                          NONPRECEDENTIAL DISPOSITION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

                           Argued December 10, 2019
                           Decided January 23, 2020

                                        Before

                       MICHAEL S. KANNE, Circuit Judge

                       DIANE S. SYKES, Circuit Judge

                       AMY C. BARRETT, Circuit Judge

No. 18-1154

 MARSHAUN BOYKIN,                                 Appeal from the United States
   Plaintiff-Appellant,                           District Court for the
                                                  Northern District of Illinois,
         v.
                                                  Western Division.
 STEVE SANDHOLM, et al.,
                                                  No. 3:16-cv-50162
    Defendants-Appellees.

                                                  Frederick J. Kapala,
                                                  Judge.




                                      ORDER

       Marshaun Boykin filed this lawsuit under 42 U.S.C. § 1983, alleging that
the defendants, officer Steve Sandholm and eight unnamed officers, violated his
Eighth Amendment rights. The defendants moved to dismiss the lawsuit under
the Prison Litigation Reform Act, arguing that Boykin had never filed a grievance
complaint with the prison and had therefore failed to exhaust his administrative
No. 18-1154                                                                 Page 2

remedies. Boykin countered that he had, in fact, filed an emergency grievance
complaint—but he said that the prison never responded to it, rendering his
administrative remedies “unavailable.”

       After an evidentiary hearing on exhaustion, the district court dismissed
the suit. It concluded that Boykin never filed an emergency grievance complaint
and that even if he had, he failed to take advantage of his available remedies
because he did not resubmit his complaint through the non-emergency grievance
process. On appeal, Boykin challenges this ruling, as well as the denials of his
two requests for recruitment of counsel.

        While this appeal was pending, the defendants notified us that the
grievance log they produced during the exhaustion hearing did not include the
inmates’ emergency grievance complaints. In light of this error, they have asked
us to remand this case to give the district court an opportunity to reconsider its
exhaustion determination. Given the defendants’ concession, we vacate the
district court’s exhaustion ruling and remand without reaching the merits of
Boykin’s two challenges to it. We affirm, however, the denials of Boykin’s
requests for recruitment of counsel.

                                       I.

        Marshaun Boykin, then an inmate at the Dixon Correctional Center in
Illinois, filed this lawsuit under 42 U.S.C. § 1983, alleging that the defendants
violated his Eighth Amendment rights during an incident that occurred at Dixon
on March 26, 2016. According to Boykin, he was sitting in his wheelchair when a
fight between two inmates broke out. He alleges that at some point during the
fight, several correctional officers and another inmate assaulted him and that the
correctional officers then put him in a segregated facility without offering him
medical treatment.

       Boykin says that he initially tried to resolve this claim through Dixon’s
administrative process. Under the Illinois Administrative Code, an inmate can
commence administrative proceedings by filing a standard grievance complaint
within 60 days of the incident. ILL. ADMIN. CODE tit. 20, § 504.810(a). But if the
inmate believes that his grievance warrants immediate attention, he can file an
emergency grievance complaint. Id. § 504.840. Boykin alleges that he filed an
emergency grievance complaint on March 26, 2016—the day of the incident. The
prison can respond to an emergency complaint by either accepting the complaint
as an emergency grievance or denying it and notifying the inmate in writing that
he can resubmit his complaint as a standard grievance. Id. The prison notifies the
No. 18-1154                                                                   Page 3

inmate of its decision to deny the emergency grievance by checking the “non-
emergency” box on the inmate’s emergency grievance complaint and returning
the complaint to him. According to Boykin, Dixon returned his emergency
grievance complaint to him on May 7, 2016 without checking the box.
Considering his administrative remedies exhausted, Boykin submitted this
§ 1983 claim to the district court that same day.

        Boykin also filed a motion for recruitment of counsel, asserting that he
was mentally ill, illiterate, and unable to adequately represent himself. The
district court denied the motion but noted that it would be open to entertaining a
renewed motion if circumstances changed.

