                                  In the

    United States Court of Appeals
                   For the Seventh Circuit
                       ____________________
No. 17-1345
FREDRICK WALKER,
                                                     Plaintiff-Appellant,
                                    v.

TIMOTHY PRICE, et al.,
                                                  Defendants-Appellees.
                       ____________________

          Appeal from the United States District Court for the
                      Central District of Illinois.
          No. 1:14–cv–01343–HAB — Harold A. Baker, Judge.
                       ____________________

     ARGUED MAY 24, 2018 — DECIDED AUGUST 20, 2018
                ____________________

   Before MANION and BARRETT, Circuit Judges, and
GETTLEMAN, District Judge.*
    BARRETT, Circuit Judge. A litigant in a civil case has neither
a statutory nor a constitutional right to counsel. He can, how-
ever, ask the court to recruit counsel to represent him on a pro
bono basis. When the court receives such a request from an


   * Of the Northern District of Illinois, sitting by designation.
2                                                    No. 17-1345

indigent plaintiﬀ, it must determine whether the plaintiﬀ has
made a reasonable attempt to obtain counsel on his own and
whether, given the diﬃculty of the case, the plaintiﬀ is com-
petent to litigate it himself. Pruitt v. Mote, 503 F.3d 647, 649
(7th Cir. 2007) (en banc). If the answer to the first question is
yes and the answer to the second is no, then the court must
seek counsel to represent the plaintiﬀ.
    This case involves the district court’s assessment of the
second question. Fredrick Walker, an inmate, brought a civil-
rights suit against several prison oﬃcers. Over the course of
the litigation, Walker asked the court six times to recruit a vol-
unteer lawyer to represent him. The court acted within its dis-
cretion when it denied his initial motions. But it abused its
discretion when it denied the sixth. At that point, Walker was
facing not only a jury trial, but a jury trial by videoconference.
That substantially increased the diﬃculty of his case, despite
the simplicity of his claims. Moreover, the basic competence
that Walker had demonstrated during the pretrial phase did
not necessarily reflect his ability to handle a video trial en-
tirely on his own. Trying a case requires additional skills, and
Walker had managed the pretrial phase with the help of a jail-
house lawyer who had since been transferred to another
prison. Because the landscape had changed at this late stage
of the litigation, the court should have granted Walker’s mo-
tion to recruit counsel.
                                I.
   Fredrick Walker is a prisoner at the Pontiac Correctional
Center, a maximum-security prison in Pontiac, Illinois. On
August 21, 2013, Timothy Price, the prison oﬃcer in charge of
delivering the inmates’ breakfast, brought Walker his meal.
The parties dispute what happened next.
No. 17-1345                                                   3

    By Walker’s account, Price tried to give him a breakfast
tray that had fallen on the floor. When Walker requested a
fresh meal, Price refused. Walker complained loudly, and in
response, two other prison oﬃcers, Jeﬀrey Stahl and Glendal
French, moved him from his cell to a more restrictive floor.
Walker claims that Stahl and French brutally assaulted him
during the move, seriously injuring his face and foot. John
Hudson and Marlon Minter, two of his fellow inmates, testi-
fied that they could see Walker’s swollen face as he was es-
corted to his new cell. According to Walker, his repeated re-
quests for medical care went unanswered until Mark Spencer,
a paralegal at Pontiac, finally relayed his request to the medi-
cal unit. Walker was prescribed Motrin for his injuries.
    The prison oﬃcers give a diﬀerent account. Price does not
remember the alleged breakfast tray incident. And Stahl and
French claim they moved Walker to a more restrictive cell be-
cause he began kicking his cell door. They say that the transfer
was uneventful, and prison oﬃcers present at the time of the
alleged assault testified that neither Stahl nor French used ex-
cessive force. All three defendants deny knowing that Walker
had asked for medical care.
    A year later, with the help of Marlon Minter—a fellow in-
mate who acted as his “jailhouse lawyer”—Walker filed a pro
se complaint in federal district court under 42 U.S.C. § 1983.
He alleged that Oﬃcers Price, French, and Stahl violated his
Eighth Amendment rights by using excessive force, failing to
intervene to stop the use of excessive force, and exhibiting de-
liberate indiﬀerence to Walker’s need for medical attention.
When he filed his complaint, Walker asked the court to recruit
a volunteer lawyer to represent him. Walker stated that his
own attempts to recruit pro bono counsel had failed and that
4                                                  No. 17-1345

