                             In the

United States Court of Appeals
               For the Seventh Circuit

No. 12-1644

L ARRY B RACEY,
                                              Plaintiff-Appellant,
                                 v.

JAMES G RONDIN, et al.,
                                           Defendants-Appellees.


           Appeal from the United States District Court
             for the Western District of Wisconsin.
              No. 10-cv-00287—Barbara B. Crabb, Judge.



    A RGUED F EBRUARY 27, 2013—D ECIDED M ARCH 15, 2013




  Before F LAUM, S YKES, and T INDER, Circuit Judges.
  F LAUM, Circuit Judge. Larry Bracey sued several correc-
tions officers for the use of excessive force under the
Eighth Amendment. Prison security cameras captured
the incident, but the footage was ultimately erased when
the cameras recorded over it about three days later.
Bracey now appeals from the district court’s denial of
his motion requesting recruitment of counsel and its
denial of his motion for spoliation sanctions. We affirm.
2                                                 No. 12-1644

                       I. Background
A. Factual Background
  Bracey, an inmate at the Wisconsin Secure Program
Facility, suffered an injury in an altercation with cor-
rections officers on July 29, 2005. The confronta-
tion began when Bracey refused to exit his cell as re-
quested by corrections officers executing a random
search. Bracey ultimately relented when more officers
arrived. They placed him in hand restraints and trans-
ferred Bracey to a holding cell.
  Bracey’s antics resumed upon arrival at the holding
cell, however, when he prohibited the officers from re-
moving the restraint on his left hand. (Officers had
already removed his right hand from the restraints.)
After several minutes of trying to talk Bracey into com-
pliance, the officers pulled Bracey’s restrained hand
through the holding cell door to immobilize him and
safely removed the final restraint. As a result, Bracey
injured his forearm. The wound bled, soiling one
officer’s uniform.
  After completion of the search and en route back to
his regular cell, Bracey again became intransigent, re-
peatedly turning his head backward toward the
officers in violation of prison policy.1 He then, according
to defendants, “aggressively jerked” his head toward



1
  Inmates must face forward during escort to prevent
incidents of spitting, lunging, and head-butting of corrections
officers.
No. 12-1644                                             3

Officer Eric Hunt, who responded with reactionary
force by pinning Bracey against a nearby doorway. Bracey
struggled, and the officers ultimately brought him down
to the floor. After reapplying restraints, officers moved
Bracey to a more secure part of the prison. This struggle
inflicted a bump and quarter-sized bruise on Bracey’s
head.
  Prison security cameras were positioned to record
both incidents. These cameras operate on a loop, continu-
ously recording information until their memory becomes
full, which usually takes about three days. At that
point, the cameras record over the oldest material. Prison
policy at the time required download and preservation
of security video only in certain situations. These situ-
ations did not include an officer’s use of reactionary
force unless the prisoner assaulted staff.
  Two days later on August 1, Bracey filed an inmate
complaint claiming Hunt “viciously attacked” him.
During the investigation of this complaint, Bracey
notified the prison that tapes of the incident probably
exist. Bracey suggests he mentioned the recordings in his
August 1 complaint, explaining that the “Offender Com-
plaint included allegations . . . that the incident was
recorded on the Prison’s video recording system.” In
truth, Bracey did not explain the existence of the tapes
until August 3, when the Inmate Complaint Examiner
(“ICE”) interviewed him and took his written state-
ment. The ICE dismissed the complaint and forwarded
Bracey’s statement to the warden for processing.
  Also on August 1, the Security Director Designee re-
ceived incident and conduct reports documenting the
4                                              No. 12-1644

July 29 incident. After reviewing those reports, the
designee found the staff’s response adequate and did
not download the video for preservation.


B. Procedural History
   Bracey filed this lawsuit in 2010 alleging that correc-
tions officers used excessive force in violation of his
Eighth Amendment rights. He also alleged spoliation in
defendants’ failure to download and preserve the video
from the prison security cameras. After filing his com-
plaint, Bracey requested the court’s assistance in re-
cruiting counsel. 28 U.S.C. § 1915(e)(1). The district
court concluded Bracey had made adequate efforts to
find his own attorney but found the allegations suf-
ficiently straightforward and Bracey sufficiently com-
petent to handle the case himself. It denied the motion.
  Proceeding pro se, Bracey requested information
relating to the destruction of the videotapes. After
prison officials referred to certain prison policies in re-
sponding to Bracey’s interrogatories, Bracey requested
the policies themselves. The prison refused, and the
district court denied Bracey’s motion to compel, citing
the need to preserve prison security.
  As trial approached, Bracey sought sanctions for spolia-
tion of the video recording. Shortly thereafter, Bracey
secured his own counsel, who renewed Bracey’s
request for spoliation sanctions. The district court ulti-
mately denied this motion, refusing the adverse
inference instruction because none of the individual
No. 12-1644                                               5

defendants were involved in the decision not to
preserve the video.
  Bracey lost at trial. He now appeals both the denial
of his motion to recruit counsel and the denial of his
motion for spoliation sanctions.


