’s decision to deny him counsel. But a judge may not bury her head in the sand and ignore evidence that the pro se litigant lacks the ability to organize and present his case. She may not summarily conclude that the litigant does not need counsel when she lacks a basis on which to make an informed assessment of that need. Nor, in my view, may she conclude (however justifiably) in an early stage of the case that the litigant can handle things competently without representation and simply assume that her conclusion will hold true for the remainder of the case. As the litigation proceeds from one stage to another, the court ought to re-consider, in light of the indigent litigant’s lengthening track record, whether the litigant is up to the demands of the next stage of the case. If the court has reason to believe he is not, it is time to reconsider the denial of the litigant’s section 1915 motion. It is the judge who allows the case to move forward without making such an inquiry, or who ignores the signs of a litigant’s incompetence, whose exercise of discretion (or failure to exercise such discretion) is at peril of being reversed on appeal.

All of this is common sense, of course, and many judges take such steps already. But given the relentless pressure of a busy docket, the number of frivolous suits that are filed by pro se plaintiffs, and a natural reluctance to dip into the pro bono well too often for assistance, a court may on occasion be too quick to dismiss a litigant’s request for counsel. Requiring, rather than simply encouraging, courts to continue evaluating the unrepresented litigant’s need for counsel as the case progresses is a way to avoid the kind of wholesale failure of the adversarial process that occurred in this ease. That obligation I submit, is implicit in “ ‘the well-established duty of the trial court to ensure that the claims of a pro se litigant are given a fair and meaningful consideration.’ ” Donald v. Cook County Sheriff’s Dep’t, supra, 95 F.3d at 555 (quoting Palmer v. City of Decatur, 814 F.2d 426, 428-29 (7th Cir.1987) (collecting cases)).

. This is not to suggest that a district court may automatically deny an indigent plaintiff’s request for counsel simply because it has not yet survived a dispositive pre-trial motion. See Hendricks v. Coughlin, 114 F.3d 390, 393 (2d Cir.1997). It is simply to say that many pro se suits have defects that are both readily apparent and beyond the ability of an attorney to remedy.