Thomas James v. Lorenzo Eli

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 15-3034
THOMAS JAMES
Plaintiff-Appellant,
v.
LORENZO ELI, et al.
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Southern District of Indiana, Indianapolis Division.
No. 1:13-cv-541 — William T. Lawrence, Judge.
____________________
ARGUED APRIL 10, 2018 — DECIDED MAY 2, 2018
____________________
Before WOOD, Chief Judge, and FLAUM and KANNE, Circuit
Judges.
FLAUM, Circuit Judge. Plaintiff-appellant Thomas James, an
inmate with the Arizona Department of Corrections, filed a
pro se complaint against defendants-appellees, Dr. Lorenzo
Eli and Dr. Nicolas Villanustre, for alleged deliberate indiffer-
ence towards his medical care while he was incarcerated in
Indiana. Plaintiff now appeals the summary judgment en-
tered in favor of defendants, arguing that the district court
2 No. 15-3034
abused its discretion by failing to recruit counsel to assist him.
For the reasons stated below, we vacate the judgment and re-
mand for further proceedings.
I. Background
A. Factual Background
Plaintiff has been incarcerated since 2002. He began his
confinement in Arizona, but was transferred to New Castle
Correctional Facility (“New Castle”) in Indiana in April 2007.
He returned to Arizona in April 2008.
In October 2007, plaintiff developed an infected ingrown
toenail while confined at New Castle. He submitted a “Health
Needs Request” form to the prison’s Health Unit on October
23, 2007. Eli, a New Castle staff physician, evaluated plaintiff
the same day. Eli ordered culture and sensitivity tests and
prescribed ointment, antibiotics, and dressing changes. He
also prescribed Tylenol and a “lay-in pass,” which allowed
plaintiff to receive meals in his cell for ten days. He scheduled
a follow-up appointment in two weeks and referred plaintiff
to the facility’s foot doctor.
Plaintiff returned to the Health Unit on October 30, 2007,
complaining of pain. Eli informed plaintiff “that he needed to
give the antibiotics a chance to work” and provided him a box
of Ibuprofen. Eli saw plaintiff again at his two-week follow-
up on November 6, 2007. Eli claims that by that time, plain-
tiff’s toenail “looked much better.” As a result, Eli continued
plaintiff’s antibiotic and pain prescriptions for another ten
days and extended his lay-in pass for seven days.
Eli had no further involvement in the treatment of plain-
tiff’s toe. According to medical records, plaintiff saw another
New Castle physician on November 20, 2017 and requested
No. 15-3034 3
that his entire toenail be removed. The doctor granted plain-
tiff’s request and afterwards prescribed crutches, pain medi-
cation, and antibiotics.
Sometime later, plaintiff fell on a set of prison stairs and
hit his chin on the handrail, injuring his jaw. He blames the
fall on his injured toe, pain medications, and lack of adequate
bedrest following his toenail removal procedure. According
to plaintiff, his jaw “got better” and the swelling “went
down” over the next few weeks. However, the swelling re-
turned on December 25, 2007 after his left jaw “cracked” while
he was eating. Two days later, on December 27, 2007, plaintiff
explained the situation to Eli and submitted another Health
Needs Request form.1
On December 29, 2007, plaintiff was evaluated by another
New Castle physician who ordered x-rays and prescribed
Ibuprofen. When Eli examined plaintiff’s x-rays on January 2,
2008, he observed a “fractured left mandible.” He immedi-
ately transferred plaintiff to the emergency room at nearby
Wishard Hospital and prescribed him pain medication.
Wishard physicians confirmed plaintiff’s diagnosis—a “com-
minuted left mandibular subcondylar fracture with anterior
dislocation and displacement of the condyle”—and referred
him to a plastic surgeon. In the meantime, Eli examined plain-
tiff again on January 3, 2008. He put plaintiff on a soft diet,
continued his pain medication, and placed him in the infir-
mary.