                      II. Discussion
A. The District Court Did Not Abuse Its Discretion in
   Denying Bracey’s Request for Counsel
   District courts may ask an attorney to represent a
litigant unable to pay for his own lawyer. § 1915(e)(1). To
qualify, the indigent litigant must make reasonable
efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d
647, 654 (7th Cir. 2007) (en banc). If the litigant comes
up short, then the district court must decide whether
“given the difficulty of the case,” the plaintiff is “compe-
tent to try it himself.” Id. (citing Farmer v. Haas, 990
F.2d 319, 322 (7th Cir. 1993)). Importantly, the district
court must consider both halves of this equation—
the difficulty of the case and the competence of the
litigant. Id. at 660. When reviewing the district court’s
determination on complexity and competency, we
consider the reasonableness of the district court’s con-
clusion in light of the evidence as it stood at the time
of the district court’s decision. Id. at 659.
  We review denials of § 1915(e) motions for an abuse
of discretion. Id. at 658. Thus, we affirm unless the
district court has applied the wrong legal standard (or
made other errors of law), made clearly erroneous
6                                                No. 12-1644

factual findings, or rendered a clearly arbitrary decision
without any support in the record. Id. Even then, an
appellate court can only reverse when the absence of
counsel prejudiced the litigant, which requires “a
reasonable likelihood that the presence of counsel would
have made a difference in the outcome of the litigation.”
Id. at 659 (emphasis in original). The government does
not challenge the district court’s conclusion that Bracey
made reasonable attempts to obtain counsel himself,
and Bracey does not challenge the district court’s
findings regarding the quality of his pro se representa-
tion. Instead, Bracey emphasizes “the difficulties [he]
faced as a prisoner attempting to gather evidence.”
  Complexities anticipated (or arising) during discovery
can justify a court’s decision to recruit counsel. Id. at 655;
see also Santiago v. Walls, 599 F.3d 749, 764 (7th Cir. 2010).
Bracey argues largely that the district court failed to
consider the complexities involved in the investigation
of the alleged spoliation of the videotapes. According
to him, the district court’s order makes no explicit
mention of the spoliation issue when considering the
complexity of the case. Thus, he continues, the district
court decided his request for counsel without giving
“significant weight” to this “very important factor.”
Santiago, 599 F.3d at 763.
  True, the district court’s order denying the request
for counsel did not explicitly comment on the spolia-
tion issue, and the district court knew that issue existed
No. 12-1644                                                7

when it ruled on the request.2 But neither did the district
court’s analysis completely ignore discovery: “At the
preliminary pretrial conference, plaintiff will be given
the opportunity to ask questions he has about litigating
his case and he will be instructed about how to use dis-
covery techniques available to all litigants under the
Federal Rules of Civil Procedure so that he can gather
the evidence he needs to prove his case.” Given the defer-
ential standard of review, this language suffices to
show the district court considered the complexity of
spoliation-related discovery in this case, particularly
when the district court had previously reserved that
spoliation issue for discovery. Moreover, while we
have recognized cases involving medical expert testi-
mony or state of mind requirements as legally complex,
see Santiago, 599 F.3d at 761, we have found no case in
this circuit identifying spoliation as a complex legal
issue supporting recruitment of counsel. In fact, other
circuits have not found an abuse of discretion in
denying counsel in cases also involving spoliation. See
Jennings v. Bradley, 419 F. App’x 594 (6th Cir. 2011)
(non-precedential); Rhodes v. Robinson, 399 F. App’x 160
(9th Cir. 2010) (non-precedential); see also Brown v. Hertz,
437 F. App’x 496, 500 (7th Cir. 2011) (non-precedential)
(rejecting necessity of counsel to make county employees


2
  Bracey initially raised his allegations of spoliation as a
stand-alone count in the complaint. Wisconsin does not recog-
nize spoliation as an independent tort, however, so the
district court dismissed that count, describing spoliation
as an issue for discovery.
8                                                     No. 12-1644

“more responsive to discovery requests”). Thus, we
conclude that the district court did not abuse its dis-
cretion in its consideration of the complexity of the case.
   Bracey does not directly challenge his competence to
litigate the case. 3 He does, however, suggest that a
lawyer would have allowed him access to certain prison
policies by permitting “attorneys’ eyes only” review.
This deficiency, though, relates not to Bracey’s com-
petency but merely to his status as a prison inmate. For
this reason, Bracey’s situation differs from the litigant’s
posture in Santiago v. Walls. In that case, the litigant’s
inability to investigate his claim after his transfer to
a different prison—and the district court’s failure to
consider this fact—resulted in the court’s abuse of dis-
cretion in denying the § 1915 request. Santiago, 599 F.3d
at 762-63. Unlike the circumstances in Santiago, unique to
that prisoner alone,4 all inmates confront the discovery
restrictions facing Bracey: internal prison policies have


