                              In the

United States Court of Appeals
               For the Seventh Circuit

No. 11-2999

U VION JUNIOR,
                                                  Plaintiff-Appellant,
                                  v.

S UMMER A NDERSON,
                                                 Defendant-Appellee.


             Appeal from the United States District Court
        for the Northern District of Illinois, Eastern Division.
               No. 09 C 813—Marvin E. Aspen, Judge.



        A RGUED JUNE 6, 2013—D ECIDED JULY 30, 2013




  Before P OSNER, R OVNER, and W OOD , Circuit Judges.
  P OSNER, Circuit Judge. The plaintiff, a pretrial detainee
in a maximum-security tier of the Cook County Jail in
Chicago, brought suit under 42 U.S.C. § 1983 against a
guard (against others as well, but he doesn’t challenge
the district judge’s dismissal of them), Anderson, who
he claims failed to protect him from an attack by other
inmates. The district judge granted summary judgment
in favor of Anderson. The plaintiff challenges that
2                                               No. 11-2999

ruling and also the judge’s anterior refusal to request
assistance of counsel for the plaintiff.
  Construed as favorably to the plaintiff as the record
permits, the facts pertinent to his case are as follows:
  The plaintiff’s tier consisted of 19 double-occupancy
cells, containing therefore a total of 38 prisoners. We
don’t know how many of them were pretrial detainees
and how many were serving sentences, so we’ll refer to
all of them simply as prisoners. Apparently the cells
were arrayed in two rows, one of 10 cells and one of 9,
facing each other. The prisoners were allowed to spend
some time each day out of their cells, in a dayroom
that had a television set. But in order to minimize “de-
tainee incidents,” only the prisoners in one row of cells
were allowed to be in the dayroom at the same time;
the other prisoners remained locked in their cells until
it was their turn to visit the dayroom. So instead of
38 prisoners milling about in the dayroom at the same
time, at most 20 were permitted to be there.
  On the day of the attack, defendant Anderson was
the tier officer. She occupied a station, protected by bars,
from which she could see the tier of cells with the
corridor separating the two rows, and also the dayroom.
(The record contains no diagram; that is one of many
unfortunate omissions.) A control panel at her station
indicated for each cell whether it was securely locked.
Shortly after 3 p.m. (the beginning of her shift) she
noticed that the control panel indicated that two of the
occupied cells, one in each row, were not securely locked.
She wrote “security risk” in her log but did nothing
further, such as ask another guard to lock the cells.
No. 11-2999                                                  3

  At 6:30 that evening, Anderson released half the tier
occupants for their scheduled time in the dayroom,
the plaintiff among them. He testified at his deposition
that he overheard some of the other prisoners in
the dayroom ask Anderson to let the prisoners in the
other half of the tier out of their cells so that they could
go to the dayroom too. The district judge said that
this testimony was inadmissible hearsay. It was not.
The plaintiff was testifying to what he heard—the
request that Anderson let out the other inmates—rather
than to the truth of anything they said, such as that
the prisoners in the other tier wanted to be released
from their cells so that they could go to the dayroom out
of turn. Testimony to what one heard, as distinct from
testimony to the truth of what one heard, is not hearsay.
Dutton v. Evans, 400 U.S. 74, 88 (1970); Tunis v. Gonzales, 447
F.3d 547, 551 (7th Cir. 2006).
  Shortly afterward the plaintiff heard the sound of
cell doors opening, but he saw none of the prisoners
enabled by the opening of their cells to leave
them enter the dayroom. Instead they congregated in
the darkened corridor between the two rows of cells.
The lights in the corridor had not been turned on, ac-
cording to the plaintiff, and so the corridor was dark,
and maybe the prisoners didn’t want to be easily recog-
nized.
  Wanting to return to his cell to use the bathroom
facilities in it, the plaintiff stepped into the corridor (it
was now about 6:50 p.m.)—where he was forthwith
attacked from behind by a number of prisoners, armed
4                                               No. 11-2999