he needed volunteer counsel because he had “numerous men-
tal health issues,” limited access to the law library, and no
money to hire counsel. He also claimed that his reliance on
Minter demonstrated his need for representation. The magis-
trate judge assigned to the case denied Walker’s motion be-
cause the case was simple and Walker had personal
knowledge of the events. In addition, Walker had prior litiga-
tion experience, and his complaint reflected both competent
writing skills and knowledge of the relevant law and proce-
dure.
     After the defendants had answered the complaint, Walker
filed a second motion to recruit counsel. Like the first, it was
drafted with Minter’s help. Walker repeated the reasons iden-
tified in his first motion: his limited mental capacity, lack of
access to legal resources, and reliance on Minter. He added
that his case was legally and factually complex, that it pre-
sented nuanced credibility issues, and that his deliberate in-
diﬀerence claim might require expert medical testimony.
Walker’s motion also included evidence of his cognitive limi-
tations—he noted that he had an IQ of 76 and a grade-school
level of comprehension. In response to this new information,
the magistrate judge ordered the defendants to file Walker’s
Adult Basic Education scores. They never did.
   A little over two months later, Walker filed his third re-
quest for recruited counsel. He complained that the defend-
ants had not responded to his discovery requests. Their fail-
ure to comply, he argued, was yet another reason why he
needed the court to help him find a lawyer. The magistrate
judge denied Walker’s second and third motions on the same
day. He recognized Walker’s “cognitive deficits,” but they did
No. 17-1345                                                    5

not change his conclusion that Walker was competent to con-
tinue pro se. He reiterated that Walker’s claims were simple
and that his filings had been “relatively well written, demon-
strating knowledge of the law and the relevant facts.” And
while he acknowledged Walker’s reliance on Minter’s help in
drafting his filings, he concluded: “that alone does not neces-
sarily mean Plaintiﬀ is unable to proceed pro se.” The magis-
trate judge directed the defendants to respond to Walker’s
discovery requests, which they finally did.
    Walker filed his fourth request to recruit counsel several
months later. He asked the district judge to reconsider the ear-
lier motions that the magistrate judge had denied. He restated
his earlier points and added more emphasis to the claim that
his dependence on Minter showed his inability to litigate
without assistance. Two days after the motion was filed, the
district judge denied his motion for reconsideration “for the
reasons stated” in the magistrate judge’s earlier order deny-
ing Walker’s second and third motions to recruit counsel. To
these reasons, the district judge added a list of six earlier pro
se cases filed by Walker as examples of his competence to lit-
igate pro se.
    A month later, Walker filed his fifth motion to recruit
counsel. In this one, Walker complained that his earlier argu-
ments were being “overlooked by the court.” He underscored
his cognitive limitations and the complexity of his case. In her
response, the judge again agreed with the magistrate judge’s
assessment of Walker’s ability. She noted that Walker “ap-
pear[ed] competent to proceed pro se” because he had per-
formed well so far, had some prior federal civil litigation ex-
perience, and was litigating straightforward claims. But be-
cause the case was going to trial, the judge said that she would
6                                                  No. 17-1345

nonetheless “attempt to recruit pro bono counsel to represent
Plaintiﬀ at trial.” She warned him, however, that searching for
pro bono counsel was “becoming increasingly diﬃcult.”
   In the summer of 2016, Walker—through his own eﬀorts—
found a lawyer willing to represent him pro bono. That rep-
resentation, however, didn’t last long. Citing irreconcilable
diﬀerences, his lawyer withdrew within minutes of his ap-
pointment.
    Walker’s case was now approaching trial, and the court or-
dered the parties to submit briefs discussing whether the trial
should be held over videoconference. All of the defendants
supported holding the trial by videoconference because trans-
porting Walker to the courthouse would be costly and a po-
tential security risk. They noted that Walker was serving a life
sentence for murder, aggravated criminal sexual assault with
a weapon, and home invasion; on top of that, he had racked
up an extensive prison disciplinary record during his incar-
ceration at Pontiac. Walker objected that trying the case by
video would impede his access to the court. But given the se-
curity risks posed by Walker’s “classification as a high escape
risk, high aggression, and maximum security level,” the court
decided to hold the trial by video. The court opined that the
simplicity of Walker’s claims and the presence of a large video
screen would minimize any prejudice to Walker.
    A month later, Walker filed his sixth and final motion to
recruit counsel. Walker was now preparing his filings on his
own, because Minter, his jailhouse lawyer, had been trans-
ferred to another prison. As a result, this motion is noticeably
less articulate. In support of his request, Walker complained
that he was unable to prepare his final pretrial filings because
he lacked access to legal materials. According to Walker, “The
No. 17-1345                                                    7

