                         NONPRECEDENTIAL DISPOSITION
                          To be cited only in accordance with
                                   Fed. R. App. P. 32.1



                United States Court of Appeals
                                For the Seventh Circuit
                                Chicago, Illinois 60604

                                Submitted June 27, 2014*
                                  Decided July 8, 2014

                                         Before

                             DIANE P. WOOD, Chief Judge

                             JOEL M. FLAUM, Circuit Judge

                             DIANE S. SYKES, Circuit Judge

No. 13-3290
                                                  Appeal from the
CARL BARRETT,                                     United States District Court for the
     Plaintiff-Appellant,                         Western District of Wisconsin.

      v.                                          No. 12-cv-24-bbc

LAVERNE WALLACE, et al.,                          Barbara B. Crabb,
    Defendants-Appellees.                         Judge.

                                       ORDER

       On several occasions Carl Barrett, a Wisconsin inmate, intentionally overdosed
on prescribed medications. In this civil-rights suit, Barrett alleges that prison guards
used excessive force in removing him from his cell after two of these incidents and that
they failed to prevent another. One of Barrett’s claims was submitted to a jury, which
found for the defendants. In this appeal Barrett argues that the district court abused its
discretion in not recruiting a lawyer to assist him. We disagree and affirm the judgment.



      *
         After examining the briefs and record, we have concluded that oral argument is
unnecessary. Thus, the appeal is submitted on the briefs and record. See FED. R. APP.
P. 34(a)(2)(C).
No. 13-3290                                                                         Page 2

        In September 2010, when Barrett was housed at the Wisconsin Secure Program
Facility, he swallowed approximately 70 pills, including pain relievers and a
prescription sleep aid. During the suicide attempt, a prison psychologist was standing
outside his cell trying to persuade him not to take the pills. Several guards, including
defendant William Brown, ordered Barrett to leave his cell, and when he refused, they
used pepper spray to force compliance with their order. Barrett was then taken to a
hospital for treatment. The following month Barrett swallowed another stash of
sleeping pills after warning guards, including defendants Laverne Wallace and Shawn
Gallinger, that he was suicidal. Barrett had accumulated those pills by pretending to
swallow them when medication was administered. Again he was hospitalized. He made
a third suicide attempt, much like the first two, in January 2011.

        Barrett then brought this lawsuit alleging that Brown used excessive force in
removing him from his cell and that Wallace and Gallinger disregarded his suicide
threat and pleas for help. Indeed, Barrett alleged, Gallinger goaded him to swallow the
pills. The guards’ actions, he claimed, violated the Eighth Amendment. He further
claimed that the Department of Corrections violated the Americans with Disabilities
Act, 42 U.S.C. §§ 12131–12133, by not adequately treating his unspecified mental
impairments. (Barrett also raised other claims, none of them relevant to this appeal.) At
screening, see 28 U.S.C. § 1915A, the district court concluded that Barrett had not stated
an ADA claim because he did not allege that he was denied treatment because of a
disability. The court allowed the Eighth Amendment claims to proceed.

        Shortly after filing his complaint, Barrett twice requested that counsel be
recruited to assist him. In the first request, he said he needed help understanding the
legal issues, presenting evidence at trial, and cross-examining witnesses. He also
contended that unspecified mental-health issues would hinder his ability to litigate his
case. He submitted a psychiatric report showing that he suffered from a sleep disorder
and was possibly depressed but was malingering psychotic symptoms. In denying the
motion, the district judge reasoned that Barrett’s allegations were “fairly
straightforward,” that she had explained the law governing his claims and would guide
him on court procedures and gathering evidence, that discussing the need for a lawyer
at trial was premature, and that Barrett had not shown that his mental-health issues
were affecting his ability to litigate.

       In his second request, Barrett asserted that counsel was necessary because his
“jailhouse lawyer” was too busy to continue helping him. The court reasoned, however,
that Barrett still had not shown that mental-health issues were impeding his efforts or
No. 13-3290                                                                            Page 3

that he could not gather and present evidence himself. The court added that Barrett had
been given instructions tailored for pro se litigants.

       The defendants then moved for summary judgment. The district court granted
the motion in part, concluding that judgment for the defendants was appropriate
insofar as Barrett asserted that any use of pepper spray was excessive. But because
Barrett averred that he was struck with a projectile and subjected to a second burst of
pepper spray while unconscious, the court allowed this aspect of his excessive-force
claim to proceed. The court also concluded that Barrett had enough evidence for a jury
to find that the defendants had ignored his second suicide threat.

        Barrett again requested counsel. He said he was “still receiving psychological
treatment” and that his jailhouse lawyer could not assist him at trial. The court
acknowledged the difficulty in assessing Barrett’s capabilities given his reliance on
another inmate to prepare his filings, but noted that Barrett still had not shown that his
mental health was impeding his ability to litigate. Furthermore, the court reasoned, the
lawsuit was not “particularly complex,” and Barrett’s principal task at trial would be to
testify and elicit testimony from inmate witnesses about the incidents.

        At trial Barrett’s own testimony was his only evidence about the force used
during the September 2010 incident. Defendant Brown countered with a videorecording
of that cell extraction. Barrett and another inmate testified about the response of
Wallace and Gallinger to the plaintiff’s October suicide threat. Wallace and Gallinger
also testified. The district court granted Brown’s motion for judgment as a matter of law
on the excessive-force claim, and the jury found for Wallace and Gallinger.

        On appeal Barrett makes a single argument: that the district court abused its
discretion in not recruiting a lawyer to assist him. He says in his brief that counsel’s
assistance was needed to litigate his ADA claims and his Eighth Amendment claims
arising from the drug overdoses in September and October 2010. Barrett contends that
these claims were complex and he was relying on fellow inmates for help, and thus the
district court improperly concluded that he could represent himself.

