Benjamin PRUITT, Plaintiff-Appellant, v. Stephen D. MOTE, et al., Defendants-Appellees, 472 F.3d 484

EASTERBROOK, Chief Judge. A jury found for all defendants in this suit under 42 U.S.C. § 1983. Benjamin Pruitt, the plaintiff, does not contest the accuracy of the instructions or any of the district judge’s rulings admitting or excluding evidence. What he does contend is that the judge should have recruited a lawyer for him. See 28 U.S.C. § 1915(e)(1). Judges do not “appoint” counsel for indigent parties in civil litigation. See Mallard v. United States District Court, 490 U.S. 296, 109 S.Ct. 1814, 104 L.Ed.2d 318 (1989).

Still, many members of the bar are willing to take cases that federal judges identify as worthy of legal assistance pro bono publico. Because § 1915(e)(1) does not give anyone an entitlement to such representation, however, or even to the benefit of having a judge play recruiting officer, we have held that a district judge’s decision to allow private lawyers to decide whether to take any given case is subject to deferential review. See, e.g., Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir.2006); Jackson v. County of McLean, 953 F.2d 1070, 1071-72 (7th Cir.1992).

Pruitt insists that the district judge abused his discretion in declining to recruit a lawyer for him. Pruitt contends that, while he was confined at Pontiac Correctional Center in Illinois, Michael Mesch (one of the guards) took him into a bathroom and began to fondle his penis. When one of Mesch’s superiors arrived unexpectedly, Mesch pretended to be conducting an authorized search; Pruitt was able to escape further sexual contact. Pruitt filed written complaints, which (he maintains) the other defendants ignored; one of them supposedly told him to stop writing, lest he come to additional harm.

Pruitt does not contend, however, that he was again sexually assaulted or that the defendants have retaliated on account of his complaints. At the one-day trial, Pruitt gave the only testimony supporting his contentions. He called some other inmates as witnesses, but none corroborated his version of events. Mesch testified that he did not assault Pruitt, whose effort to undermine Mesch’s story on cross-examination was ineffectual. The other defendants also testified. Two (Stephen D. Mote and Patricia Boedecker) insisted that they had not received either oral or written complaints from Pruitt.

A third (Adella Jordan-Luster) testified that she had received a written complaint, which she forwarded to the Internal Affairs department as regulations require. The final defendant (Wesley G. Wiles) testified that he received this complaint, questioned both Pruitt and Mesch about it, and closed the file after determining that Pruitt’s allegation was false. None of these defendants wavered during the brief cross-examination that Pruitt conducted. The jury did not take long to return a verdict in defendants’ favor.

If the jurors believed Mesch’s testimony, none of the legal apparatus — such as the definition of “deliberate indifference” needed to establish the mental component of a claim under the eighth amendment against guards who fail to intervene to prevent or stop a sexual assault, see Farmer v. Brennan, 511 U.S. 825, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) — made the slightest difference. Pruitt maintains that, as an uneducated prisoner, he could not grasp legal concepts such as “deliberate indifference” (many lawyers don’t get that one either) and had no idea how to conduct an effective cross-examination.

What’s more, he could not present his own testimony effectively in narrative form (the district judge helped out by asking questions, and Pruitt worries that the jurors might have inferred that the judge was hostile, as he did not question the defendants). Finally, Pruitt tells us, he was unprepared for trial because he did not know what to ask for in discovery. All of this is true of every suit in which a non-lawyer presents a case to a jury. (It is true of many lawyers as well; effective trial advocacy is a scarce skill.) This was a relatively simple trial, a brief swearing contest.

To decide whether Mesch is culpable, the jury had to determine who was telling the truth. (Once it found that Mesch is not culpable, the other defendants prevailed automatically.

