In the
    United States Court of Appeals
              For the Seventh Circuit
                        ____________

No. 05-1620
BENJAMIN PRUITT,
                                          Plaintiff-Appellant,
                              v.

STEPHEN D. MOTE, Warden,
ADELLA JORDAN-LUSTER,
PATRICIA BEODECKER, Officer,
MICHAEL P. MESCH, Officer, and
WESLEY G. WILES, Officer,
                                       Defendants-Appellees.
                        ____________
          Appeal from the United States District Court
               for the Central District of Illinois.
           No. 03 C 1030—Harold A. Baker, Judge.
                        ____________
REARGUED EN BANC MAY 22, 2007—DECIDED OCTOBER 3, 2007
                        ____________


  Before EASTERBROOK, Chief Judge, and POSNER, COFFEY,
RIPPLE, MANION, K ANNE, ROVNER, WOOD, EVANS,
WILLIAMS, and SYKES, Circuit Judges.Œ
  SYKES, Circuit Judge. Benjamin Pruitt, an inmate at
the Pontiac Correctional Center in Illinois, filed a lawsuit
under 42 U.S.C. § 1983 alleging he was sexually assaulted


Œ
   The Honorable Joel M. Flaum took no part in the considera-
tion or decision of this case.
2                                               No. 05-1620

by a prison guard and that prison employees failed to
protect him from this assault. Prior to trial Pruitt filed
four motions asking the district court to appoint an
attorney to represent him. With the last two motions,
Pruitt submitted the results of prison tests showing he
had the educational level of an early sixth grader (his
composite math and reading scores put him at grade
level 6.2). The court denied each of these motions with a
brief, conclusory order, observing each time that the case
was not “so complex or intricate that a trained attorney
is necessary.” Proceeding pro se, Pruitt tried his claims
before a jury and lost. The sole issue on appeal is the
district court’s denial of Pruitt’s motions for appoint-
ment of counsel.
   We reverse. Although there is no constitutional or
statutory right to court-appointed counsel in federal civil
litigation, an indigent civil litigant may ask the district
court to request an attorney to represent him pro bono
publico. See 28 U.S.C. § 1915(e)(1) (in proceedings in forma
pauperis, “[t]he court may request an attorney to repre-
sent any person unable to afford counsel”). The district
court construed Pruitt’s motions as requests for pro bono
counsel under § 1915(e)(1) and summarily denied them. In
doing so, the court addressed only the complexity of the
case, omitting any inquiry into Pruitt’s competence to
litigate his own claims.
  This circuit’s legal standard for resolving § 1915(e)(1)
motions requires the district court to consider both the
difficulty of the case and the pro se plaintiff ’s competence
to litigate it himself. Although the decision whether to
recruit counsel is discretionary and our review deferential,
here the district court applied only half of the prevailing
legal standard, and that is necessarily an abuse of discre-
tion. The court’s error was not harmless; there is a rea-
sonable likelihood that assistance of counsel would have
made a difference in the outcome of Pruitt’s case. This
No. 05-1620                                                 3

is not to say there is a presumption in favor of recruit-
ing pro bono counsel for indigent civil litigants with
cases and educational deficits like Pruitt’s. We hold only
that the district court’s failure to apply the proper legal
standard means the decision was incorrect when made
and the error was ultimately prejudicial in light of the
total record. The ordinary remedy in this situation is
remand for retrial of Pruitt’s claims, with the assistance
of recruited pro bono counsel.


                      I. Background
A. Pretrial Proceedings
   In January 2003 Benjamin Pruitt filed a petition to
proceed in forma pauperis in the Central District of
Illinois, accompanied by a pro se complaint against
various employees at the Pontiac Correctional Center
seeking relief under 42 U.S.C. § 1983 for violations of the
Eighth Amendment.1 Pruitt alleged that Michael Mesch, a
corrections officer at Pontiac, took him into a prison
bathroom, ordered him to remove his clothes for a strip
search, and sexually assaulted him by fondling his penis.
Pruitt also claimed prison officials failed to respond to his
complaints regarding Mesch’s conduct.
  Pruitt’s complaint and petition were accompanied by a
handwritten motion requesting appointment of counsel.
The motion appears to have been copied from a sample
form; Pruitt included instructional language in various
places. For example, Pruitt stated in the motion that he
“respectfully moves this court, pursuant to his legal claim,
you should ask at this point that counsel be required to