plaintiff’s legal material’s that he was using to draft his pre-
trial material’s was stolen from the plaintiff by pontiac correc-
tional center official’s to prevent the plaintiff from proceeding
in his case against the Defendants.”
    In December 2016, the court denied Walker’s final motion
to recruit counsel. In a text order, it stated:
       Plaintiﬀ’s motion to continue and motion to ap-
       point counsel is denied. Plaintiﬀ has significant
       litigation experience. His pleadings demon-
       strate that he is competent to proceed pro se, as
       did the Court’s observations of him when he ap-
       peared by video conference at several status
       hearings. The claims (excessive force and failure
       to obtain medical treatment) are relatively sim-
       ple. Plaintiﬀ already has personal knowledge of
       many of the facts underlying his claim. On this
       record, Plaintiﬀ appears competent to proceed
       pro se in light of the straightforward nature of
       his claim.
At that same time, in another procedural twist, Walker’s case
was transferred to a diﬀerent judge for trial due to scheduling
conflicts. The record does not reflect whether the new court-
room would also have the benefit of a large video screen for
trial.
    The trial began in February of 2017. Walker, the defend-
ants, and the witnesses appeared by video and, in one in-
stance, Minter gave follow-up testimony by phone. The de-
fendants’ counsel was with them at the prison. The video trial
suﬀered from some predictable limitations. At times, the par-
ticipants had diﬃculty hearing or seeing each other. There
8                                                    No. 17-1345

were also occasional hiccups in presenting exhibits and coor-
dinating the examination of witnesses. At the end of the two-
day trial, the jury returned a verdict for the defendants on all
claims.
    Walker, who is represented by recruited counsel on ap-
peal, claims the district court made three errors. First, he ar-
gues that the district court’s denial of his motions to recruit
counsel was an abuse of discretion that prejudiced him. Sec-
ond, Walker argues the district court abused its discretion in
allowing his trial to proceed by videoconference. Finally,
Walker argues that the cumulative eﬀect of the court’s errors
requires that we grant him a new trial.
                               II.
    Litigants in federal civil cases do not have a constitutional
or statutory right to court-appointed counsel. Pruitt v. Mote,
503 F.3d 647, 649 (7th Cir. 2007) (en banc). An indigent litigant,
however, may ask the court to recruit a volunteer attorney to
provide pro bono representation. 28 U.S.C. § 1915(e)(1). Two
questions guide a court’s discretionary decision whether to
recruit counsel: (1) “has the indigent plaintiﬀ made a reason-
able attempt to obtain counsel or been eﬀectively precluded
from doing so,” and (2) “given the diﬃculty of the case, does
the plaintiﬀ appear competent to litigate it himself?” Id. at 654.
   Walker claims the district court erred when it answered
“no” to the second Pruitt question, because it underestimated
the diﬃculty of his case and overestimated his ability to liti-
gate it. We think that the court acted within its discretion
when it denied Walker’s initial requests for recruited counsel.
But when Walker made his sixth request, he was facing not
only a jury trial—rare enough for a pro se litigant—but a trial
No. 17-1345                                                                9

by videoconference. And he had also recently lost the assis-
tance of his jailhouse lawyer, which meant that his prior fil-
ings were not necessarily reflective of his competence to pro-
ceed alone. These factors changed the calculus, and we agree
with Walker that the district court should have granted his
last motion to recruit counsel.1
    We review the district court’s denial of a pro se plaintiﬀ’s
motion to recruit counsel for abuse of discretion. Id. at 658. A
district court abuses its discretion when “(1) the record con-
tains 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 errone-
ous factual findings; or (4) the decision clearly appears arbi-
trary.” Id. To this end, we ask “not whether we would have
recruited a volunteer lawyer in the circumstances, but
whether the district court applied the correct legal standard
and reached a reasonable decision based on facts supported
by the record.” Id.
                                     A.
   When it denied Walker’s sixth motion to recruit counsel,
the district court considered the simplicity of Walker’s sub-
stantive claims, but not the diﬃculty of trying them before a