Dr. Villanustre, a plastic surgeon at Wishard Hospital,
evaluated plaintiff on January 7, 2008. According to medical
1 The current record is unclear as to whether plaintiff sought medical
attention for his jaw prior to December 27.
4 No. 15-3034
records, although plaintiff “still complain[ed] of pain” in his
jaw, Villanustre noted that he had a “four fingerbreadth’s
mouth opening” with only “slight deviation of the chin to-
wards the left.” Villanustre further observed that plaintiff had
“normal occlusion with no intraoral wounds,” and “minimal
swelling on the left angle of the jaw.” As a result, given “the
length of time since the injury,” “good function” of plaintiff’s
jaw, and “normal occlusion,” Villanustre decided surgery
was unnecessary. Instead, he prescribed a soft diet and a fol-
low-up x-ray in two weeks.
B. Procedural Background
In September 2009, plaintiff filed a pro se Eighth Amend-
ment complaint against Eli and Villanustre pursuant to 42
U.S.C. § 1983, alleging that they were deliberately indifferent
to his toenail and jaw infirmities. Specifically, plaintiff
claimed Eli’s treatment to his toenail caused a staph infection
and unnecessary suffering, while Villanustre’s decision
against surgery for his jaw resulted in long-term temporo-
mandibular joint disorder and chronic migraine headaches.
Plaintiff requested counsel on the same dates he filed his
original, first, and second amended complaints. He argued,
inter alia, that his case would require “substantial investiga-
tion and discovery” and that his imprisonment in Arizona
would “greatly limit” his ability to litigate the case in Indiana.
He further asserted that the relevant issues were “complex”
and that he did not have access to necessary legal materials.
He also claimed he would have “a hard time with writing doc-
uments” due to his migraines. The district court denied all of
these motions as premature. The court noted that because
No. 15-3034 5
plaintiff’s complaints were still subject to initial screening un-
der 28 U.S.C. § 1915A, it could not yet conclude that he pre-
sented a viable claim for relief.
In July 2010, the court completed its § 1915A screening and
allowed the claims against Eli and Villanustre to proceed.
Plaintiff requested counsel again on March 21, 2011 and
claimed he was having trouble obtaining written discovery.
The district court denied the motion on May 19, 2011. The
court acknowledged that plaintiff “[had] been unsuccessful in
recruiting representation,” but nonetheless found he had
“demonstrated familiarity with his claims and the ability to
present them.” The court further noted that the issues pre-
sented were “not complex,” and that it did “not appear to be
a case in which the presence of counsel would make a differ-
ence in the outcome.” Finally, the court stated that plaintiff’s
discovery concerns were “a routine matter” it expected the
parties to overcome “without its intervention.”
Plaintiff filed a renewed motion for counsel on February
3, 2014. He argued that an attorney was necessary to “fully
and fairly” litigate his case by eliciting expert medical testi-
mony, obtaining discovery, and taking depositions. He also
reiterated that his migraines impeded his ability to represent
himself. The district court denied this motion on February 6,
2014. Once again, the court conceded that plaintiff had “made
a reasonable effort to secure representation,” but found he
was nonetheless “competent to litigate on his own” given his
“comprehensible filings, … use of the court’s processes,
and … familiarity with the factual circumstances surrounding
his legal claims.”
Plaintiff filed another motion for counsel on June 23, 2014,
restating his belief that counsel should be appointed “to hire
6 No. 15-3034
a medical expert.” The court denied this motion on November
6, 2014, stating that plaintiff had “demonstrated his aware-
ness of the facts surrounding [his] claims and his understand-
ing of the applicable legal standard.”
On September 18, 2014, while plaintiff’s last motion for
counsel was still pending, the district court granted Villanus-
tre summary judgment. In its ruling, the district court noted
that plaintiff had neither responded to Villanustre’s summary
judgment motion nor presented any evidence supporting his
claims. As a result, the court deemed Villanustre’s proposed
facts as admitted and concluded that plaintiff had not shown
deliberate indifference in Villanustre’s medical treatment.