1
  Pruitt has since been moved from Pontiac Correctional to the
Pinckneyville Correctional Center.
4                                               No. 05-1620

read your documents, consult with me, and amend my
petition.” The motion later states: “I have sought institu-
tional review of this matter through the proper grievance
procedures before this action was filed, at this point, state
what, if any, action was taken on, concerning my griev-
ances.” Pruitt filed a second, identical motion in February
2003.
  On March 31, 2003, the district court granted Pruitt’s
petition to proceed in forma pauperis but denied his
motions for appointment of counsel. The judge’s order
denying counsel is brief:
    Appointment of counsel is not warranted in this case.
    Neither the legal issues raised in the complaint nor
    the evidence that might support the plaintiff ’s claims
    [is] so complex or intricate that a trained attorney is
    necessary. It should additionally be noted that the
    court grants pro se litigants wide latitude in the
    handling of their lawsuits.
Pruitt’s complaint was accepted and filed on April 30,
2003.
  The defendants moved to dismiss. Pruitt responded
with a four-page, typed document making coherent argu-
ments and citing relevant case law. On its final page,
Pruitt’s response states: “Crafted by a Law Clerk at the
request of Mr. Pruitt.” Although the judge denied the
motion to dismiss, he had the following observations
about Pruitt’s complaint:
    The plaintiff ’s jumbled, sixty page complaint is very
    difficult to decipher. The plaintiff has attached numer-
    ous documents in the middle (Comp., p. 9-36) and at
    the end of his complaint. (Comp., p. 40-60) Many of
    [these] documents appear to have little or no relevance
    to the claims in the main body of plaintiff ’s complaint.
No. 05-1620                                                       5

The judge concluded Pruitt was making three claims: (1)
that Mesch sexually harassed him in violation of the
Eighth Amendment; (2) that the other defendants failed
to protect him from Mesch’s attacks; and (3) that an
unrelated disciplinary report and hearing violated Pruitt’s
equal protection and procedural due process rights. The
judge dismissed the third claim but allowed the first
two claims to proceed.
  Pruitt filed a third motion for appointment of counsel
on July 6, 2004. This time he submitted a typed and
notarized motion accompanied by exhibits. One exhibit
contained the results of tests Pruitt underwent while
incarcerated to determine the grade in school to which
his educational level corresponds. According to that re-
port, Pruitt tested at a reading level of 8.5 and a math
level of 3.9, for an average educational level just above
that of a sixth grader (grade level 6.2).2 Also included were
two letters he received in response to his effort to secure
legal representation,3 as well as two affidavits from Pruitt.
One of Pruitt’s affidavits states as follows:
    I Benjamin Pruitt, B-55009, I am making a state-meat
    about this c/o Mr:Mesch, #3240, sexiual-harassment
    me, (touching-my-private parts on my body), 5-day’s
    a week. There are other inmate’s that he do this too
    also but they are not talking about it because they
    believe that it will be a big problom with the c/o’s down
    here, so the one’s that I do have they will be my eye-
    witnesses . . . .


2
  The test result form indicates a combined score below 6.0
automatically places an inmate into the Adult Basic Education
program.
3
   Only one of these letters is actually from an attorney; the other
is from a legal staffing company Pruitt apparently mistakenly
contacted.
6                                                    No. 05-1620

On November 30, 2004, the district court denied Pruitt’s
motion in an order repeating verbatim the language of its
March 2003 order.
  On December 8, 2004, Pruitt appeared via video-
conference before the district court for a brief pretrial
hearing. During that hearing, the court attempted to
determine the anticipated testimony of Pruitt’s proposed
witnesses. Pruitt responded generally:
    That this same officer mentioned he came into the unit
    harassing me, and every time I would go on a walk
    where we would go to chow, my whole unit my celly
    was there and some other—I’m sorry. A lot of them
    I allege as witnesses they would verify this same
    officer who harassed me.
He later stated: “The only thing they can say that they see
him harassed and they seen them take me to the bath-
room. That’s what they can verify. What happened in the
bathroom they don’t know.” Pruitt expressed some confu-
sion when the judge asked him about the exhibits he
would like to use at trial. The conference concluded with
the court setting a trial date of February 14, 2005.
  On December 27, 2004, Pruitt filed his fourth and final
motion for appointment of counsel. This motion is nearly
identical to his third but was also accompanied by a two-
page letter to the clerk’s office. In the letter, Pruitt at-
tempted to explain the content of the attached exhibits and
to reiterate his plea for appointment of counsel.4
A relevant sample:
    [W]ith this attachment are a copy attach are showing
    the court’s that the plaintiff ’s Benjamin Pruitt has a


4
   The first half of the letter reads as one continuous 16-line
sentence, with capitalization of the first letter of the first word
of each line.
No. 05-1620                                                7

   6.2 in grade and has no knowledge of the law, nor do
   he has the ability to investigate the facts of the case,
   nor do he has the ability and/or locating interview-
   ing the other inmate’s which are (witnesses to the case
   of his (assoulted and harassed) . . . .
On January 25, 2005, the district court denied Pruitt’s
final request for counsel, again using the identical lan-
guage of its prior two orders. After a brief final pre-
trial by videoconference, trial began as scheduled on
February 14.


