Randy McCaa v. Todd Hamilton ( 2020 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 19-1603
RANDY MCCAA,
Plaintiff-Appellant,
v.
TODD HAMILTON, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Eastern District of Wisconsin.
No. 2:16-cv-00175-JPS — J.P. Stadtmueller, Judge.
____________________
SUBMITTED APRIL 10, 2020* — DECIDED MAY 20, 2020
____________________
Before KANNE, ROVNER, and HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Plaintiff Randy McCaa is a Wis-
consin prisoner who alleges that prison officials violated his
* We have agreed to decide the case without oral argument because
the briefs and record adequately present the facts and legal arguments,
and oral argument would not significantly aid the court. Fed. R. App. P.
34(a)(2)(C).
2 No. 19-1603
Eighth Amendment rights by responding with deliberate in-
difference to his threats to commit suicide or to harm himself
in other ways. The district court granted summary judgment
for defendants over McCaa’s pro se efforts to oppose the mo-
tion. In McCaa v. Hamilton, 893 F.3d 1027, 1034–35 (7th Cir.
2018), we ruled that in denying plaintiff’s fourth motion for
recruitment of counsel, the district court had not addressed
sufficiently McCaa’s ability to present his case himself. The
district court had already denied earlier requests by McCaa to
recruit counsel. We were most concerned about the effects of
McCaa’s transfer to a different prison where he said he could
not locate witnesses or obtain other discovery, as well as the
effects of his fifth-grade reading level and serious mental ill-
ness. We remanded with instructions to the district court to
reconsider recruitment of counsel, but we pointedly did not
say that recruitment of counsel would be required.
On remand, the district court took a fresh look at the issue
and reached the same decision to not attempt to recruit coun-
sel. McCaa has appealed again, arguing that the district court
failed to comply with our mandate. We affirm. Judge Stadt-
mueller wrote a detailed and persuasive opinion explaining
why he did not think this was an appropriate case for attempt-
ing recruitment of counsel. He complied with our mandate
and did not abuse his discretion in reaching that decision.
As recounted in our prior opinion, 893 F.3d at 1030–31,
McCaa sued prison officials for violating the Eighth Amend-
ment through their deliberate indifference to his risk of sui-
cide and self-harm. The district court denied McCaa’s re-
quests to recruit counsel and simultaneously granted the de-
fendants’ motion for summary judgment when it denied
McCaa’s renewed request in 2016. The court decided that
No. 19-1603 3
McCaa’s lack of adequate evidence and his failure to comply
with local rules regarding summary judgment (specifically, to
cite his evidence properly) doomed his case. Id. at 1033–34.
We ruled that the district court had abused its discretion
in denying McCaa’s motion for counsel. McCaa had made
reasonable efforts to find counsel, so we said that that “in-
quiry is not at issue.” Id. at 1031–32. But the district court had
failed to undertake the critical inquiry into McCaa’s discovery
skills because, after his transfer to another prison, he could
not “locate witnesses,” id. at 1033, and his other discovery ef-
forts were “unfruitful.” Id. at 1034. He also no longer had the
help that he earlier received from another prisoner, id. at 1033,
so we directed the district court to examine McCaa’s “per-
sonal ability to litigate the case, versus the ability of the ‘jail-
house lawyer.’” Id.
We remanded the case in 2018. The district court told the
parties that if McCaa still desired counsel, he needed to renew
his request. Both McCaa and the defendants filed updated
briefing on the motion for counsel. The court declined again
to recruit counsel and simultaneously reinstated summary
judgment. In its ruling, the court discussed the difficulties that
district courts face in recruiting counsel and the practical
problems it sees in our cases addressing recruitment of coun-
sel. The court gave two independent reasons for refusing to
recruit a lawyer for McCaa. First, on remand, McCaa did not
renew his own efforts to obtain counsel. Second, several fac-
tors suggested that McCaa could adequately litigate this case,
even after his prison transfer. He could “send and receive cor-
respondence, make copies, write motions and briefs, and per-
form legal research;” his reply in support of his renewed mo-
tion for counsel was impressive; and he had recently obtained
4 No. 19-1603
a GED and now reads at a ninth-grade level. We affirm on the
basis of the second ground; we need not address the first.
On appeal, McCaa argues that the district court refused to
comply with our mandate. He contends that the mandate re-
quired the court to assess whether, after his prison transfer,
he could on his own obtain the discovery that he needed. “The
mandate rule requires a lower court to adhere to the com-
mands of a higher court on remand.” Carmody v. Bd. of Trustees
of University of Illinois, 893 F.3d 397, 407 (7th Cir. 2018). We
review de novo whether the district court complied with our
mandate on remand. See EEOC v. Sears, 417 F.3d 789, 795 (7th
Cir. 2005). We conclude that it did comply here.
