                           In the
 United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1620
BENJAMIN PRUITT,
                                          Plaintiff-Appellant,
                              v.

STEPHEN D. MOTE, et al.,
                                       Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
              for the Central District of Illinois.
            No. 03-1030—Harold A. Baker, Judge.
                        ____________
ARGUED NOVEMBER 14, 2006—DECIDED DECEMBER 28, 2006
                   ____________


 Before EASTERBROOK, Chief Judge, and POSNER and
COFFEY, Circuit Judges.
  EASTERBROOK, Chief Judge. A jury found for all defen-
dants in this suit under 42 U.S.C. §1983. Benjamin Pruitt,
the plaintiff, does not contest the accuracy of the instruc-
tions 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 (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
2                                             No. 05-1620

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 sub-
ject to deferential review. See, e.g., Johnson v. Doughty,
433 F.3d 1001, 1006 (7th Cir. 2006); Jackson v. McLean
County, 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 unexpect-
edly, 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 retali-
ated on account of his complaints.
  At the one-day trial, Pruitt gave the only testimony
supporting his contentions. He called some other in-
mates 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-examina-
tion was ineffectual. The other defendants also testified.
Two (Stephen D. Mote and Patricia Boedecker) insisted
that they had not received either oral or written com-
plaints from Pruitt. A third (Adella Jordan-Luster) testi-
fied 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
No. 05-1620                                               3

these defendants wavered during the brief cross-examina-
tion 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 appara-
tus—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 inter-
vene to prevent or stop a sexual assault, see Farmer v.
Brennan, 511 U.S. 825 (1994)—made the slightest dif-
ference.
  Pruitt maintains that, as an uneducated prisoner, he
could not grasp legal concepts such as “deliberate indiffer-
ence” (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 deter-
mine who was telling the truth. (Once it found that Mesch
is not culpable, the other defendants prevailed automati-
cally. The complications posed by concepts such as “delib-
erate 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 plain-
tiff is entitled to counsel at every jury trial.” (Alterna-
4                                               No. 05-1620

tively, 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 plaintiff ’s
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 pro-
fessional 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
cases; 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.
No. 05-1620                                                   5

   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 plain-
tiff 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 possi-
bility 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 dam-
ages, and it would approximate the sort of filter that
lawyers apply when deciding which cases to take volun-
tarily. 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 cases have followed. What may be said for this
middle ground is that even prisoners sometimes can
6                                             No. 05-1620

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 coun-
sel. 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 discre-
tion (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 tran-
scripts; 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 ap-
parent that the plaintiff was not competent to try the
No. 05-1620                                                7

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 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. (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 (1963), many criminal trials
were conducted without counsel for the defense. When (in
Gideon) the Court overruled Betts v. Brady, 316 U.S. 455
(1942), which held that judges have discretion to distin-
guish between cases in which litigants really need coun-
sel 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
8                                              No. 05-1620

the sixth amendment does not apply, such as summary
courts martial, see Middendorf v. Henry, 425 U.S. 25
(1976), criminal trials that do not lead to imprisonment,
see Argersinger v. Hamlin, 407 U.S. 25 (1972), and child-
custody disputes, see Lassiter v. Department of Social
Services, 452 U.S. 18 (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 Argersinger 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 way 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




  POSNER, Circuit Judge, dissenting. A district judge is
authorized to request a lawyer to represent an indigent
party in a civil case. 28 U.S.C. § 1915(e)(1). The statute
No. 05-1620                                                 9

sets forth no criteria for the exercise of this authority,
but the case law in this circuit (1) requires that the
indigent try to find a lawyer to represent him voluntarily,
as it were, before he turns to the court, e.g., Gil v. Reed,
381 F.3d 649, 656 (7th Cir. 2004), and, the quest having
failed, (2) entrusts the decision whether to request counsel
to the discretion of the district judge, e.g., Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006), (3) implying
deferential review by the court of appeals. E.g., Farmer v.
Haas, 990 F.2d 319, 322 (7th Cir. 1993). As an original
matter, one might have thought that if the indigent
plaintiff couldn’t find a private lawyer to handle his case
on a contingent-fee or other basis (the lawyer might be
satisfied with the prospect of a fee award should the
plaintiff prevail), this would show that his case had no
merit and should therefore be dismissed out of hand. This
is the preferred position of the majority, and I have
considerable sympathy with it. But it is not the law, Gil v.
Reed, supra, 381 F.3d at 657-58; Jackson v. County of
McLean, 953 F.2d 1070, 1073 (7th Cir. 1992), and it
would probably require a revision of section 1915(e)(1) to
make it the law. The statute implies that Congress is not
content to leave the representation of indigents in civil
cases, or even just in civil nonequity cases (for it is diffi-
cult to see how an indigent could obtain representation
in a case in which there were no monetary stakes), entirely
to the market.
  Deferential review of the district judge’s refusal to
request a lawyer to take an indigent’s case makes sense
not only because of the absence of statutory guidance
and the quintessentially judgmental character of a deter-
mination of whether a litigant can represent himself
effectively, but also because the district judge has the
advantage over the appellate judges of having observed
the litigant at first hand, which should be a considerable
aid in assessing the litigant’s competence. Because of the
10                                              No. 05-1620