B. Trial Proceedings
  At the judge’s prompting, Pruitt began his case with an
opening statement to the jury:
     Each one of my witnesses is going to verify that
   Officer Mesch just harassed me everyday. . . . At this
   time, the only thing I could say is that the witness
   they got now, I don’t know if they are going to verify
   that they seen me went to the washroom at the time or
   just been seeing me out—I mean coming to chow.
    I’m sorry. I’m sorry. I’m kind of nervous. Let’s see.
   What do you want me to say now?
The judge continued to prompt Pruitt and asked him if he
wanted to talk about the prison employees’ alleged failure
to respond to his complaints. Pruitt then continued:
     No, they should have been charged me why they let
   the officers—why they do something to him. I ain’t
   looking to go to seg or try to go to Tamms or nothing
   like that. I am trying to go home. I ain’t trying to catch
   no time in the penitentiary. It’s just telling me put a
   lawsuit or something.
The judge asked whether that was what Pruitt wanted to
say for his opening statement. Pruitt responded: “I don’t
8                                                  No. 05-1620

know. Judge, I don’t know how to defend myself. I don’t
know where to begin.”
  After the defendants’ opening statement, the judge
asked Pruitt to testify. The judge basically performed a
direct examination, taking Pruitt through a series of
questions to elicit both background information and his
allegations against the defendants. With the judge’s
assistance and clarification, Pruitt testified that Mesch
pulled him into the bathroom, told Pruitt he had a court
order to examine some marks on his body, instructed
Pruitt to remove his clothes, then proceeded to fondle
Pruitt’s penis. Pruitt testified that this incident was
interrupted when another officer entered the bathroom,
and that Mesch then allowed him to dress and return to
his unit. Pruitt also testified about the attempts he
made to report Mesch’s conduct. Throughout Pruitt’s
testimony the judge provided repeated prompting and
instructions about when the rules of evidence barred his
testimony. Pruitt was then cross-examined, and the
defense sought to impeach him with inconsistent state-
ments from his deposition.
  After his testimony Pruitt called five witnesses to the
stand. Pruitt’s examination of the first four—all prison
inmates at Pontiac—consisted of asking them whether
they recalled an incident between Mesch and himself.5
One witness recalled an unrelated confrontation in which
Mesch and another officer restrained Pruitt with hand-
cuffs, but Pruitt maintained the witness must be confusing
him with another prisoner. The other witnesses either
could not recall Mesch or could not recall Pruitt. When


5
  Pruitt’s initial witness list included 12 names, but Pruitt had
no information regarding the current whereabouts or full names
of prisoners who had since been released, so subpoenas were
only issued for those witnesses still incarcerated.
No. 05-1620                                                   9

these witnesses failed to remember the alleged incident,
Pruitt unsuccessfully attempted to introduce his own
affidavit as evidence of their recollections. His final
witness was a hearing officer who handled a complaint
Pruitt made, but she had no independent recollection of
the complaint. Throughout the presentation of these
witnesses, the judge often questioned them on Pruitt’s
behalf and prompted Pruitt to make objections or introduce
evidence when necessary.6
  The defense presented five witnesses: Mesch and prison
employees who had been involved in the subsequent
grievance process. When Mesch took the stand, Pruitt
asked a series of questions regarding whether the officer
remembered harassing him; Mesch denied any harass-
ment or knowledge of Pruitt’s complaints of harassment.
Pruitt’s cross-examination of the other witnesses gen-
erally consisted of asking whether they remembered
receiving written complaints from him about the incident
with Mesch, and asking no further questions if they did
not. The judge would sometimes assist or take over
questioning on Pruitt’s behalf. After resting, the defen-
dants moved for judgment as a matter of law, arguing
that Pruitt’s own testimony disproved his allegations.7
The judge denied the motion, stating that Pruitt could
prevail if the jury believed his testimony.
  Pruitt began his closing argument by telling the court,
“I don’t know how to word it again.” At the judge’s prompt-
ing, he started over, telling the jury that he had testified


6
  The only exhibit Pruitt succeeded in introducing was a letter
from a prison employee stating she had forwarded one of his
complaints to internal affairs for investigation.
7
  While testifying, Pruitt mixed up a number of dates, sometimes
placing his complaints about harassment before the harass-
ment itself.
10                                              No. 05-1620

truthfully and did not know what else to say. He concluded
by saying: “The evidence shows what I said and that’s
about all I can say right now.” The defendants’ closing
argument focused primarily on discrepancies in Pruitt’s
testimony, and in a brief rebuttal, Pruitt tried to clarify
some of those discrepancies. The case was then submitted
to the jury, which returned in less than 30 minutes with
a verdict in favor of the defendants.
  Now represented by pro bono counsel, Pruitt challenges
the denial of his four pretrial motions asking the district
court to request counsel to represent him. On December
28, 2006, a divided panel of this court affirmed. Pruitt v.
Mote, 

, 489 (7th Cir. 2006) (vacated March 21,
2007). Judge Posner dissented on the ground (among
others) that the tenor of the panel opinion would hencefor-
ward make discretionary denials of counsel practically
unreviewable. 