Eli filed his own motion for summary judgment on Octo-
ber 22, 2014, which the district court granted on August 11,
2015. Although this time plaintiff filed numerous written re-
sponses, the court found they were “insufficient to create a
genuine issue of material fact” because almost all of them
were unsupported by admissible evidence.2 The court entered
final judgment the same day.
II. Discussion
In federal civil litigation, litigants possess neither a consti-
tutional nor statutory right to a court-appointed attorney.
Pruitt v. Mote, 503 F.3d 647, 649 (7th Cir. 2007) (en banc). Nev-
ertheless, under the in forma pauperis statute, a district court
“may request an attorney to represent any person unable to
afford counsel.” 28 U.S.C. § 1915(e)(1). Thus, “an indigent
civil litigant may ask the district court to request an attorney
2 Plaintiff
submitted a number of personal declarations, but only one
of them was sworn under penalty of perjury.
No. 15-3034 7
to represent him pro bono publico.” Pruitt, 503 F.3d at 649.
“[T]he language of § 1915(e)(1) is entirely permissive; it says
the court ‘may’ request an attorney.” Id. at 654 (emphasis
added). As a result, “the decision whether to recruit pro bono
counsel is left to the district court’s discretion.” Id.
“This ‘does not mean that no legal standard governs that
discretion.’” Id. (quoting Martin v. Franklin Capital Corp., 546
U.S. 132, 139 (2005)). “[A] motion to [a court’s] discretion is a
motion, not to its inclination, but to its judgment; and its judg-
ment is to be guided by sound legal principles.” Id. (second
alteration in original) (quoting Martin, 546 U.S. at 139). In
Pruitt, we announced this Circuit’s operative legal standard:
When confronted with a request under
§ 1915(e)(1) for pro bono counsel, the district
court is to 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?
Id. The first step in this analysis is not at issue here; the record
indicates (and the district court acknowledged) that plaintiff
made repeated, unsuccessful attempts to obtain counsel on
his own accord.
The second step is itself “grounded in a two-fold inquiry
into both the difficulty of the plaintiff’s claims and the plain-
tiff’s competence to litigate those claims himself.” Id. at 655.
“The inquiries are necessarily intertwined; the difficulty of
the case is considered against the plaintiff’s litigation capabil-
8 No. 15-3034
ities, and those capabilities are examined in light of the chal-
lenges specific to the case at hand.” Id. Ultimately, “[t]he ques-
tion is not whether a lawyer would present the case more ef-
fectively than the pro se plaintiff; ‘if that were the test, district
judges would be required to request counsel for every indi-
gent litigant.’” Id. (internal quotation marks omitted) (quoting
Johnson v. Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006)). “Ra-
ther, the question is whether the difficulty of the case—factu-
ally and legally—exceeds the particular plaintiff’s capacity as
a layperson to coherently present it to the judge or jury him-
self.” Id. Notably, this inquiry extends beyond the trial stage
of the proceedings. See id. The relevant concern is “whether
the plaintiff appears competent to litigate his own claims,
given their degree of difficulty.” Id. This includes all of the
tasks “that normally attend litigation: evidence gathering,
preparing and responding to motions and other court filings,
and trial.” Id.
“[B]ecause the decision belongs to the district court, we
have resisted laying down categorical rules regarding recruit-
ment of counsel in particular types of cases.” Id. at 656.
“[T]here are no hard and fast rules for evaluating the factual
and legal difficulty of the plaintiff’s claims,” nor are there
“fixed requirements for determining a plaintiff’s competence
to litigate his own case.” Id. at 655. Rather, “[t]he inquiry into
plaintiff competence and case difficulty is particularized to
the person and case before the court.” Id. at 656.