The complications posed by concepts such as “deliberate indifference” mattered only for the other defendants, and then only if Mesch sexually assaulted Pruitt.) If the difficulty that a pro se litigant encounters in conducting such a trial were enough to require the district judge to recruit counsel, then we would have a per se rule rather than a discretionary choice: the rule would be “a plaintiff is entitled to counsel at every jury trial.” (Alternatively, the rule could be that, if the case makes it past a motion to dismiss, then the judge must find counsel for discovery and trial.) It would be a per se rule because the judge would need to apply it before trial, rather than in the light of actual performance at trial.

Although a legislature could adopt such a rule, it cannot be located in § 1915(e)(1) or this circuit’s cases. Instead we allow the district judge to make a case-by-case assessment of the trial’s difficulty and the plaintiffs ability to cope. Whatever an appellate court knows about the difficulty of conducting trials, a district judge knows more — for the district judge observes how the plaintiff handles himself during the runup to trial and whether defendants’ stories are the sort of tales that only a professional advocate could pierce. Transcripts may convey the flavor while falling short of the full story.

That’s why appellate courts do not substitute their judgment for district judges on matters of this kind. If we are to replace a discretionary approach with a per se rule, we must consider the panoply of available rules. These run from “never recruit counsel” on one end to “always recruit counsel for non-frivolous claims” on the other. The “never recruit” approach relies on competition in the marketplace for legal services. See McKeever v. Israel, 689 F.2d 1315, 1323 (7th Cir.1982) (Posner, J., dissenting).

Contingent-fee lawyers take many weak eases; if a given plaintiff cannot persuade any lawyer to assist, his case must be weaker than the most feeble of these. When a judge nonetheless directs legal assistance to that case, he displaces the collective judgment of the bar and likely leaves some other client unrepresented in the process- — for the lawyer recruited to assist Client X won’t have time to work for Client Y. That X is a prisoner, and Y a free person seeking help for injuries from an auto accident, is a weak reason to divert legal services in X’s direction.

An “always recruit in non-frivolous cases” approach, at the other end of the spectrum, would rest on the fact that prisoners have a more difficult time locating private counsel than do free persons and often are unable to communicate through the mail the salient particulars of their situation. Pruitt sent letters to three lawyers; none was willing to assist him, perhaps because Pruitt’s letters were so vague that counsel could not tell whether Pruitt had even a glimmer of a claim.

A judge may learn more of the particulars in the course of the litigation, and if the claim passes initial screening (that is, if it is not frivolous) it could be inferred that this is the sort of claim that would attract counsel in the private market if the plaintiff were not a prisoner. Since prisoners are bad lawyers, the quality of justice could be improved by automatic appointment at this stage. There are many intermediate approaches.

One possibility would be the rule “always recruit counsel if the evidence is strong enough to call for a trial and the damages, if the plaintiff prevails, would be substantial.” That would screen out the many cases in which, even if the prisoner wins, the award will be $1 in nominal damages, and it would approximate the sort of filter that lawyers apply when deciding which cases to take voluntarily. See Margo Schlanger, Inmate Litigation, 116 Harv. L.Rev. 1555, 1602-03 (2003) (substantial damages are rare, and the median award when prisoners prevail is approximately $1,000).

Yet when the strong-claim-plus-substantial-damages condition is fulfilled, a plaintiff should be able to attract counsel without the need for a judge’s aid: it should be enough to send out copies of the order denying

summary judgment. None of these approaches entails the exercise of judicial discretion — yet it is the discretionary middle ground that our eases have followed. What may be said for this middle ground is that even prisoners sometimes can make adequate presentations, especially in simple cases, and that district judges (who see not only the prisoners and the evidence but also the quality of other suits that do attract assistance in the private market) are best situated to put all of the considerations in context. That has been this circuit’s understanding.

We would have to overrule many decisions to adopt the per se rule that counsel must always be recruited when a prisoner’s suit reaches discovery or trial. One of the cases that would have to be overruled is Farmer v. Haas, 990 F.2d 319 (7th Cir.1993), which holds that events at trial cannot be used to second-guess a district judge’s reasonable pre-trial decision — as it is before trial that the judge must make the decision. The judge must predict how well the plaintiff will handle himself, how the testimony and cross-examination may develop, and so on.