       The district court has broad discretion in ruling on requests for pro bono counsel;
we will affirm as long as the court applied the appropriate legal standard and
thoughtfully examined the difficulty of the case and the plaintiff’s ability to litigate it on
his own. See Pruitt v. Mote, 503 F.3d 647, 655 (7th Cir. 2007) (en banc). The district judge
did that here. She noted that Barrett’s claims concerning the drug overdoses were
No. 13-3290                                                                               Page 4

straightforward and involved elementary factual disputes. She also noted that Barrett
had merely asserted—but never shown—that mental-health issues impaired his ability
to represent himself. See Olson v. Morgan, 750 F.3d 708, 711–12 (7th Cir. 2014) (upholding
order denying motion to recruit counsel where plaintiff had not explained why
mental-health “conditions would prevent him from coherently presenting his case”).

        Moreover, it’s clear to us that assistance of counsel would not have made a
difference here. See Pruitt, 503 F.3d at 659 (holding that a denial of a request for pro
bono counsel is not reversible unless the plaintiff shows prejudice). Barrett argues that
counsel would have found an expert to further his claim of disability discrimination, but
that claim—as the district court told him from the beginning—was a nonstarter because
Barrett did not assert that he was denied adequate treatment because of his mental
illness. See 29 U.S.C. § 794(a); Jaros v. Ill. Dep't of Corr., 684 F.3d 667, 672 (7th Cir. 2012).1

       Nor is it reasonably likely that a lawyer could have bolstered Barrett’s contention
that the use of pepper spray in September 2010 constituted excessive force. Barrett
needed to prove that pepper spray was applied “maliciously and sadistically to cause
harm” rather than in a “good-faith effort” to gain his compliance. See Hudson v.
McMillian, 503 U.S. 1, 6–7 (1992); see also Santiago v. Walls, 599 F.3d 749, 757 (7th Cir.
2010). The videorecording of the cell extraction confirms that pepper spray was used
only because Barrett—who was in need of prompt medical attention after
overdosing—refused to leave his cell. See Soto v. Dickey, 744 F.2d 1260, 1270 (7th Cir.
1984) (explaining that mace is appropriately used when “reasonably necessary to . . .



       1
         To the extent that Barrett sought damages for disability discrimination, the
Supreme Court has not resolved whether states have Eleventh Amendment immunity
from suits for damages arising from conditions that violate the ADA but not the
Fourteenth Amendment. See United States v. Georgia, 546 U.S. 151, 159 (2006); Norfleet v.
Walker, 684 F.3d 688, 690 (7th Cir. 2012); Toeller v. Wis. Dep't of Corr., 461 F.3d 871, 874
(7th Cir. 2006). That said, the Eleventh Amendment was not an obstacle for Barrett
because damages are available against the State of Wisconsin under the Rehabilitation
Act. See Alexander v. Sandoval, 532 U.S. 275, 279–80 (2001); Franklin v. Gwinnett Cnty. Pub.
Sch., 503 U.S. 60, 72–73 (1992); Norfleet, 684 F.3d at 690 (noting that courts should
“analyze a litigant’s claims and not just the legal theories that he propounds”); Jaros,
684 F.3d at 671 (explaining that substantive law governing ADA and Rehabilitation Act
is “the same except that the Rehabilitation Act includes as an additional element the
receipt of federal funds, which all states accept for their prisons”).
No. 13-3290                                                                          Page 5

subdue recalcitrant prisoners”); see also Scott v. Harris, 550 U.S. 372, 378–81 (2007)
(explaining that granting judgment for defendant is appropriate where video discredits
plaintiff’s version of events). And in his own testimony, Barrett backed away from his
allegation that he was struck by a “projectile.”

       Thus, a finding of malicious intent depended on evidence that Brown knew
Barrett to be unconscious rather than uncooperative when he delivered the second burst
of pepper spray. See Abbott v. Sangamon County, Ill., 705 F.3d 706, 727 (7th Cir. 2013)
(discussing “general proposition” that use of pepper spray on a subdued individual is
excessive). There is no evidence suggesting that Brown believed he was unconscious. To
the contrary, the video establishes that Barrett uncovered his cell window after the first
blast of pepper spray and that Brown continued to command him to get up from the
floor and approach the cell door, both of which undercut an inference that Brown
thought that the first burst of pepper spray had subdued Barrett. We have held that
state-of-mind questions are not categorically too difficult for pro se litigants. Olson,
750 F.3d at 712. We see no reason why a lawyer would have changed the outcome here.

       Finally, it is not reasonably likely that counsel would have made a difference in
Barrett’s failure-to-protect claim. To convince the jury that Wallace and Gallinger
violated the Eighth Amendment by failing to stop him from overdosing, Barrett needed
to prove that they were deliberately indifferent to an objectively serious risk of harm.
Farmer v. Brennan, 511 U.S. 825, 834–37 (1994); Cavalieri v. Shepard, 321 F.3d 616, 620 (7th
Cir. 2003). Barrett presented his own testimony, and testimony from a corroborating
witness, cross-examined the defendants, and submitted documentary evidence. Faced
with the parties’ conflicting evidence, however, the jury chose to credit the guards’
version of events. Given Barrett’s competent performance at trial, he was not prejudiced
by the lack of counsel. See Romanelli v. Suliene, 615 F.3d 847, 853 (7th Cir. 2010) (holding
that refusal to recruit counsel did not prejudice plaintiff who testified on his own behalf,
cross-examined witnesses, and introduced exhibits).

                                                                              AFFIRMED.
