Recruitment of counsel not required

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District courts have no obligation to help an indigent pro se plaintiff obtain counsel, a divided panel of the Seventh Circuit held on Dec. 28.

Benjamin Pruitt, a prisoner in Illinois filed a lawsuit against various prison guards, alleging that Michael Mesch sexually assaulted him, and the others ignored his complaints.

Pruitt sought to have counsel recruited to represent him under 18 U.S.C. 1915(e)(1), but the district court did not do so. After a one-day trial, the jury found in favor of the defendants.

Pruitt appealed, but the Seventh Circuit affirmed in a decision written by Judge Frank H. Easterbrook, and joined by Judge John L. Coffey. Judge Richard A. Posner dissented.

The court held that the district court did not abuse its discretion in not recruiting counsel. The court found that the case was a “relatively simple trial, a brief swearing contest,” in which the only issue was who was telling the truth.

The court noted that more complex concepts, such as deliberate indifference, were relevant only to the other defendants, not Mesch, and would only come into play if the jury believed that Mesch had sexually assaulted Pruitt. Because the jury believed Mesch, rather than Pruitt, there were no complicated legal concepts that would require counsel to understand.

The court acknowledged that the case had more merit than many prisoner lawsuits, in that it survived summary judgment, but the court concluded that this is insufficient to require the recruitment of counsel.

The court reasoned “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.’”

The court then reviewed a variety of possible rules for the recruitment of counsel.

The court began with “never recruit counsel,” and relying exclusively on the market.

The court noted, “Contingent-fee lawyers take many weak cases; if a given plaintiff cannot persuade any lawyer to assist, his case must be weaker than the most feeble of these.”

The court also observed that, if a judge directs legal assistance to one plaintiff, he necessarily leaves another one unrepresented: “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.”

As for the other end of the spectrum — “always recruit in non-frivolous cases” — the court observed, “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.”

In the middle, the court considered “always recruit counsel if the evidence is strong enough to call for a trial and the damages, if the plaintiff prevails, would be substantial.”

Such an approach would screen out cases involving only nominal damages, but the court found such a rule would be unnecessary, because, if a case is strong, and there are substantial damages at stake, a plaintiff should be able to attract counsel with assistance.

However, the court found all the various approaches inconsistent with Farmer v. Haas, 990 F.2d 319 (7th Cir. 1993).

In both Farmer and the case at bar, the trial amounted to a swearing contest about the facts, involving no complex legal questions, making it reasonable for the court to withhold assistance in recruiting counsel.
The court wrote, “If the decision not to recruit counsel for Farmer was within the district j
udge’s discretion (as we held), so too was the decision not to recruit counsel for Pruitt.”

Looking only to pre-trial events, rather than how Pruitt actually conducted the trial, the court concluded the district court’s actions were reasonable. The court noted that the district court had received Pruitt’s written submissions and observed him during two videoconferences.

The court concluded, “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 Farmer 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.”

Accordingly, the court affirmed.

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Judge Posner dissented, stating that, although, if he were to consider the issue as an original matter, he would adopt the “never recruit rule,” sec. 1915(e)(1) provides otherwise.

Because the case survived summary judgment, and Pruitt had only a sixth grade education, Posner concluded that counsel should have been recruited by the court.

Reviewing the trial transcript, Posner found that Pruitt could not give a coherent opening or closing statement, conducted only perfunctory cross-examination, and only objected to inadmissible evidence when prompted to by the judge.

Posner distinguished Farmer, because the plaintiff there actually was competent to represent herself, as indicated by having successfully appealed the case to the Seventh Circuit before trial began.

In the case at bar, in contrast, Posner opined, “To insist that someone with a sixth-grade education, and nothing to suggest forensic competence beyond what so modest an educational attainment implies, conduct a jury trial without a lawyer makes a travesty of the Seventh Amendment.”

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David Ziemer can be reached by email.