3
  When evaluating a plaintiff’s competence, district courts
should normally consider the plaintiff’s literacy, communication
skills, education level, and litigation experience. Pruitt, 503
F.3d at 655. The plaintiff’s intellectual capacity and psycho-
logical history are also relevant. Id.
4
   Santiago itself recognized the uniqueness of the litigant in that
case: “[A]lthough the principles of law we articulate are well-
established, our precise holding is limited to the facts and
circumstances found in the record of this litigation. In that
sense, our holding, like a special railroad fare, is limited ‘to
this day and this train only.’ ” 599 F.3d at 766 (emphasis
in original).
No. 12-1644                                                 9

relevance in nearly every prison lawsuit alleging the
excessive use of force. 5 Thus, if the need to access other-
wise inaccessible documents requires recruitment of
counsel, recruitment would result in nearly all such
cases. Section 1915 does not impose that burden.
  Other considerations support the district court’s
decision as well. The district court offered Bracey in-
struction on discovery in federal court. And Bracey
could always have renewed his request for counsel
when confronted with the difficulties of obtaining prison
security documents. Of course, a district court need not
spontaneously revisit an earlier ruling on a § 1915
motion, but nothing prevents a pro se litigant from
again requesting counsel later in a proceeding. See
Santiago, 599 F.3d at 764 (noting court can “question . . .
whether the language of the district court in disposing
of the [§ 1915 motion] impermissibly prevented [the
pro se litigant] from making later requests [for counsel]”).
More importantly, when Bracey did eventually obtain
counsel, he could have requested a continuance and
asked to reopen discovery. He did not. While the court
may have denied that request, if pro se discovery so
hampered his case and if attorney-assisted discovery
would have yielded significant benefits, one would
expect Bracey to at least advance such a position.


5
  Among the potentially relevant questions such policies might
answer are: When are corrections officers authorized to use
force? How much force is authorized in certain situations?
What preliminary measures must officers take before
resorting to force?
10                                               No. 12-1644

  In short, the district court knew of Bracey’s spoliation
allegations when concluding Bracey could handle the
case himself. Bracey received pro se support and training
resources. After all that, Bracey still could have re-
quested counsel later in the proceeding or asked the
court to reopen discovery, yet he chose not to pursue
that course of action. On these facts, we find no abuse of
discretion in denying Bracey’s first and only request
for counsel under § 1915(e). Because the district court
did not abuse its discretion in evaluating the complexity
of the case and Bracey’s competence as a pro se litigator,
we need not address the issue of prejudice.


B. The District Court Did Not Abuse Its Discretion
   in Declining to Issue an Adverse Inference Instruc-
   tion
  In this circuit, when a party intentionally destroys
evidence in bad faith, the judge may instruct the jury
to infer the evidence contained incriminatory content.
Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir.
2008). When considering the propriety of such an
adverse inference instruction, “[t]he crucial element is
not that the evidence was destroyed but rather the
reason for the destruction.” Park v. City of Chicago, 297 F.3d
606, 615 (7th Cir. 2002) (quoting S.C. Johnson & Son, Inc.
v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258 (7th
Cir. 1982)); see also Norman-Nunnery v. Madison Area Tech.
Coll., 625 F.3d 422, 428 (7th Cir. 2010). A party destroys
a document in bad faith when it does so “for the pur-
pose of hiding adverse information.” Faas, 532 F.3d at
No. 12-1644                                                  11

644 (quoting Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558
(7th Cir. 2001)). We review a district court’s denial of
an adverse inference instruction for abuse of discretion,
Park, 297 F.3d at 615, but “ ‘bad faith’ is a question of fact
like any other,” Mathis v. John Morden Buick, Inc., 136
F.3d 1153, 1155 (7th Cir. 1998). Bracey requested an ad-
verse inference instruction regarding the destroyed
videotape, which the district court denied. He now
raises two arguments on appeal. Both lack merit.
   First, Bracey suggests that the district court abused
its discretion by denying the motion prematurely. Ac-
cording to Bracey, he lacked access to the evidence neces-
sary to show spoliation, preventing the district court
from making the fact-intensive inquiry a spoliation
motion requires and resulting in an inherently arbitrary
decision. This argument attempts to shift the burden
of proof. As the moving party, Bracey must establish
the defendants destroyed the videotapes in bad faith.
Rummery, 250 F.3d at 558 (denying adverse inference
instruction when moving party “offered no evidence,
other than his own speculation, that [the documents]
were destroyed to hide” incriminatory evidence). On the
evidence available, he has not done so. The mere fact
that some evidence remained unavailable to him
does not lessen his burden of proof.6