(Posner, J., dissenting). On March
21, 2007, we granted rehearing en banc and ordered
supplemental briefing on the legal standard that governs
the district court’s decision whether to request counsel
for a pro se litigant and the criteria the court should
consider when deciding such a motion.


                     II. Discussion
  The federal in forma pauperis statute provides that “[a]
court may request an attorney to represent any person
unable to afford counsel.” 28 U.S.C. § 1915(e)(1). The
statute’s use of the word “may” “clearly connotes discre-
tion,” Martin v. Franklin Capital Corp., 

, 136
(2005) (quoting Fogerty v. Fantasy, Inc., 

, 533
(1994)), and its use of the word “request” allows “courts to
ask but not compel lawyers to represent indigent[s],”
Mallard v. U.S. Dist. Court for S. Dist. of Iowa, 

, 307 (1989). Section 1915(e)(1) thus codifies the court’s
discretionary authority to recruit a lawyer to represent
No. 05-1620                                              11

an indigent civil litigant pro bono publico; it “does not
authorize the federal courts to make coercive appoint-
ments of counsel.” 

  As members of a profession and officers of the court,
however, lawyers “have obligations to their calling which
exceed their obligations to the State,” 

(Kennedy,
J., concurring), and the Supreme Court has said that
§ 1915(e)(1) “may meaningfully be read to legitimize a
court’s request to represent a poor litigant and therefore
to confront a lawyer with an important ethical decision.”

Accordingly, we have previously noted that
because “judges are usually able to find lawyers willing
to accede to such ‘requests,’ ” they are “as a practical
matter . . . appointments.” Hughes v. Joliet Corr. Ctr., 

, 429 (7th Cir. 1991). In forma pauperis plaintiffs
typically ask judges to “appoint” counsel, and judges
regularly construe motions seeking “appointment” of
counsel—which Pruitt’s four motions did—as motions
seeking the court’s assistance under § 1915(e)(1) in
recruiting a volunteer.
  When reviewing denials of § 1915(e)(1) motions on
appeal, we have usually engaged in three inquiries: (1) has
the indigent plaintiff “made reasonable efforts to retain
counsel” or “been effectively precluded from making such
efforts” before requesting appointment, see Jackson v.
County of McLean, 

, 1073 (7th Cir. 1992); (2)
“given the difficulty of the case, did the plaintiff appear
to be competent to try it himself,” Farmer v. Haas, 

, 322 (7th Cir. 1993); and (3) “if not, would the
presence of counsel have made a difference in the out-
come,” 

questions encompass elements of
both the legal standard that guides the district court’s
exercise of discretion and the appellate standard of re-
view; our cases have not always clearly marked the
distinction between the two. Nor have we always been
12                                               No. 05-1620

consistent in articulating and applying the inquiries each
question represents. We granted rehearing en banc to
clarify the district court’s obligations, and our own. We
also take this opportunity to resolve conflicting state-
ments in our case law regarding the interests that are—or
more precisely, are not—at stake in this context.


A. District Court Analysis
  As we have noted, the language of § 1915(e)(1) is en-
tirely permissive; it says the court “may” request an
attorney to represent a person unable to afford counsel.
Although the statute “legitimizes” the court’s request for
a pro bono lawyer, its language suggests no congressional
preference for recruitment of counsel in any particular
circumstance or category of case. Instead, the decision
whether to recruit pro bono counsel is left to the district
court’s discretion. Johnson v. Doughty, 

, 1006
(7th Cir. 2006); 

. This “does not
mean that no legal standard governs that discretion. We
have it on good authority that ‘a motion to [a court’s]
discretion is a motion, not to its inclination, but to its
judgment; and its judgment is to be guided by sound legal
principles.’ ” 

(quoting United
States v. Burr, 

, 35 (No. 14,692d) (C.C. Va.
1807) (Marshall, C.J.)); see also McNeil v. Lowney, 

, 1371 (7th Cir. 1987).
   Pro se prisoner litigation and requests for pro bono
counsel are pervasive in federal court; over time, our cases
have settled on a general framework to guide the district
court’s exercise of discretion. When confronted with a
request under § 1915(e)(1) for pro bono counsel, the district
court is to make the following inquiries: (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
No. 05-1620                                                     13

appear competent to litigate it himself? 