    1
     We stress that the district court did not have a responsibility to sua
sponte re-evaluate whether it should try to recruit counsel for Walker.
Pruitt, 503 F.3d at 658 (“[T]here is neither a statutory nor a constitutional
duty to monitor whether an indigent litigant is competently litigating his
claims after a § 1915(e)(1) request has been denied.”). The court’s duty to
revisit the § 1915(e)(1) calculus arose only because Walker filed a motion
renewing his request.
10                                                    No. 17-1345

jury. The Pruitt standard, however, requires the court to ac-
count for both, because both aﬀect “the diﬃculty of the case.”
Pruitt, 503 F.3d at 655 (“The question is whether the plaintiﬀ
appears competent to litigate his own claims, given their de-
gree of diﬃculty, and this includes the tasks that normally at-
tend litigation.”). And while Walker’s claims were straightfor-
ward, conducting a trial by videoconference was not.
    We have emphasized that the assistance of counsel be-
comes increasingly important as litigation enters its later
stages. Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015) (“Tak-
ing depositions, conducting witness examinations, applying
the rules of evidence, and making opening statements are be-
yond the ability of most pro se litigants to successfully carry
out.”); see also Miller v. Campanella, 794 F.3d 878, 880 (7th Cir.
2015); James v. Eli, 889 F.3d 320, 327 (7th Cir. 2018). And when
Walker filed his sixth motion to recruit counsel, he was facing
an event that most civil litigants do not: a jury trial. Even if his
earlier filings had passed muster, trying a case is more diﬃ-
cult than drafting minimally coherent documents. Perez, 792
F.3d at 785 (“District courts abuse their discretion where they
fail to consider the complexities of advanced-stage litigation
activities and whether a litigant is capable of handling
them.”). Trial involves conducting voir dire, delivering open-
ing and closing statements, examining witnesses, and follow-
ing the rules of evidence. These are all complicated tasks.
   And Walker faced an additional hurdle: his case didn’t
simply go to trial; it went to trial over videoconference. When
the court denied Walker’s sixth motion, it had already de-
cided to hold the trial by video. That meant that the judge and
jury would be together in one room, and the parties, lawyers,
and witnesses would appear on screen. Walker would have to
No. 17-1345                                                    11

stay on track despite inevitable technological hiccups. More-
over, a video trial would make it harder to eﬀectively try a
case that rested almost exclusively on credibility issues, be-
cause Walker would have to compensate for the loss of the
physical presence of the parties, the witnesses, the jurors, and
the judge. Among other things, he would have to convince the
jurors to believe him, and not the defendants, even though
screens would limit their ability to observe body language.
    In evaluating the diﬃculty of the case, the court repeatedly
stressed the simplicity of Walker’s claims. To be sure,
Walker’s claims were uncomplicated, but two factors com-
bined to make the case diﬃcult: it went to trial and he had to
try it from behind a camera. By failing to adequately account
for these factors, the district court abused its discretion. See
James, 889 F.3d at 327 (“[W]e have recognized that certain cir-
cumstances demand particular judicial consideration.”).
    We pause to add one final note regarding the complexity
of Walker’s case as it relates to the Pruitt analysis. In Walker’s
view, the court should have recruited counsel for him after his
first motion, largely because his claims involve medical exper-
tise and state-of-mind issues. Both of these arguments find
some support in our case law. Perez, 792 F.3d at 784 (observing
that it may be best to recruit counsel when the plaintiﬀ “al-
leges an objectively serious medical condition”); Bracey v.
Grondin, 712 F.3d 1012, 1017 (7th Cir. 2013) (observing that
state-of-mind claims heighten the complexity of a case); San-
tiago v. Walls, 599 F.3d 749, 761 (7th Cir. 2010) (noting that
state-of-mind claims are often diﬃcult for pro se plaintiﬀs).
But “we have resisted laying down categorical rules regard-
ing recruitment of counsel in particular types of cases.” Pruitt,
503 F.3d at 656. Doing so risks “finding, as a practical matter,
12                                                   No. 17-1345