6
  We note also that Bracey has not appealed the district court’s
denial of his motion to compel production of the prison
security policies that Bracey believes will provide the
evidence supporting his spoliation argument.
12                                              No. 12-1644

  Second, Bracey argues the merits of the spoliation
motion, challenging the district court’s finding that
“defendants are just not in any way responsible for the
destruction of the film.” According to Bracey, defendants
had a duty to preserve the video so its destruction com-
pels issuing an adverse inference instruction. Simply
establishing defendants’ duty to preserve, however, is
not enough: Bracey must also show destruction in bad
faith. Assuming—without deciding—that defendants
had a duty to preserve the tapes, bad faith requires de-
struction “for the purpose of hiding adverse informa-
tion.” Faas, 532 F.3d at 644. Bracey asserts only that
a prison security officer reviewed his complaint.
He makes no assertion that any prison official
actually viewed the relevant video (or deliberately
avoided watching the video for fear of what it con-
tained). Without having seen the video, no prison
official could have known the tapes potentially con-
tained adverse information and, without that knowl-
edge, could have destroyed the tapes for the purpose of
hiding adverse information. In this regard, Mathis v. John
Morden Buick, Inc. is instructive. In that case, the owner
of the defendant car dealership intentionally destroyed
documents that he had a legal obligation to preserve.
Mathis, 136 F.3d at 1155. Nevertheless, his opponent did
not show bad faith—that the owner had destroyed the
documents “for the purpose of hiding adverse informa-
tion”—so no adverse inference instruction could issue.
Id. at 1155-56; see also Trask-Morton v. Motel 6 Operating
L.P., 534 F.3d 672, 681-82 (7th Cir. 2008) (affirming denial
of spoliation sanction where no evidence of bad faith);
No. 12-1644                                             13

Park, 297 F.3d at 615-16 (affirming denial of spoliation
sanction when records destroyed under routine record
expungement policy); Coates v. Johnson & Johnson, 756
F.2d 524, 551 (7th Cir. 1985) (affirming denial of spolia-
tion sanction when records destroyed under routine
procedures). Nothing in any of Bracey’s filings shows
defendants destroyed the video because of any
damaging content it may have contained. Without that
showing, Mathis forecloses Bracey’s entitlement to an
adverse inference instruction.
  We recognize that a number of district courts have
issued adverse inference instructions in situations similar
to Bracey’s. See Kounelis v. Sherrer, 529 F. Supp. 2d 503,
519-21 (D.N.J. 2008); LaJocies v. City of N. Las Vegas,
No. 2:08-cv-606-GMN-GWF, 2011 WL 1630331, at *3-5
(D. Nev. Apr. 28, 2011); Peschel v. City of Missoula, 664
F. Supp. 2d 1137, 1143-44 (D. Mont. 2009). That other
trial courts have reached different conclusions on
similar facts, however, does not amount to an abuse of
discretion by the district court in this case. Indeed, dis-
cretion by its very nature permits different judges to
reach different—but reasonable—conclusions on the
same set of facts. Some circuits have adopted less
stringent standards than we require for issuing an adverse
inference instruction. Compare Park, 297 F.3d at 615 (re-
quiring intentional destruction in bad faith), with Adkins
v. Wolever, 692 F.3d 499, 504-05 (6th Cir. 2012) (requiring
only negligent destruction and a duty to preserve), and
Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (bad
faith not required for adverse inference instruction).
Simply establishing a duty to preserve evidence or even
14                                              No. 12-1644

the negligent destruction of evidence does not automati-
cally entitle a litigant to an adverse inference instruc-
tion in this circuit. Bracey has not made the requisite
showing of bad faith, and we cannot conclude that the
district court abused its discretion in declining to issue
an adverse inference instruction.
  Finally, in his reply, Bracey asks the court to reopen
discovery so he can pursue evidence surrounding the
destruction of the videotapes. He made no such
motion after trial counsel entered his appearance before
the district court and has not raised this request until his
reply brief so that argument is waived. See Coleman v.
Hardy, 690 F.3d 811, 818 (7th Cir. 2012) (argument not
raised before district court waived); Dye v. United States,
360 F.3d 744, 751 n.7 (7th Cir. 2004) (argument first raised
in reply brief waived). Given his prior opportunities
to make these requests and the civil nature of Bracey’s
claims, neither do the interests of justice require re-
opening discovery in his case.
  In short, Bracey bears the burden of showing defendants
had a duty to preserve the videotape and destroyed
that video in bad faith. That burden has not been met.


                     III. Conclusion
   For these reasons, we A FFIRM the district court’s denial
of Bracey’s request for the recruitment of counsel and
its denial of Bracey’s request for an adverse infer-
ence instruction.


                           3-15-13