Parties do not have a legal right to court-appointed
counsel in federal civil litigation. Pruitt v. Mote, 503 F.3d 647,
649 (7th Cir. 2007) (en banc). Congress gave district courts
discretion to recruit lawyers to represent indigent clients on a
volunteer basis under 28 U.S.C. § 1915(e)(1), but the statute
does not require district courts to recruit counsel for indigent
prisoners. Case law guides a district court’s discretionary
decision. In deciding whether to recruit counsel for an
indigent prisoner, a district court must ask two questions:
first, whether the prisoner reasonably attempted to obtain
counsel (or was effectively precluded from doing so); and
second, whether, “given the difficulty of the case,” the
prisoner is “competent to litigate it himself.” Pruitt, 503 F.3d
at 654. As we explained in our prior decision in this case, the
inquiry into the plaintiff’s competence and the difficulty of the
case should be particularized to the person and the case. 893
F.3d at 1032, quoting Pruitt, 503 F.3d at 656.
No. 19-1603 5
The federal courts have benefited from a long and gener-
ous tradition in the legal profession of voluntary pro bono pub-
lico work on behalf of clients who need representation as a
practical matter but who cannot afford it in the private mar-
ket, even on a contingent-fee basis. See, e.g., Gideon v. Wain-
wright, 372 U.S. 335 (1963) (future Justice Abe Fortas repre-
sented petitioner Gideon in case establishing right to ap-
pointed counsel in felony prosecutions); Del Marcelle v. Brown
County Corp., 680 F.3d 887, 889 (7th Cir. 2012) (en banc)
(thanking recruited counsel for excellent representation of pro
se plaintiff). The tradition is older than the Nation or its
courts. In one famous example, John Adams represented Brit-
ish soldiers pro bono in the colonial Massachusetts prosecu-
tion arising from the 1770 Boston Massacre.
Civil cases brought by prisoners challenging the condi-
tions of their confinement pose special challenges for the
courts and the legal profession. If the prisoner’s cost of legal
representation is zero, demand for legal representation can
rise toward infinity. Prisoners’ civil cases can range from com-
pelling and literally vital, with life-and-death stakes, to frivo-
lous distractions from the drudgery of prison life. Compare,
e.g., Glisson v. Indiana Dep’t of Corrections, 849 F.3d 372 (7th
Cir. 2017) (en banc) (prisoner died from starvation, acute renal
failure, and associated conditions five weeks after entering
prison), with Puplava, Peanut Butter and Politics: An Evaluation
of the Separation-of-Powers Issues in Section 802 of the Prison Lit-
igation Reform Act, 73 Ind. L. J. 329, 330–31 (1997) (summariz-
ing congressional debates over PLRA, including infamous
suit by prisoner who was served crunchy peanut butter in-
stead of smooth).
6 No. 19-1603
We agree with the district court that the Pruitt decision to
try to recruit counsel can and should be informed by the real-
ities of recruiting counsel in the district. The Eastern District
of Wisconsin uses a volunteer panel of attorneys rather than
an involuntary appointment system, as some other district
courts do. The veteran judge wrote here that “it is incredibly
difficult to convince local lawyers to take such cases.” We
must also recognize that district courts face a greater chal-
lenge in recruiting counsel than this court. Our court recruits
from attorneys throughout the circuit, including Chicago, and
we can also draw on attorneys from all over the nation. We
generally have an easier time convincing counsel to take on
appeals, with their paper records and limited scope, than dis-
trict courts have in recruiting counsel to litigate a case through
discovery, motion practice, and trial. District-court cases are
often longer-term and more expensive commitments. Given
an appeal’s relative advantages, we recruit scores of volunteer
attorneys every year to handle civil appeals in which a party
(often a prisoner) has no constitutional right to counsel. By
comparison, as the district court noted here, in 2018 the East-
ern District of Wisconsin received 549 prisoner cases; “well
over a third of the District’s new case filings are submitted by
unrepresented inmates.”
District courts are thus inevitably in the business of ration-
ing a limited supply of free lawyer time. Nothing in Pruitt or
our other cases on recruiting counsel prohibits a judge from
using available information and the judge’s experience to as-
sess the importance and potential merits of the case and to
assign priority accordingly. A judge might reasonably decide
to give priority to a prisoner who makes a plausible claim that
necessary surgery is being delayed unreasonably over an-
other prisoner’s claim that a much less serious condition was
No. 19-1603 7
ignored. In this case, McCaa says he threatened suicide, but
his case primarily concerns four incidents in which he man-
aged to obtain sharp objects that he used to inflict only super-
ficial cuts to his arms, which did not require stitches. And un-
fortunately, in many cases where a prisoner suffers from seri-
ous mental illness, the illness may distort the prisoner’s as-
sessment of his claims and may impair the credibility of those
claims.
The difficulty inherent in recruiting an attorney to take a
prisoner’s civil case pro bono with no expectation of compen-
sation, along with a substantial volume of pro se prisoner lit-
igation meant that the district court in this case was forced to
consider how its scarce resource of volunteer lawyers should
be best distributed. See Wilborn v. Easley, 881 F.3d 998, 1008–
09 (7th Cir. 2018) (district court did not abuse discretion by
not trying to recruit second volunteer lawyer after contacting
over 400 lawyers in Southern District of Illinois). Given these
challenges, the district court was entitled to consider the
needs of pro se litigants as a whole and to weigh how McCaa’s
own work and needs for recruited counsel compared to those
of other pro se prisoners.