huge number of prisoner suits, very few of which are
meritorious, district judges are naturally and rightly
reluctant to pepper the bar with requests to represent
prisoners.
  So Pruitt faces a steep uphill fight to get the district
judge’s ruling denying him counsel reversed. But I am
persuaded that the ruling should be reversed even under
a highly deferential standard of appellate review.
  I have not found any case in which a prisoner as poorly
educated as Pruitt is was denied the assistance of counsel
in a jury trial. The vast majority of prisoner civil rights
cases are disposed of on a motion to dismiss or a motion
for summary judgment, and the prisoner should be able to
establish without assistance of counsel that he has enough
evidence of each element of his claim (and enough evi-
dence to rebut any defenses raised by the defendant) to
survive summary judgment. Pruitt, in his pretrial sub-
missions, had the assistance of a “jailhouse lawyer,” but
not at the trial. Rarely can a prisoner show a need at the
pretrial stage for a lawyer that is so acute that the denial
of his request can be thought an abuse of discretion.
  This case is unusual because it survived the preliminary
rounds and went to a jury. Pruitt renewed his request for
assistance of counsel after the judge set the case for trial,
and I think it is clear beyond any reasonable doubt that,
lacking as he does any education beyond the sixth grade
and any employment or other experience that might
rectify that deficit, he could not have been expected to be
able to conduct a jury trial in which the defendants had
competent lawyers, as they did. Nor can we assume that
the district judge, having observed Pruitt’s conduct in the
courtroom before the trial began, had insights denied to us
into his ability to represent himself. Pruitt hadn’t been
in the courtroom yet. He had participated in two pretrial
conferences by video, but the record doesn’t indicate how
No. 05-1620                                              11

long either conference lasted. His written pretrial submis-
sions, some made with the assistance of a jailhouse lawyer,
would not have revealed his forensic ability.
   The trial of a jury case is an art, and a demanding one;
the state’s lawyer conceded at the argument of the appeal
that he was not himself competent to conduct a jury trial.
He said, though, that this was an easy case, but he was
wrong. It was a simple case, because it was a swearing
contest between the plaintiff, who said he had been
sexually abused by one of the defendants, and the defen-
dants (the alleged abuser plus other guards), who said he
hadn’t been. But difficulty and complexity are not syn-
onyms. This was a difficult case because the outcome
depended entirely on which side created the better impres-
sion in the eyes of the jury. Lawyers in our system coach
their witnesses in advance of trial in an effort to make
them seem more persuasive to jurors; Pruitt had no one to
coach him. Lawyers cross-examine the opposing side’s
witnesses; Pruitt had no experience in cross-examina-
tion. And not knowing the rules of evidence, he could not
object to improper testimonial or documentary evidence
tendered by the defendants. He was unable to conduct a
direct examination of himself (he is not a ventriloquist), so
the judge had to question him, as in a Continental-type
(“inquisitorial”) trial.
   Pruitt proved incapable of giving a coherent opening or
closing argument. After a good beginning to his opening
statement (“Each one of my witnesses is going to verify
that Officer Mesch just harassed me everyday”), he began
to disintegrate. He said “At this time, the only thing
I could say is that the witness they got now, I don’t know
if they are going to verify that they seen me went to the
washroom at the time or just been seeing me out—I mean
coming to the chow. I’m sorry. I’m sorry. I’m kind of
nervous. Let’s see. What do you want me to say now? What
do you want me to begin? Like what?” The judge asked him
12                                            No. 05-1620

whether he was going to tell the jury what the evidence
would show, and specifically whether he had complained
about the defendant’s conduct. Pruitt’s answer was
incoherent: “No, they should have been charged me why
they let the officers—why they do something to him. I ain’t
looking to go to seg or try to go to Tamms or nothing like
that. I am trying to go home. I ain’t trying to catch no
time in the penitentiary. It’s just telling me put a law-
suit or something.” The judge then asked him whether that
was his opening statement, and Pruitt replied: “I don’t
know. Judge, I don’t know how to defend myself. I don’t
know where to begin.”
  The judge then conducted in effect a direct examination
of Pruitt. The defense counsel then cross-examined him
and after that conducted direct examination of the defense
witnesses. Pruitt objected to their testimony only when
prompted by the judge, and he conducted perfunctory
cross-examination and did not object to any of the docu-
mentary evidence presented by the defense. He made no
objections or suggestions at the instructions conference.
His closing argument occupies only a page of transcript,
though he did offer brief rebuttal argument as well; but
his arguments amounted to no more than that the de-
fense witnesses were lying. Defense counsel’s lucid and
detailed closing argument occupies five and a half pages
of the transcript.
  Pruitt’s incompetence at playing lawyer doomed his case.
Yet it is not as if his case were weak. The abuses that he
alleged are not uncommon in prisons. Had the jury chosen
to believe him, this would not have struck anyone as a
miscarriage of justice, which is why at the close of the
evidence the judge denied the defendants’ motion for
judgment as a matter of law. He said that if the jury
believed Pruitt, “it would be a clear sexual
assault. . . .I am going to give the case to the jury. No
question about it.”
No. 05-1620                                               13