. The first step in this analysis is not at issue
in this appeal; we will not address it further except to
reiterate that it is a threshold question the district court
must ask before ruling on a § 1915(e)(1) motion. The
second step is central to this appeal and requires clari-
fication.
   The decision whether to recruit pro bono counsel is
grounded in a two-fold inquiry into both the difficulty of
the plaintiff ’s claims and the plaintiff ’s competence to
litigate those claims himself.8 The inquiries are neces-
sarily intertwined; the difficulty of the case is considered
against the plaintiff ’s litigation capabilities, and those
capabilities are examined in light of the challenges
specific to the case at hand. The question is not whether
a lawyer would present the case more effectively than the
pro se plaintiff; “if that were the test, ‘district judges
would be required to request counsel for every indigent
litigant.’ ” 

(citing Luttrell v.
Nickel, 

, 936 (7th Cir. 1997) (quoting 

)). Rather, the question is whether the
difficulty of the case—factually and legally—exceeds
the particular plaintiff ’s capacity as a layperson to coher-
ently present it to the judge or jury himself.
  We have sometimes said the district court’s inquiry
is whether the plaintiff appears competent “to try” his
own case, see, e.g., 

; to the extent
this formulation focuses solely on the trial stage of the


8
   Farmer v. Haas streamlined this circuit’s earlier five-factor
test, adopted in Maclin v. Freake, 

, 887-89 (7th Cir.
1981), by condensing Maclin’s multiple factors into a simpler
two-part inquiry into the difficulty of the case and the plain-
tiff ’s competence to litigate it himself. 

, 321-22 (7th
Cir. 1993).
14                                             No. 05-1620

proceedings, it is incomplete. The question is whether the
plaintiff appears competent to litigate his own claims,
given their degree of difficulty, and this includes the
tasks that normally attend litigation: evidence gathering,
preparing and responding to motions and other court
filings, and trial. Recruitment of pro bono counsel under
§ 1915(e)(1) is not limited to the trial phase of the case.
See 

(reversing a denial of a pro
bono counsel based on the judge’s general policy not to
recruit counsel unless an evidentiary proceeding is war-
ranted; the judge “should have considered Hughes’s
request [for counsel] in light of the particulars of his
case rather than simply deny the request in accordance
with a general policy”).
   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. To the extent there is any evidence
in the record bearing on the plaintiff ’s intellectual
capacity and psychological history, this, too, would be
relevant.9 To inform the decision, the judge should
review any information submitted in support of the request
for counsel, as well as the pleadings, communications from,
and any contact with the plaintiff. We recognize that the
volume of pro se prisoner cases is great, and in some
cases—perhaps many cases—the record may be sparse.
The inquiry into the plaintiff ’s capacity to handle his own
case is a practical one, made in light of whatever relevant
evidence is available on the question.



9
  We do not mean to suggest that any factor is necessary or
conclusive, but have identified these factors as among those
that would ordinarily be relevant to the analysis.
No. 05-1620                                                 15

  Likewise, there are no hard and fast rules for evaluat-
ing the factual and legal difficulty of the plaintiff ’s claims.
We have previously observed that some cases—those
involving complex medical evidence, for example—are
typically more difficult for pro se plaintiffs. See Zarnes v.
Rhodes, 

, 289 n.2 (7th Cir. 1995). But because
the decision belongs to the district court, we have resisted
laying down categorical rules regarding recruitment of
counsel in particular types of cases. 

(refusing
to recognize a rule of “automatic appointment of counsel
whenever a litigant alleges a violation of due process”).
There are no presumptions for or against recruitment of
counsel, whether based on the nature of the case or the
degree of plaintiff competence. The inquiry into plaintiff
competence and case difficulty is particularized to the
person and case before the court. It is undertaken with due
regard for the nature of the request at hand; before a
judge will invoke his discretionary authority to press a
lawyer into service on an indigent plaintiff ’s case pro bono,
he first rules out the possibility that the plaintiff is
competent to litigate it himself.
  Of course when faced with a § 1915(e)(1) motion, the
judge cannot know with certainty whether the plaintiff will
actually prove to be competent to litigate his own case. He
can only make a determination based on the record as it
exists when the motion is brought, and our review is
limited to the record at the time the decision was made (we
will have more to say on this later). Accordingly, although
the judge certainly has the discretion to do so, he has no
obligation to reconsider a § 1915(e)(1) denial should future
events prove the plaintiff less capable than the record
indicated when the motion was denied.
  Such an obligation might be inferred from our case law,
which has routinely suggested that pro bono counsel may
not be denied “if it would result in fundamental unfairness
16                                                    No. 05-1620

infringing on due process rights.”10 Gil v. Reed, 

, 657 (7th Cir. 2004); see also 

;

; 

.
This implies that at a certain point on the case-
difficulty/plaintiff-competence continuum, a due process
entitlement to counsel kicks in. Not so. We have also said
it is a “fundamental premise that indigent civil litigants
have no constitutional or statutory right to be represented
by counsel in federal court.” 

; see
also 

; 

(“Civil litigants do not have a right, either constitutional
or statutory, to counsel.”). In this regard, cases like
Jackson and Zarnes are on both sides of the proposition;
this conflict contributed to our decision to rehear this
case en banc. We cannot on the one hand imply that the
decision to recruit counsel under § 1915(e)(1) implicates
the due process rights of the indigent civil litigant and on
the other declare that indigent civil litigants have no
constitutional right to counsel in federal court.