with shanks, who stabbed him repeatedly. Most of his
attackers seem to have followed him out of the
dayroom, but two of them had come from cells in the
row of cells that were supposed to be locked. One of
them was from a cell that Anderson had noted was
not securely locked.
  The plaintiff broke free of his attackers and ran toward
Anderson’s station, shouting for help, but she was not
there. He passed out. When he awoke, several guards
were present. He was hospitalized for two days for treat-
ment of his multiple stab wounds.
  Anderson denies having left her station, yet oddly
admits not having witnessed the attack—though she
insists, contrary to the plaintiff, that the corridor lights
were on. She denies having let anyone from the row of
cells that were supposed to be locked out of his cell.
But one of the attackers, Raymond Anderson—presum-
ably not a relative of the defendant (though a lawyer,
if the plaintiff had had one, would doubtless have
wanted to explore the possibility that the two
Andersons are related)—had come from one of the cells
that were supposed to be locked but not a cell that de-
fendant Anderson had noted on her log as not being
securely locked. Another prisoner in the supposedly
locked-down row declared that he, too, had been out
of his cell and in the dayroom during the attack.
  The district judge ruled that even if it was true that
the defendant had “failed to protect [the plaintiff] by
allowing some detainees out of their cells that shouldn’t
have been out; failed to make sure lights were working
No. 11-2999                                               5

and on in the corridor area; and [had left] her post
for about 15-20 minutes,” these facts would establish
merely negligence, and not that Anderson had been
“aware of a specific, impending, and substantial threat
to [the plaintiff’s] safety.” And so the plaintiff had
failed to make a prima facie case that Anderson had
been deliberately indifferent to his safety.
  The judge dismissed the suit prematurely. The pur-
pose of limiting the number of prisoners allowed in
the dayroom at one time is security—understandably so,
given that they are all believed to be dangerous, as other-
wise they wouldn’t be in a maximum-security tier. The
fact that one of the cells in the row of cells that were
supposed to be locked was unlocked was re-
corded—twice—by Anderson herself as creating a “secu-
rity risk.” For her nevertheless to have let out of their
cells several of the inmates who were supposed to
remain locked up, and let them congregate in a
darkened corridor, and then to leave her post, with the
result that no guard was present to observe more than
20 (we don’t know how many more than 20) maximum-
security prisoners milling about, could give rise to an
inference of conscious disregard of a significant risk of
violence (the test established by Farmer v. Brennan, 511
U.S. 825 (1970)), as in the similar case of Pavlick v.
Mifflin, 90 F.3d 205, 208-09 (7th Cir. 1996). It was fear of
violence that had motivated the rule forbidding the
prisoners in the two rows to mingle in the dayroom,
and the likelihood of violence was further amplified by
the sole guard’s leaving her post, so that the prisoners
knew that no one in authority was watching them—and
6                                              No. 11-2999

moreover leaving her post with the corridor lights out,
so that the improperly released prisoners, armed with
shanks, could congregate unobserved in the corridor.
  We said that a jury could draw an inference of delib-
erate indifference from the facts that we’ve recited (if
they are proved at trial), not that it would have to. The
plaintiff has, however, raised a triable issue, and so
the case must be remanded for a trial. And not just for
a trial. The plaintiff argues compellingly that he needed a
lawyer to help him develop his case. We must decide
whether the judge erred in refusing to try to recruit
a lawyer for him.
   The plaintiff explained to the judge that he had
little education and no knowledge of law or medicine,
that he had tried without success to find a lawyer to
represent him, and that now, incarcerated in a prison
300 miles from Chicago—a prison moreover that experi-
enced frequent lockdowns while he was attempting
to prepare his case—there was no way he could obtain
Cook County jail records, depose witnesses (notably
the defendant), or otherwise prepare the case. Maybe
he could have conducted depositions from afar by
video, but no evidence concerning the feasibility of
that approach has been presented; nor has the defendant
argued that it would be feasible.
  The judge thought this a simple case, which the
plaintiff despite his handicaps of distance and lack of
skills and knowledge could readily handle without a
lawyer’s aid. The first link in this chain of thought was
correct, but not the second. The case is not analytically
No. 11-2999                                                 7