a presumptive right to counsel in some categories of cases”
even though we have “consistently denied that such a right,
or even a presumption, exists.” McCaa v Hamilton, 893 F.3d
1027, 1037 (7th Cir. 2018) (Hamilton, J., concurring).
     Accepting Walker’s argument would mean accepting “as
a practical matter, a presumptive right to counsel in some cat-
egories of cases.” And while our precedent requires generos-
ity in considering requests for recruited counsel, it does not
go as far as Walker proposes. The district court correctly noted
that none of his claims was particularly complex; each turned
simply on which witnesses were to be believed. And while it
is true that medical claims often require nuanced expert testi-
mony about the standard of care, Walker’s claim did not. He
argued that prison oﬃcers refused to respond to his requests
for medical care, not that the care he received was substand-
ard. See Henderson v. Ghosh, 755 F.3d 559, 566 (7th Cir. 2014).
Such a claim is not categorically beyond the capacity of a pro
se plaintiﬀ. The diﬃculty in Walker’s case flowed not from the
substance of his claims, but from its procedural posture: the
video trial introduced complexity that had not been there be-
fore. That is the factor on which our decision turns.
                                 B.
    The second question from Pruitt directs the district court
to examine not only the diﬃculty of the case, but the pro se
plaintiﬀ’s competency to litigate that particular case himself.
Pruitt, 503 F.3d at 654. Because this inquiry is “intertwined”
with analyzing the diﬃculty of the case, id., the district court’s
flawed application of the proper legal standard to that aspect
of the inquiry spills over to the analysis of Walker’s capacity
to litigate his videoconference trial. There are “no fixed re-
quirements” for determining Walker’s capability to litigate
No. 17-1345                                                    13

his own case, but we consider his “literacy, communication
skills, education level, and litigation experience” as well as
any available evidence of his “intellectual capacity and psy-
chological history” as these relate to litigating his case. Id. at
655.
    The court acknowledged Walker’s mental and psycholog-
ical limitations, but it did not consider how they would hand-
icap his performance during the trial, as opposed to the pre-
trial phase. Walker has an elementary-level education and an
IQ of only 76. On top of this, Walker has a history of mental
and psychological health issues. And although the court
asked the defendants to submit Walker’s Adult Basic Educa-
tion scores to the court after Walker’s second request to recruit
counsel, the defendants never complied. Not every cognitive
limitation will require the district court to recruit a lawyer,
but the court should have considered how Walker’s mental
health history would aﬀect his ability to think on his feet at
trial. Walker may have been capable of writing intelligible
documents, but those do not require a quick, oral response in
front of a jury.
    Walker’s prior litigation experience, while relevant, did
not include the performance of the tasks most relevant here:
examination of witnesses, introduction of evidence, and the
delivery of opening and closing arguments to a jury. To be
sure, this case is not Walker’s first trip to federal court, and
the district court was right to account for the fact that Walker
had previously filed six other pro se civil cases. But that liti-
gation experience bears on his ability to identify relevant legal
arguments and facts, and much more is required of a litigant
who must fully develop and present his case in (or virtually
in) a courtroom.
14                                                   No. 17-1345

    In finding Walker competent to litigate this case on his
own, the court relied on his performance during the pretrial
phase of the litigation. Like Walker’s prior litigation experi-
ence, his pretrial performance did not necessarily reflect his
ability to handle a trial. More importantly, however, it did not
reflect what he could do on his own. From the beginning,
Walker relied heavily on Minter to operate as his jailhouse
lawyer. In fact, in the course of denying one of Walker’s earlier
motions, the court rejected Walker’s argument that his de-
pendence on Minter demonstrated his need for recruited
counsel. By the time Walker filed his sixth motion to recruit
counsel, however, his case was headed to trial and Minter had
been transferred to another prison. At this point, the court
needed to evaluate Walker’s capacity independent of any un-
oﬃcial or jailhouse assistance he may have received. See
McCaa, 893 F.3d at 1033 (When a litigant’s “competency may
not have been entirely his own … courts must ‘specifically ex-
amine[]’ a plaintiﬀ’s ‘personal ability to litigate the case, ver-
sus the ability of the “jailhouse lawyer”’ who assisted the
plaintiﬀ.” (quoting Dewitt v. Corizon, Inc., 760 F.3d 654, 658
(7th Cir. 2014)). Yet in denying Walker’s sixth motion to re-
cruit counsel, the court cited the quality of the filings Walker
had submitted with Minter’s help. It is noteworthy that
Walker’s sixth motion for recruited counsel—the first submit-
ted without Minter’s help—was substantially less articulate
than the prior filings on which the court relied. That itself in-
dicated that the earlier work in the case was an imperfect
measure of Walker’s capacity.
    Finally, the court took Walker’s appearance by video at
pretrial status hearings as evidence that Walker could handle
a trial by videoconference. The pretrial status hearings, how-
ever, diﬀered significantly from a trial. They involved only a
No. 17-1345                                                    15