Still, we have recognized that certain circumstances de-
mand particular judicial consideration. We have noted, for ex-
ample, that complexity increases and competence decreases
as a case proceeds to the advanced phases of litigation. “[A]s
the case moves beyond the pleading stage, into discovery, and
No. 15-3034 9
closer to trial, the plaintiff will face an increasingly complex
set of demands.” Id. at 663 (Rovner, J., concurring). “Taking
depositions, conducting witness examinations, applying the
rules of evidence, and making opening statements are beyond
the ability of most pro se litigants to successfully carry out.”
Miller v. Campanella, 794 F.3d 878, 880 (7th Cir. 2015) (quoting
Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015)). Thus,
“[d]istrict courts abuse their discretion where they fail to con-
sider the complexities of advanced-stage litigation activities
and whether a litigant is capable of handling them.” Perez, 792
F.3d at 785.
We have also highlighted the “additional hurdles” facing
a prisoner-plaintiff who is “transferred to another facility af-
ter the events underlying his claims,” and therefore does not
“have ready access to any of the witnesses, documents or de-
fendants … necessary to put on a credible case.” Santiago v.
Walls, 599 F.3d 749, 762–63 (7th Cir. 2010); see also, e.g., Junior
v. Anderson, 724 F.3d 812, 815 (7th Cir. 2013) (noting that plain-
tiff was incarcerated 300 miles from the location of his under-
lying incident); Navejar v. Iyiola, 718 F.3d 692, 698 (7th Cir.
2013) (“[O]nce Navejar was transferred, he faced ‘significant
problems’ in litigating pro se.” (quoting Santiago, 599 F.3d at
762)); Tucker v. Randall, 948 F.2d 388, 391 (7th Cir. 1991) (not-
ing that plaintiff was “unable to investigate crucial facts be-
cause he [was] incarcerated in a facility different from that in
which the alleged conduct took place”); but see Olson v. Mor-
gan, 750 F.3d 708, 712 (7th Cir. 2014) (affirming denial of re-
cruited counsel where the plaintiff did not “explain[] why the
transfer affected his ability to litigate [the] case”).
We have similarly recognized that prisoners “often face
difficulty ‘when litigating constitutional claims that involve
10 No. 15-3034
the state of mind of the defendant,’” such as those involving
deliberate indifference. Henderson v. Ghosh, 755 F.3d 559, 566
(7th Cir. 2014) (quoting Santiago, 599 F.3d at 761). “[W]hen it
comes to nuanced legal issues like … deliberate indiffer-
ence, … even a relatively sophisticated litigant may find it dif-
ficult to identify and present the right type of evidence.”
Pruitt, 503 F.3d at 664 (Rovner, J., concurring).
Finally, we have acknowledged that “cases involving
complex medical evidence are typically more difficult” for
pro se litigants. Santiago, 599 F.3d at 761; Perez, 792 F.3d at 784;
Pruitt, 503 F.3d at 655–56; Zarnes v. Rhodes, 64 F.3d 285, 289 n.2
(7th Cir. 1995) (collecting cases). This is particularly true
where a prisoner has received at least some medical treatment,
because he must show “a substantial departure from accepted
professional judgment, practice, or standards,” and expert
medical evidence is often required to prove this aspect of his
claim. Henderson, 755 F.3d at 566 (quoting McGee v. Adams, 721
F.3d 474, 481 (7th Cir. 2013)); see also Greeno v. Daley, 414 F.3d
645, 658 (7th Cir. 2005) (noting that the plaintiff’s case was “le-
gally more complicated than a typical failure-to-treat claim
because it require[d] an assessment of the adequacy of the
treatment that [the plaintiff] did receive, a question that
[would] likely require expert testimony”); Jackson v. Cty. of
McLean, 953 F.2d 1070, 1073 (7th Cir. 1992) (“Jackson needed
the expert testimony of a physician or health professional to
prove … the accepted professional practice … and that [the
treatment the plaintiff received] constituted a substantial de-
parture from the accepted professional practice.”). “[U]neces-
sary risk may be imperceptible to a lay person,” and “can be
obscured by the need for specialized expertise to understand
the various implications of a particular course of treatment.”