With this broader context in mind, we are satisfied that the
district court adequately inquired into McCaa’s personal abil-
ity to litigate a case of this complexity. To be sure, as the dis-
trict court recognized and we have often said, claims alleging
deliberate indifference to prisoner safety and health can be
complex and difficult for a prisoner to litigate pro se. E.g., San-
tiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010); Pruitt, 503 F.3d
at 655–56. But this case was relatively straightforward—
McCaa had to prove that the defendants were aware of a risk
8 No. 19-1603
of serious self-harm and failed to take reasonable steps in re-
sponse to the danger. Although some state-of-mind issues
may involve subtle questions too complex for pro se litigants,
in this case, the subtlety of this question in this case was not
beyond McCaa. The district court noted that McCaa did not
lose at summary judgment for lack of understanding that he
had to establish the defendants’ knowledge or intentions. His
filings show that he knew he had to show that the defendants
were aware of the real risk of serious self-harm. Nor did
McCaa lose for a lack of evidence or an inability to present
cogent arguments. He lost because he did not comply with the
summary judgment rules, of which he had sufficient notice,
that required him to cite his evidence.
The district court’s inquiry into McCaa’s competence to lit-
igate this case was detailed and thorough. The court paid par-
ticular attention to McCaa’s recent briefing on remand regard-
ing his motion for counsel, noting that his opening brief had
been edited carefully to include appropriate arguments and
citations to evidence. McCaa’s reply brief, which the court de-
termined was “entirely” in McCaa’s own words, offered de-
tailed arguments based on a “careful assessment of Defend-
ants’ evidence and a marshalling of Plaintiff’s own evidence.”
(McCaa’s jailhouse lawyer had been separated from him in
2016, so the district court reasonably inferred that McCaa’s re-
cent briefing was completed without jailhouse assistance.)
With respect to McCaa’s discovery skills, the district court
noted that McCaa had moved to compel discovery and at-
tached his discovery requests, the materials produced by the
defendants, and their correspondence regarding discovery.
His reply to the defendants’ response suggested how the de-
fendants could and should have done more to produce the
No. 19-1603 9
desired information. The district court reasonably concluded
from this briefing that McCaa had shown sufficient ability to
conduct discovery. His problems with discovery could be
traced to his choice not to raise complaints with the court dur-
ing the discovery period rather than to any lack of sophistica-
tion or legal knowledge.
The court also gave adequate attention to McCaa’s
education and mental health, which figured prominently in
our earlier remand. See also Henderson v. Ghosh, 755 F.3d 559,
565 (7th Cir. 2014). The court noted that McCaa’s education
had improved from a fifth-grade to ninth-grade reading level,
which is above that “normally seen in prisoner litigants.”
McCaa insisted that his mental health issues (he has been
diagnosed with bipolar and unspecified depressive disorders)
affected his litigation efforts. But we agree with the district
court that McCaa did not clearly explain how his mental
health affected his ability to litigate, especially in the face of
his well-organized briefs, one of which the court deemed “one
of the best prisoner-prepared legal documents the Court has
read in years.”
Nor did McCaa’s transfer to another prison require re-
cruitment of counsel. We remanded in 2018 on the ground
that the district court had not sufficiently considered this rel-
evant factor. McCaa insists that he was unable to “identify[],
locat[e], secure] favorable witnesses” because of his transfer,
but he does not explain whom he sought and what testimony
he needed. As the district court observed, and as McCaa’s
briefing shows, McCaa could still “send and receive corre-
spondence, make copies, write motions and briefs, and per-
form legal research.” What McCaa required was proof that
the defendants were aware that he posed a risk of self-harm
10 No. 19-1603
and ignored this risk, so talking to prisoners at his former in-
stitution would be unlikely to “give him insight into the
minds of prison officials.” Olson v. Morgan, 750 F.3d 708, 712
(7th Cir. 2014). He did not have to be at his former prison to
serve document requests and interrogatories (which he did
serve in this case) to obtain some evidence of the defendants’
state of mind. Id.1
In the end, the difficult mix of factors weighing for and
against recruiting counsel for McCaa required a thoughtful
exercise of discretion by the district court. Judge Stadtmueller
provided such consideration. He did not abuse his discretion
in denying McCaa’s renewed motion and in reinstating the
earlier grant of summary judgment against McCaa.
The judgment of the district court is AFFIRMED.
1 The litigation of this case occurred before courts, prisons, and jails
had to adapt to the current pandemic. Our views of prisoners’ abilities to
litigate from prison have been based in part on conditions that may no
longer apply, and that may not apply for some time. These include the
ability of prisoners to send and receive mail and packages, to visit the law
library, or even to consult with other prisoners for help. It may be that
during this crisis, courts need to adjust our expectations and adapt to new
conditions in such cases, including flexibility on non-jurisdictional dead-
lines and perhaps additional efforts to recruit counsel. At bottom, we rely
heavily on the sound discretion, experience, and common sense of district
judges to adapt to these challenges.