few people: the judge, the defendants’ lawyers, and Walker.
They did not require Walker to prepare opening and closing
statements, develop any direct lines of questioning, or cross-
examine witnesses. And they dealt largely with administra-
tive matters rather than substance. While Walker’s perfor-
mance at these hearings was relevant data about his ability to
handle himself, the court placed too much weight on it.
                               C.
    The district court erred when it denied Walker’s sixth re-
quest that it recruit counsel, but Walker is only entitled to re-
lief if that error prejudiced him. To show prejudice, a litigant
need only show that “there is a reasonable likelihood that the
presence of counsel would have made a diﬀerence in the out-
come of the litigation.” Pruitt, 503 F.3d at 659.
    In Pruitt, we found that the pro se plaintiﬀ’s “inept trial
performance” showed that counsel would have helped him
make his case to the jury. Id. at 661. We held that “[a]t the very
least, counsel could have helped Pruitt present his story to the
jury in a more organized and coherent manner.” Id. While
Walker’s opening statement and his own testimony were
fairly easy to follow, he ran into diﬃculty when he examined
and cross-examined witnesses. The other participants period-
ically had diﬃculty hearing him. The questions he asked of-
ten made little sense; he had trouble laying foundations for
exhibits he wanted to enter into evidence; and he struggled to
draw out inconsistencies in the testimony of the defendants
and their witnesses. At one point, Walker objected that one
witness was coaching another. The judge replied, “I can’t see
or hear that, so I don’t know what’s going on.” The witness
denied being coached, and Walker had no lawyer to press the
point.
16                                                            No. 17-1345

    Like the case in Pruitt, Walker’s case was a swearing con-
test. Id. at 660–61. His task was to highlight the strength of his
own account and impeach the credibility of the defendants.
His eﬀort was incoherent, and at the very least, the presence
of counsel would have ensured a fair presentation of Walker’s
case to the jury. We therefore conclude that Walker was prej-
udiced by the district court’s refusal to try to recruit counsel
for him.2
                                     III.
    Because it might arise on remand, we briefly address
Walker’s argument that the district court erred by requiring
him to proceed by video rather than in open court. In Thornton
v. Snyder, we held that a district court has discretion to hold a
video trial when a plaintiﬀ presents serious security concerns.
428 F.3d 690, 697–98 (7th Cir. 2005). Given our conclusion that
the court should have recruited counsel for Walker, we need
not decide whether it abused its discretion in proceeding by
videoconference. But we do not want to leave the impression
that we are second-guessing the court’s decision to do so. The
error here was the court’s failure to account for Walker’s ca-
pacity to conduct a video trial in considering his sixth motion



     2
     We need not address what would have happened if the district court
had tried and failed to recruit counsel for Walker. The district court’s error
was that it abused its discretion when it denied Walker’s sixth motion to
recruit counsel. Walker was entitled to the district court’s assistance in
finding a lawyer, but he had no constitutional or statutory right to have
representation in his civil case. Pruitt, 503 F.3d at 649; see also Wilborn v.
Ealey, 881 F.3d 998, 1008 (7th Cir. 2018) (noting that § 1915(e)(1) does not
“mean that the court has an indefinite commitment to search until a vol-
unteer is found”).
No. 17-1345                                                17

to recruit counsel. On remand, the court should not under-
stand our opinion to dictate whether it conducts any new trial
live or by videoconference.
                             ***
    We VACATE the judgment and REMAND this case for
further proceedings consistent with this opinion.