No. 15-3034 11
Petties v. Carter, 836 F.3d 722, 729 (7th Cir. 2016) (en banc). In-
deed, “[e]ven among the medical community, the permissible
bounds of competent medical judgment are not always clear.”
Id. Thus, “it can be challenging to draw a line between an ac-
ceptable difference of opinion … and an action that reflects
sub-minimal competence and crosses the threshold into de-
liberate indifference.” Id. (footnote omitted).
In the end, none of these issues are “necessary or conclu-
sive.” See Pruitt, 503 F.3d at 655 n.9. The ultimate decision “is
a practical one, made in light of whatever relevant evidence is
available on the question.” Id. at 655. “To inform the decision,
the judge should review any information submitted in sup-
port of the request for counsel, as well as the pleadings, com-
munications from, and any contact with the plaintiff.” Id. A
judge should also consider “the plaintiff’s literacy, communi-
cation skills, educational level, and litigation experience,”
and, if supported by evidence in the record, “the plaintiff’s
intellectual capacity and psychological history.” Id.
We review the denial of a request for recruitment of coun-
sel for an abuse of discretion. Id. at 658. This normally occurs
where: “(1) the record contains no evidence upon which the
court could have rationally based its decision; (2) the decision
is based on an erroneous conclusion of law; (3) the decision is
based on clearly erroneous factual findings; or (4) the decision
clearly appears arbitrary.” Id. (quoting Musser v. Gentiva
Health Servs., 356 F.3d 751, 755 (7th Cir. 2004)). A trial court
can also abuse its discretion “when it overlooks essential evi-
dence or fails to consider relevant factors.” Jardien v. Winston
Network, Inc., 888 F.2d 1151, 1159 (7th Cir. 1989); see also Kruger
v. Apfel, 214 F.3d 784, 786 (7th Cir. 2000).
12 No. 15-3034
“As with any discretionary determination, the question on
appellate review is not whether we would have recruited a
volunteer lawyer in the circumstances, but whether the dis-
trict court applied the correct legal standard and reached a
reasonable decision based on facts supported by the record.”
Pruitt, 503 F.3d at 658; see also Farmer v. Haas, 990 F.2d 319, 322
(7th Cir. 1993) (“[O]ur review of the judge’s decision not to
request a lawyer for the plaintiff is deferential. We ask not
whether [the judge] was right, but whether he was reasona-
ble.”). Moreover, “[e]rror is relative to what the judge reason-
ably could have known at the time he had to make his ruling.”
Pruitt, 503 F.3d at 659 (alteration in original) (emphasis
added) (quoting Farmer, 990 F.2d at 322). “[T]he judge cannot
know with certainty whether the plaintiff will actually prove
to be competent to litigate his own case,” and instead “can
only make a determination based on the record as it exists
when the motion is brought.” Id. at 656. Thus, our review “is
limited to the record at the time the decision was made”;
“[e]vidence unavailable at the time discretion was exercised
cannot be used to demonstrate abuse of that discretion.” Id. at
656, 659.
Also, our inquiry does not stop with an abuse of discretion
analysis. “Even if a district court’s denial of counsel amounts
to an abuse of its discretion, we will reverse only upon a
showing of prejudice.” Id. at 659. A showing of prejudice does
not require the plaintiff to demonstrate “that he would have
won his case had he been represented by counsel.” Id. (empha-
sis added). “Instead, an erroneous denial of pro bono counsel
will be prejudicial if there is a reasonable likelihood that the
presence of counsel would have made a difference in the out-
come of the litigation.” Id. Additionally, “[u]nlike abuse of
No. 15-3034 13
discretion, prejudice may be established by a litigant’s poor
performance before or during trial.” Id.