10
   This oft-repeated language is traceable to a case involving a
collateral attack on a federal prisoner’s guilty plea. LaClair v.
United States, 

, 489 (7th Cir. 1967) (“We hold
that the law in this circuit is that appointment of counsel for
indigents in habeas corpus and section 2255 proceedings rests
in the sound discretion of district courts unless denial would
result in fundamental unfairness impinging on due process
rights.”). Although we have repeated it many times in nonhabeas
pro se prisoner cases, we have rarely elaborated upon its origins
or implications, nor have we updated it in this context in light
of more recent Supreme Court case law holding that due pro-
cess does not require appointment of counsel for prisoners
bringing collateral challenges to their convictions, see Murray
v. Giarratano, 

, 11-12 (1989); Pennsylvania v. Finley,

, 556-57 (1987), and discussing the scope of prison-
ers’ right of access to the courts, see Lewis v. Casey, 

,
354 (1996).
No. 05-1620                                                     17

   The general rule is that due process requires the provi-
sion of counsel to indigent litigants “only where the
litigant may lose his physical liberty if he loses the litiga-
tion,” Lassiter v. Dep’t of Soc. Servs. of Durham County,

, 25 (1981), and that is possible only when the
government brings the litigation.11 Thus, due process
does not require appointment of counsel for indigent
prisoners pursuing state postconviction remedies or


11
   We note that the issue in this case does not implicate the
question of what process is due when the purpose of civil
proceedings is to effect a deprivation of a protected interest other
than physical liberty, which again occurs only when the govern-
ment initiates action (administrative or otherwise) against
an individual, possibly triggering the right to due process
protections. See Mathews v. Eldridge, 

, 332 (1976)
(holding that “procedural due process imposes constraints on
governmental decisions which deprive individuals of ‘liberty’ or
‘property’ interests within the meaning of the Due Process Clause
of the Fifth or Fourteenth Amendment”; discussing what pro-
cess is due before the government may administratively termi-
nate an individual’s social security disability benefits); Lassiter
v. Dep’t of Soc. Servs. of Durham County, 

, 27-32
(1981) (due process does not require appointment of counsel to
indigent parents in all termination-of-parental-rights cases, but
the decision whether due process requires appointed counsel is
to be decided by the trial court case by case); Gagnon v. Scarpelli,

, 790 (1973) (no per se right to appointed counsel
at probation revocation hearing, which concerns only the
revocation of the defendant’s conditional liberty; right to ap-
pointed counsel is to be decided case by case). Ordinary federal
civil litigation brought by individual plaintiffs against govern-
ment actors adjudicates and redresses alleged violations of the
plaintiff ’s rights (here, Pruitt’s Eighth Amendment rights); it
does not itself effect a deprivation of the plaintiff ’s protected
interests. In other words, if the plaintiff loses the litigation, he
is not deprived of a protected interest in the sense that is meant
in the Mathews v. Eldridge line of due process cases; he just
loses his case.
18                                                No. 05-1620

federal habeas relief. Murray v. Giarratano, 

, 11-
12 (1989); Pennsylvania v. Finley, 

, 556-57
(1987); Lostutter v. Peters, 

, 396 (7th Cir. 1995),
overruled on other grounds by Hogan v. McBride, 

(7th Cir. 1996).
   The Supreme Court has also made it clear that a pris-
oner’s right of access to the courts does not guarantee the
effective presentation of his civil claims.12 The right of
access to the courts protects prisoners from “being shut out
of court,” see Christopher v. Harbury, 

, 413
(2002); it does not exist to “enable the prisoner . . . to
litigate effectively once in court.” Lewis v. Casey, 

, 354 (1996) (to expand the “right of access” to guaran-
tee prisoners a right to “litigate effectively” would essen-
tially “demand permanent provision of counsel, which we
do not believe the Constitution requires”); see also Bounds
v. Smith, 

, 827 (1977) (“right of access to the
courts requires prison authorities to assist inmates in the
preparation and filing of meaningful legal papers” (em-
phasis added)).
  Moreover, the interests of an indigent civil litigant in
this context are not analogous to those of a criminal
defendant whose competency must be monitored by the
court throughout the proceedings to protect his due pro-
cess right not to stand trial if incompetent. See Drope v.
Missouri, 

, 171-72 (1975); Pate v. Robinson,

, 378 (1966). Competency in criminal cases
is subject to reevaluation because it is essential to a
defendant’s ability to exercise the fundamental procedural


12
  The precise source of the right of access to the courts has
varied with the nature of the claim; it has been described as “a
consequence of the right to due process of law” and also as “an
aspect of equal protection.” See 

n.6;