       The defendants responded that Boykin’s lawsuit should be dismissed
because he failed to exhaust his administrative remedies under the Prison
Litigation Reform Act (PLRA) by failing to file a grievance complaint with the
prison. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to
prison conditions under section 1983 of this title, or any other Federal law, by a
prisoner confined in any jail, prison, or other correctional facility until such
administrative remedies as are available are exhausted.”). Under Ross v. Blake,
“the exhaustion requirement hinges on the ‘availab[ility]’ of administrative
remedies: An inmate, that is, must exhaust available remedies, but need not
exhaust unavailable ones.” 136 S. Ct. 1850, 1858 (2016) (alteration in original).
Boykin argued that he exhausted all “available” remedies when he filed an
emergency grievance complaint because the prison’s failure to respond to that
complaint rendered the rest of his administrative remedies “unavailable.”

       To resolve this dispute over exhaustion, the magistrate judge, who was
overseeing some of the proceedings, ordered a Pavey hearing—an evidentiary
hearing on exhaustion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Prior to
the hearing, Boykin filed another motion for recruitment of counsel. The
magistrate judge denied this second motion.

      Boykin represented himself at the Pavey hearing via videoconference. As
evidence, he offered his own testimony, as well as the emergency grievance
complaint that the prison allegedly returned to him on May 7. The defendants
put on two witnesses: James Martens (the grievance officer who oversaw the
grievance process at Dixon) and Troy Hendrix (the officer assigned to reviewing
emergency grievances at Dixon). They both testified that Dixon had no record of
Boykin’s alleged March 26 complaint. They also testified that if Boykin had filed
an emergency grievance, it would not have been returned to him without an
answer. During the hearing, Boykin requested Dixon’s grievance log. Dixon
No. 18-1154                                                                     Page 4

produced Boykin’s Cumulative Counseling Summary sheet—which was
ultimately irrelevant—and Dixon’s Grievance Tracking Log, which had no
record of Boykin’s March 26 emergency complaint.

       The magistrate judge evaluated the evidence and recommended that
Boykin’s suit be dismissed for failure to exhaust under the PLRA. The district
court accepted the magistrate judge’s recommendation and dismissed Boykin’s
suit on two grounds. First, it held that Boykin failed to exhaust his remedies
because he never filed an emergency grievance complaint. Alternatively, it held
that even if Boykin had filed an emergency grievance complaint, he did not
exhaust his remedies because he failed to take advantage of the opportunity to
resubmit his emergency grievance complaint as a standard grievance within the
60-day window.

                                          II.

        Boykin, now represented by counsel, takes issue with two aspects of the
district court’s dismissal. First, he argues that the district court’s exhaustion
determination erroneously assumes—without any factual basis—that the
Grievance Tracking Log produced during the Pavey hearing tracks the inmates’
emergency grievances, as opposed to standard grievances. Second, Boykin
argues that the district court’s alternative ground for dismissal was based on a
legally erroneous presumption that the standard grievance process was an
“available” remedy that he was required to exhaust under the PLRA.

       Since this appeal was filed, the defendants have resolved the first issue for
us. After filing a brief urging us to affirm the district court’s dismissal, the state’s
attorney submitted a Rule 28(j) letter acknowledging that Dixon maintains two
separate grievance logs—one for standard grievance complaints and another for
emergency complaints. The Grievance Tracking Log produced during Boykin’s
Pavey hearing was the former. In light of this error, the defendants have asked us
to remand the case for another exhaustion determination. Since both parties
agree that the district court’s dismissal was tainted by the defendants’ error, we
remand this case for further proceedings on exhaustion. We leave it to the district
court to determine whether a new Pavey hearing is required to resolve the
exhaustion dispute and what the extent and scope of discovery at that hearing
should be.