  This case should help us understand why the Supreme
Court does not allow a defense of harmless error to a
claim of denial of the right to counsel in criminal cases.
Rose v. Clark, 478 U.S. 570, 577-78 (1986); Chapman v.
State of California, 386 U.S. 18, 23 n. 8 (1967). When a
party is not represented, it is often impossible to deter-
mine whether he had a strong or a weak case. But since it
is apparent that had Pruitt been represented by a com-
petent lawyer he might well have won his case, it was a
serious, though not an ill-intentioned, mistake to deny
his request for counsel once the judge decided that the
case was going to be decided by a jury.
   I am not suggesting that a prisoner who survives
summary judgment is always entitled to a lawyer, even
if a jury trial is looming; for some prisoners are capable
of conducting such a trial (I’ll mention one in a moment).
I am not proposing a “per se” rule with an exception for
disbarred lawyers. (The term “per se” appears seven times
in the majority opinion; “per se” rule is a term from
antitrust law, where it is a frequent source of mischief.)
The majority opinion casts about for a suitable rule to
govern the issue, and finding none concludes that the
decision is a matter for the exercise of discretion by the
district judge. I agree. But I do not agree that the exer-
cise of that discretion is unreviewable, which is the tenor
of the majority opinion. Ignoring the cases that hold that
the inability of an indigent prisoner to interest a lawyer
in his case is not an automatic basis for refusing to re-
quest a lawyer to represent him, the majority intimates
at the end of its opinion that there might never be a case
so difficult that the refusal of the district judge to request
a lawyer to represent the plaintiff would be an abuse of
discretion.
  Many prisoners are better educated than Pruitt, or have
extensive experience in the courtroom. Some are jail-
house lawyers; some are disbarred lawyers; some have
14                                              No. 05-1620

little education or experience but are articulate and have
a knack for the adversary process; and some cases really
are quite simple. So there will be some cases in which,
though they are headed for a jury trial, the district judge
would not be abusing his discretion to refuse to request
a lawyer for the plaintiff. But this is not such a case.
  Farmer v. Haas, supra, which my colleagues overread,
was such a case. We were at pains to assure ourselves that
Farmer was competent to represent herself. As we ex-
plained, “When Farmer moved for counsel in April 1991, a
week before trial, she had been litigating since February
1988 and had prosecuted a successful appeal to this
court. . . . Besides being an experienced litigator, Farmer
has a history of fraud, arguing the possession of an
intelligence superior to that of a criminal who relies on
brawn rather than brains. The transcript of the trial
discloses a shrewd cross-examination by Farmer of one of
the defendants on the issue of forgery, bringing out all the
contradictions and implausibilities in that defendant’s
testimony. It is true, as her appointed counsel in this court
points out, that Farmer had difficulty coping with the
objections that the defendants’ counsel made to her direct
testimony. But her counsel has made no effort to show that
the objections were groundless, so that the presence of a
lawyer to contest the objections would have made a differ-
ence.” 990 F.2d at 322-23. The difference in competence
between Farmer and Pruitt is striking, but goes unre-
marked by my colleagues, who are content to quote
language in Farmer v. Haas that supports their decision.
It is a disservice to a court to wrench the general language
in its opinions out of context.
  I do not wish to be understood as suggesting that a
prisoner reasonably adjudged in advance of trial to be
capable of representing himself should be entitled to a new
trial, and thus a second bite at the apple, if he
underperforms at trial. The judgment of competence is
No. 05-1620                                              15

to be made before the trial begins; the relevance of my
discussion of Pruitt’s performance at trial is merely to
show that the error in failing to request assistance of
counsel for him was not harmless, as it would have
been had he done a tolerable job. I am suggesting only
that a judge who has ordered a jury trial should request
a lawyer for a prisoner who plainly lacks the educa-
tional or vocational background that would enable him to
conduct such a trial with minimum competence. 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 Amend-
ment.
  The cases that reject a right to counsel in civil cases,
such as Lassiter v. Department of Social Services, 452 U.S.
18 (1981), are inapposite. (Nor can those cases be read
as holding that every civil litigant is capable of conduct-
ing a trial without the assistance of counsel. That would
be absurd, as well as inconsistent with section 1915(e)(1).)
Pruitt claims no such right. He is not asking the govern-
ment to pay for a lawyer for him; he is merely asking
the district judge to help him find a volunteer.

A true Copy:
      Teste:

                       ________________________________
                       Clerk of the United States Court of
                         Appeals for the Seventh Circuit




                  USCA-02-C-0072—12-28-06