(Thomas, J., concurring).
No. 05-1620                                                    19

rights guaranteed by the Fifth and Sixth Amendments.13
See Riggins v. Nevada, 

, 139-40 (1992)
(Kennedy, J., concurring) (“Competence to stand trial is
rudimentary, for upon it depends the main part of those
rights deemed essential to a fair trial, including the
right to effective assistance of counsel, the rights to
summon, to confront, and to cross-examine witnesses, and
the right to testify on one’s own behalf or to remain silent
without penalty for doing so.”). Those rights, and the due
process protections recognized to safeguard them, exist
because of the liberty interest implicated by a criminal
prosecution.
   Nothing in § 1915(e)(1) itself suggests an obligation to
revisit an earlier denial of pro bono counsel. Accordingly,
there is neither a statutory nor a constitutional duty
to monitor whether an indigent litigant is competently
litigating his civil claims after a § 1915(e)(1) request has
been denied. The district court is required to exercise
its discretion appropriately when presented with a mo-
tion seeking recruitment of pro bono counsel, but that
is where its obligations end. The court certainly retains the
discretion to adjourn a trial and recruit pro bono counsel
if it appears as though an earlier denial of a request for
counsel may have been ill-advised; doing so here might
well have been prudent given Pruitt’s obvious inadequa-
cies. But the court has no general duty to do so, even
where an indigent plaintiff ultimately proves incompetent
to litigate his own claims.


13
  Accordingly, the analysis of “competence” in this context is not
the same as the competence-to-stand-trial analysis in criminal
cases. The latter, rooted in due process, requires the court to
determine “whether [the defendant] has sufficient present ability
to consult with his lawyer with a reasonable degree of rational
understanding—and whether he has a rational as well as fact-
ual understanding of the proceedings against him.” Dusky v.
United States, 

, 402 (1960) (quotations omitted).
20                                             No. 05-1620

B. Appellate Review
  We review the denial of a § 1915(e)(1) motion for abuse
of discretion. Greeno v. Daley, 

, 658 (7th Cir.
2005); 

. “A court does not abuse its
discretion unless . . . (1) the record contains no evidence
upon which the court could have rationally based its
decision; (2) the decision is based on an erroneous conclu-
sion of law; (3) the decision is based on clearly erroneous
factual findings; or (4) the decision clearly appears arbi-
trary.” Musser v. Gentiva Health Servs., 

, 755
(7th Cir. 2004) (quotations omitted). As with any discre-
tionary determination, the question on appellate review
is 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.
  Accordingly, we do not undertake our own analysis of the
degree of case difficulty as against the plaintiff ’s compe-
tence to litigate it himself; that is the district court’s
inquiry, not ours. “Because of the particularistic character
of the ruling and the fact that the district judge has the
considerable advantage over us of having seen how the
plaintiff handled [him]self in the pretrial proceedings, our
review of the judge’s decision not to request a lawyer for
the plaintiff is deferential. We ask not whether [the judge]
was right, but whether he was reasonable.” 

.
  Appellate review is necessarily limited to the evidence
available when the § 1915(e)(1) motion was denied. Al-
though it is tempting to consider evidence postdating the
court’s ruling—especially where (as here) the pro se
plaintiff ’s trial performance is particularly incompe-
tent—this evidence can serve only two purposes, and both
are improper on abuse-of-discretion review. First, such
evidence might be used to infer the plaintiff could not have
No. 05-1620                                                    21

appeared competent at the time the judge decided the
§ 1915(e)(1) motion. But “[e]rror is relative to what the
judge reasonably could have known at the time he had to
make his ruling.” 

at the time
discretion was exercised cannot be used to demonstrate
abuse of that discretion.14
  Second, and relatedly, evidence postdating the decision
might be used to show that the court’s ruling, although
reasonable at the time it was made, was proven unreason-
able by the litigant’s performance at trial. But “[i]f the
judgment was sensible when made, the fact that after the
trial it is apparent that the plaintiff was not competent to
try the case after all will not establish error.” 

to find error in the court’s failure to recruit counsel based
on evidence that developed after the motion was reason-
ably rejected, we would in effect be imposing a duty on the
court to reexamine its prior ruling. As we have just
explained, there is no statutory or constitutional basis


14
   In cases such as this one—where the district court simply fails
to make any determination of the plaintiff ’s competence to
litigate his own case—evidence postdating the denial of the
motion has no bearing on the abuse-of-discretion determination.
The judge’s failure to make the proper inquiry is itself an abuse
of discretion; consideration of the plaintiff ’s performance at
trial is superfluous, except as it relates to prejudice. We note
that here, the evidence before the district court at the time of
Pruitt’s third and fourth § 1915(e)(1) motions makes it implausi-
ble that the judge, had he considered the question, would have
found Pruitt competent. That evidence included Pruitt’s com-
plaint, which the district court characterized as “jumbled” and
“difficult to decipher,” a coherent legal memorandum drafted not
by Pruitt but by a prison law clerk in opposition to the defen-
dants’ motion to dismiss, additional written and oral communica-
tions reflecting Pruitt’s confusion and general low function-
ing, and educational testing indicating Pruitt’s skills were
equivalent to that of a sixth grader.
22                                                No. 05-1620

for such a duty, although the judge has the discretion to
revisit sua sponte a previous denial of pro bono counsel.
  This is not to say poor performance at trial is irrelevant;
to the contrary, it is critical to the question of prejudice, to
which we now turn. Even if a district court’s denial of
counsel amounts to an abuse of its discretion, we will
reverse only upon a showing of prejudice. 