For example, if the record demonstrates that the
pro se plaintiff was incapable of engaging in any
investigation; or locating and presenting key
witnesses or evidence; or presenting a reasona-
bly coherent opening statement, witness exami-
nations, and closing argument during trial, the
plaintiff may be able to establish a reasonable
likelihood that the presence of counsel would
have made a difference in the outcome.
Id. at 659–60. “This is not to say every mistake along the way
will establish prejudice; some erroneous denials of pro bono
counsel will turn out to be harmless.” Id. at 660. Overall,
“[w]hether there is a reasonable likelihood that the presence
of counsel would have altered the outcome depends upon a
totality-of-the-circumstances review of the proceedings as a
whole.” Id.
Turning to the present case, we hold that the district court
abused its discretion by declining to recruit counsel at the
summary judgment stage of plaintiff’s proceedings.3 Plain-
3 The denial of plaintiff’s initial counsel requests clearly did not con-
stitute an abuse of discretion. Those motions coincided with the filing of
plaintiff’s original, first, and second amended complaints, respectively.
“Requests for counsel typically are made by plaintiffs … at the outset of
litigation, and at that stage district judges frequently, and with good rea-
son, will deny those requests.” Pruitt, 503 F.3d at 663 (Rovner, J., concur-
ring); see also Romanelli v. Suliene, 615 F.3d 847, 852 (7th Cir. 2010). “Many
pro se suits turn out to be frivolous, and a judge justifiably will be reluc-
tant to solicit pro bono assistance from the bar until she is sure that the
14 No. 15-3034
tiff’s case involves all of the complicating factors discussed su-
pra. First, his allegations involve defendants’ state of mind. See
Henderson, 755 F.3d at 566; Santiago, 599 F.3d at 761. Second,
his case progressed beyond the pleadings and he was facing
the “increasingly complex” demands of discovery and dis-
positive motions. See Pruitt, 503 F.3d at 663 (Rovner, J., con-
curring); see also Miller, 794 F.3d at 880; Perez, 792 F.3d at 785.
Third, his confinement in Arizona placed him over 1,000 miles
from the location of his underlying claims. See Santiago, 599
F.3d at 762; Junior 724 F.3d at 815; Navejar, 718 F.3d at 698;
Tucker, 948 F.2d at 391.
Finally, complex medical evidence arguably surrounded
the treatment of his jaw fracture. See Santiago, 599 F.3d at 761;
Perez, 792 F.3d at 784. Neither his official diagnosis (a commi-
nuted left mandibular subcondylar fracture with anterior dis-
location and displacement of the condyle) nor Villanustre’s
findings (four fingerbreadth’s mouth opening with slight de-
viation of the chin toward the left; normal occlusion with no
intraoral wounds; and minimal swelling on the left angle of
the jaw) are readily decipherable without specialized training.
Plaintiff’s condition was apparently so complex that it neces-
sitated referrals from general practitioners to a doctor who
specialized in plastic surgery. Additionally, his treatment took
place at multiple medical institutions (New Castle, Wishard,
case has at least some potential merit.” Pruitt, 503 F.3d at 663 (Rovner, J.,
concurring). Such was the case here, where the court had not yet com-
pleted its mandatory 28 U.S.C. § 1915A screening. Plaintiff’s third motion
on March 21, 2011 presents a tougher question; by that point, the case had
advanced beyond the pleading stage and plaintiff complained of his ina-
bility to obtain written discovery from Arizona. We need not make a de-
finitive ruling, however, given plaintiff’s later motions on February 3 and
June 23, 2014.
No. 15-3034 15
and his local facility in Arizona), and included x-rays and CT
scans. This not only broadened the scope of relevant discov-
ery, but also necessitated some level of expertise for its proper
interpretation.