complex, but its sound resolution depends on evidence
to which the plaintiff in his distant lockup has no
access; and a plaintiff’s inability to investigate crucial
facts by virtue of his being a prisoner or of the remote-
ness of the prison from essential evidence is a familiar
ground for regarding counsel as indispensable to the
effective prosecution of the case. See Navejar v. Iyiola,
No. 12-1182, 2013 WL 2321349, at *5 (7th Cir. May 29, 2013)
(per curiam); Santiago v. Walls, 599 F.3d 749, 766 (7th Cir.
2010); Montgomery v. Pinchak, 294 F.3d 492, 501-04 (3d Cir.
2002); Hendricks v. Coughlin, 114 F.3d 390, 394-95 (2d Cir.
1997); Rayes v. Johnson, 969 F.2d 700, 703-04 (8th Cir. 1992);
Whisenant v. Yuam, 739 F.2d 160, 163 (4th Cir. 1984). We
acknowledge that our decision in Zarnes v. Rhodes, 64
F.3d 285 (7th Cir. 1995), leans the other way. It affirmed
the denial of appointment of counsel even though, just
as in this case, the plaintiff was imprisoned (in Califor-
nia) far from where she’d been assaulted (Illinois).
But the district judge had found that she’d been able
to investigate the facts adequately despite the distance,
and although we were skeptical we didn’t think the
judge had committed clear error that would justify our
rejecting the finding. Moreover, the case had been dis-
missed on a Rule 12(b)(6) motion, and in reversing (in
part) and remanding we suggested that with the case
now about to move beyond the Rule 12(b)(6) stage the
judge should give serious consideration to obtaining
counsel for the prisoner. See Montgomery v. Pinchak,
supra, 294 F.3d at 501-06; Tabron v. Grace, 6 F.3d 147, 156-57
(3d Cir. 1993).
  The prisoner plaintiff in this case, denied assistance
of counsel, needed to, but couldn’t, depose the defendant
8                                            No. 11-2999

in order to explore the reason for her having left her
post, why she recorded the fact that a cell supposed to
be locked was not securely locked as a “security risk,”
and the apparent contradiction between her denial of
leaving her post and her denial of witnessing an attack
unfolding only a short distance in front of her. Also
missing are a diagram indicating the position of the de-
fendant’s duty station in relation to, and its distance
from, the site of the attack; jail records; and testimony
of jail staff concerning the reasons for not allowing all
the prisoners in the tier to use the dayroom at the
same time.
  Unanswered questions abound. Had there been a
time when all the prisoners in the tier had been allowed
to mingle in the dayroom? If so, had there been
violence, which the rule permitting only half the
prisoners to be in the dayroom at the same time had
been adopted to prevent from recurring? How frequently
under the current rule of separation (though flouted
when the attack occurred) do prisoners from the two
rows mingle in the dayroom, and with what conse-
quences? Did the defendant know that just a few weeks
earlier the plaintiff’s cellmate had been assaulted and
stabbed in the dayroom and that according to
him prisoners from the supposedly locked-down side
of the tier had been in the dayroom at the time? And
how, by the way, are prisoners assigned to one row or
the other? Randomly? Or is an attempt made to keep
prisoners who are likely to get into fights with each
other apart? Also useful would be the criminal
records of the prisoners at the time of the attack—just
No. 11-2999                                               9

how dangerous were those prisoners? And finally there
is the question whether the two Andersons are related—
a question the plaintiff can’t investigate on his own.
  All these gaps cry out for evidence that a lawyer could
obtain but the plaintiff could not. The judge should
have realized this and tried to get him a lawyer. Navejar
v. Iyiola, supra, 2013 WL 2321349, at *5; Santiago v. Walls,
supra, 599 F.3d at 762-65; Pruitt v. Mote, 503 F.3d 647,
660 (7th Cir. 2007) (en banc); Montgomery v. Pinchak,
supra, 294 F.3d at 503; Hendricks v. Coughlin, supra, 114
F.3d at 394-95.
  Maybe the evidence that a lawyer would unearth
would support the defendant rather than the plaintiff.
But that can’t be assumed at this stage. Because there’s
no basis for assuming that the plaintiff’s case lacks
merit, the grant of summary judgment in favor of the
defendant must be reversed and the district court
directed to try to recruit counsel for the plaintiff. 28
U.S.C. § 1915(e)(1). That won’t be hard to do if the
lawyer who represented the plaintiff in this appeal is
able and willing to handle the case on remand.
Finally, Circuit Rule 36 shall apply.
                                 R EVERSED AND R EMANDED.




                           7-30-13