Farmer, like Pruitt, was a non-lawyer prisoner; the trial promised to be a swearing contest, which (according to Farmer) made it sensible for the district judge to withhold assistance in recruiting counsel. 990 F.2d at 322. As we observed in Farmer, when predicting how well a prisoner is apt to do at trial the district judge has a great advantage over the appellate court, for the district judge prepares for trial (working the case through the final pretrial order) in a way that an appellate court does not.

If the decision not to recruit counsel for Farmer was within the district judge’s discretion (as we held), so too was the decision not to recruit counsel for Pruitt.

Pruitt relies mainly on what happened at trial, and appellate judges are comfortable dealing with trial transcripts; yet under this circuit’s approach, which Farmer exemplifies, events at the trial cannot properly be used to make a decision by hindsight. “If the judgment was sensible when made, the fact that after trial it is apparent that the plaintiff was not competent to try the case after all will not establish error.” 990 F.2d at 322, citing (among other decisions) McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir.1985), and Eads v. Secretary of HHS, 983 F.2d 815, 817 (7th Cir.1993).

Before trial — the only time that mattered' — -the district judge not only received Pruitt’s written submissions but also had the benefit of seeing him during two conferences conducted by video link to the prison. Our dissenting colleague observes that “the record doesn’t indicate how long either conference lasted” (slip op. 10-11), but that’s not material. These conferences gave the district court a basis for assessing whether Pruitt could handle his own case; we do not have videotapes of these conferences and therefore have no basis at all for disagreeing with the district court’s pretrial assessment.

All we have are the trial transcript — which Fa'rmer holds to be irrelevant — and the fact that Pruitt is a prisoner without legal training, which would be controlling only if we were to establish a per se rule that district judges must recruit counsel to assist prisoners in jury trials. (The dissent’s proposed exception for disbarred lawyers litigating from prison would not make the rule less a per se exercise or align itself with our cases; Farmer was not a disbarred lawyer.) It is not as if the Supreme Court had established that pro se litigants never can get fair trials. Until Gideon v.

Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), many criminal trials were conducted without counsel for the defense. When (in Gideon) the Court overruled Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942), which held that judges have discretion to distinguish between cases in which litigants really need counsel and those in which they don’t, it was not because the Court doubted the trial judges’ ability to choose. It was because, Gideon held, the sixth amendment creates a per se entitlement to counsel.

Since Gideon, the Court has held that judges retain discretion to choose whether to secure counsel for the accused in situations to which the sixth amendment does not apply, such as

summary courts martial, see Middendorf v. Henry, 425 U.S. 25, 96 S.Ct. 1281, 47 L.Ed.2d 556 (1976), criminal trials that do not lead to imprisonment, see Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), and child-custody disputes, see Lassiter v. Department of Social Services, 452 U.S. 18, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981).

What the Court held in these decisions is not simply that the sixth amendment does not guarantee appointed counsel in such situations, but also that unrepresented litigants are sufficiently able to handle their own presentations that a trial is compatible with the due process clause. The rejection of a per se rule “if trial, then counsel” in Middendorf and Ar-gersinger and Lassiter means that it would be imprudent for this circuit to create such a rule under § 1915(e)(1), which does not prescribe how district judges exercise their discretion.

To say that a district judge has discretion is to say that a plausible decision either %vay will be affirmed. The district judge did not abuse his discretion in thinking that a swearing contest was apt to be within Pruitt’s abilities, though a decision the other way likewise would be sustained. It is therefore unnecessary to consider when, if ever, a district judge must recruit counsel in a case that is surely too complex for a given pro se litigant, but also too weak to attract representation on contingent fee from even a well-informed bar. Affirmed.