The district court was aware of each of these complications
when it denied plaintiff’s February 3 and June 23, 2014 coun-
sel requests. However, its rulings do not specifically address
any of these aggravating issues. Instead, the court makes cur-
sory reference to plaintiff’s “awareness of the facts,” “compre-
hensible filings,” “use of the court’s processes,” and “under-
standing of the applicable legal standard,” without “delving
into any of [plaintiff’s] personal characteristics or the specifics
of the case.” See Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th
Cir. 2014). Even under our deferential standard of review, this
is not enough. “Though the district court need not address
every point raised in recruitment motions, it must address
those that bear directly on whether ‘the difficulty of the case—
factually and legally—exceeds the particular plaintiff’s capac-
ity as a layperson to coherently present it to the judge or jury
himself.’” Id. at 659 (quoting Pruitt, 503 F.3d at 655); see also
Santiago, 599 F.3d at 765 (“[T]he district court failed to take
into consideration the peculiar circumstances of this case that
made the pretrial phase of this litigation especially difficult
for this particular plaintiff.”). Thus, “the district court applied
the wrong—that is, an incomplete—legal standard when re-
viewing [plaintiff’s] motions for pro bono counsel.” Pruitt,
503 F.3d at 660. Accordingly, although plaintiff’s unique
“combination of circumstances may not always warrant the
recruitment of counsel,” the district court’s “methodological
lapse in failing to give full consideration to each factor consti-
tutes an abuse of discretion.” See Santiago, 599 F.3d at 765; see
16 No. 15-3034
also Pruitt, 503 F.3d at 660 (“The court’s failure to undertake
[the] necessary inquiry is an abuse of discretion.”).
We make this determination while recognizing that “de-
ciding whether to recruit counsel ‘is a difficult decision: Al-
most everyone would benefit from having a lawyer, but there
are too many indigent litigants and too few lawyers willing
and able to volunteer for these cases.’” Henderson, 755 F.3d at
564 (quoting Olson, 750 F.3d at 711). “District courts are thus
placed in the unenviable position of identifying, among a sea
of people lacking counsel, those who need counsel the most.”
Olson, 750 F.3d at 711. Moreover, “[a] district court may only
ask, not compel, an attorney to represent a litigant who is un-
able to afford counsel.” Cuevas v. United States, 580 F. App’x
71, 74 (3d Cir. 2014) (unpublished opinion). As a result, “iden-
tifying a volunteer is not always possible, especially for cases
outside of major metropolitan areas.” Wilborn v. Ealey, 881
F.3d 998, 1008 (7th Cir. 2018).
Still, even with “the great deference that we owe to the
district court … scrutiny of the record for methodological
lapses is well within” our duty and capability. See Santiago,
599 F.3d at 765. The denials of counsel at issue here do not
withstand such scrutiny.
Finally, plaintiff’s deficient pretrial performance suffi-
ciently establishes prejudice. Despite his numerous filings, he
was unable to respond to defendants’ summary judgment
motions with admissible evidence. His attempts to conduct
discovery were equally hopeless. Instead of seeking medical
records through subpoenas or formal discovery requests, he
filed multiple improper motions with the court. Each time, the
court fruitlessly reminded plaintiff to utilize appropriate dis-
No. 15-3034 17
covery methods. As a result, plaintiff never obtained his com-
plete medical records from his current physician. Plaintiff also
failed to depose any witnesses, including the named defend-
ants, who could have been forced to testify “about their sub-
jective knowledge of [his] health and accepted standards of
care.” See Henderson, 755 F.3d at 567. He likewise did not ob-
tain “other evidence on the accepted standard of care, [such
as] an expert report.” See id. (emphasis added). Therefore, on
the whole, a lawyer appointed in time to help plaintiff with
discovery could have potentially helped him “present suffi-
cient facts to create a genuine issue about why [defendants]
… advised a continuation of ineffective treatments that pro-
longed his pain.” See Dewitt, 760 F.3d at 659.
III. Conclusion
For the foregoing reasons, we REVERSE the denial of plain-
tiff’s motions for recruitment of counsel, VACATE the judg-
ment, and REMAND for further proceedings consistent with
this opinion.