      Because we are remanding for a do-over, we will not reach Boykin’s
second argument. But on remand, the district court is free to consider—as it did
before—whether the standard grievance protocol was an “available” remedy that
No. 18-1154                                                                     Page 5

Boykin was required to exhaust before bringing this suit. See Ross, 136 S. Ct. at
1859 (holding that an administrative remedy is “available” under the PLRA if it
is “‘capable of use’ to obtain ‘some relief for the action complained of’” (citation
omitted)); see also Bargher v. White, 928 F.3d 439, 447 (5th Cir. 2019) (reasoning
that because Louisiana’s two-step grievance protocol allows the inmate to move
on to step two even if he does not receive a timely response from the prison at
step one, he is required to attempt both steps under the PLRA). But see Shifflett v.
Korszniak, 934 F.3d 356, 365–66 (3d Cir. 2019) (holding that “as soon as a prison
fails to respond to a properly submitted grievance or appeal within the time
limits prescribed by its own policies, it has made its administrative remedies
unavailable” even if the prison’s nonresponse does not prevent the inmate from
taking other administrative steps).

                                          III.

      In addition to challenging the district court’s exhaustion determination,
Boykin also argues that the district court and the magistrate judge erred when
they denied his two requests to recruit counsel. We disagree.

        “There is no constitutional or statutory right to counsel in federal civil
cases.” Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). But an indigent
litigant may request that the district court appoint counsel under 28 U.S.C.
§ 1915(e)(1). We review a district court’s denial of recruitment of counsel for
abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007).

        When determining whether to grant a plaintiff’s request for recruitment of
counsel, the court must consider two questions: “(1) has the indigent plaintiff
made a reasonable attempt to obtain counsel or been effectively precluded from
doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?” Id. at 654. Boykin’s argument falters on the
second prong. The main inquiry under the second prong turns on whether “the
difficulty of the case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it to the judge or jury himself.” Id.
at 655. Both the district court and the magistrate judge reasonably determined
that, given Boykin’s ability to communicate lucidly with the court, his history of
filing adequate complaints in federal court, the simplicity of his claim, and the
straightforward nature of the proceedings, the difficulty of the case did not
exceed his capacity to litigate it.

      For Boykin’s first request at the outset of the litigation, the district court
determined that Boykin could competently litigate on his own behalf based on
No. 18-1154                                                                    Page 6

the fact that his filings were “reasonably well written” and that he had
previously filed over twenty cases in the district “without ‘striking out’ under 28
U.S.C. § 1915(g).” See id. (holding that while “there are no fixed requirements for
determining a plaintiff’s competence to litigate his own case; the judge will
normally take into consideration the plaintiff’s literacy, communication skills,
educational level, and litigation experience”). The district court also adequately
concluded that Boykin’s case was “not very complex” and predicted that a trial
would not require the parties to do much more than simply testify about the
incident. As a cautionary note, the court also acknowledged that it could not
make a conclusive determination so early in the proceedings and that it would be
open to reconsidering its decision later. See Romanelli, 615 F.3d at 852 (holding
that the district court’s denial of the plaintiff’s request at an early stage in the
proceedings was reasonable because when “the case [is] still in its infancy,” the
district court cannot “make any accurate determination regarding [the inmate’s]
abilities or the outcome of the lawsuit”).

        The magistrate judge evaluated similar factors before denying Boykin’s
second request in the lead-up to the Pavey hearing. In particular, the magistrate
judge highlighted that even though Boykin described himself as “mentally
unstable” and “illiterate,” he was a “relatively savvy litigator,” who was able to
communicate lucidly in the status conference calls. He also noted that the Pavey
hearing was “straightforward” and expressed confidence in Boykin’s ability to
discuss the steps he took to exhaust his remedies and present documentary
evidence. Cf. Walker v. Price, 900 F.3d 933, 941 (7th Cir. 2018) (holding that a jury
trial conducted over video conference was complicated enough to warrant the
appointment of counsel).

      Because both the district court and the magistrate judge reasonably
weighed Boykin’s ability to represent himself against the simplicity of the
proceedings, we conclude that neither denial was an abuse of discretion.

        Finally, Boykin urges us to encourage the district court to appoint an
attorney on remand in light of the defendants’ error and any potential
complications that may arise from it. While the district court has the discretion to
grant a renewed motion for recruitment of counsel if new developments warrant
it, we decline to put a thumb on the scale. The decision to appoint counsel on
remand remains wholly within the discretion of the district court.

       We AFFIRM in part, VACATE in part, and REMAND to the district court
for proceedings consistent with this order.