cases have sometimes framed this inquiry in terms of
whether the presence of counsel would have made a
difference in the outcome, see 

not mean that
to establish prejudice the plaintiff must demonstrate that
he would have won his case had he been represented
by counsel. Instead, an erroneous denial of pro bono
counsel will be prejudicial if there is a reasonable likeli-
hood that the presence of counsel would have made a
difference in the outcome of the litigation.
  Unlike abuse of discretion, prejudice may be established
by a litigant’s poor performance before or during trial. For
example, if the record demonstrates that the pro se
plaintiff was incapable of engaging in any investigation; or
locating and presenting key witnesses or evidence; or
presenting a reasonably coherent opening statement,
witness examinations, and closing argument during trial,
the plaintiff may be able to establish a reasonable likeli-
hood that the presence of counsel would have made a
difference in the outcome. This is not to say every mistake
along the way will establish prejudice; some erroneous
denials of pro bono counsel will turn out to be harmless.
Whether there is a reasonable likelihood that the
presence of counsel would have altered the outcome
depends upon a totality-of-the-circumstances review of
the proceedings as a whole.
  We recognize that litigation presents significant chal-
lenges for all pro se plaintiffs, especially pro se prisoner
plaintiffs; many prisoners are poorly educated and most
No. 05-1620                                              23

are unfamiliar with the requirements and techniques of
discovery, witness examination, and the application of
the rules of evidence. Prejudice, like abuse of discretion,
will be established—or not—in the particularized context
of the case and the record before the court.


C. Pruitt’s Motions
   Here, the district court applied the wrong—that is, an
incomplete—legal standard when reviewing Pruitt’s
motions for pro bono counsel. None of the three orders
denying Pruitt’s four motions makes any mention of his
competence, either independent of or relative to his
claims. Rather, the identical orders state that “neither
the legal issues raised in the complaint nor the evidence
that might support the plaintiff ’s claims [is] so complex
or intricate that a trained attorney is necessary.” This
boilerplate gives no indication that the district court
engaged in the required analysis of Pruitt’s competence to
litigate his claims; indeed, it flatly implies the court did
not. The court’s failure to undertake this necessary in-
quiry is an abuse of discretion. Westever v. Snyder, 

, 583 (7th Cir. 2005) (failure to apply the cor-
rect legal standard is an abuse of discretion).
  The defendants maintain Pruitt was not prejudiced
because his case was too weak to succeed even with the
assistance of counsel. This argument slightly miscon-
strues the prejudice inquiry. The question is not
whether the case was a sure winner but for the absence
of counsel; this is impossible to know. Rather, the question
is whether assistance of counsel could have strengthened
the preparation and presentation of the case in a manner
reasonably likely to alter the outcome. This trial was a
swearing contest. As the district court noted in denying
the defendants’ motion for judgment as a matter of law,
Pruitt’s testimony, if believed by the jury, was sufficient
24                                              No. 05-1620

to sustain a verdict in his favor. But fending for himself
before and at trial severely compromised Pruitt’s chances
of persuading the jury, given his serious educational
and forensic shortcomings.
  Examples of these shortcomings abound, beginning with
Pruitt’s poor pretrial preparation. With the exception of a
single document drafted by a prison law clerk, Pruitt’s
court filings were disorganized, very poorly written, and
at times incoherent; the district court described the
complaint as “jumbled” and “very difficult to decipher.”
Pruitt took no depositions and had significant difficulty
explaining his anticipated testimony and exhibits during
the pretrial videoconferences. To compound these prob-
lems, Pruitt’s own deposition testimony—given without
the benefit of preparation and assistance of counsel—
supplied the principal means of contradicting his testi-
mony at trial. An attorney could have significantly dimin-
ished these pretrial difficulties by helping Pruitt identify,
locate, and prepare witnesses before trial, and avoid
common deposition pitfalls.
  Even with the substantial assistance he received from
the district court, Pruitt’s inept trial performance demon-
strates the difference counsel could have made. Pruitt did
not understand what an opening statement or closing
argument entailed, and he proved utterly incapable of
summarizing the facts of his case. He was barely able to
provide a sequential account of the alleged assault by
Mesch or his subsequent complaints to prison authorities,
and his testimony became even more confused during
cross-examination. Pruitt’s direct and cross-examinations
elicited little, if any, information from witnesses, and he
succeeded in entering only one exhibit into evidence. At the
very least, counsel could have helped Pruitt present
his story to the jury in a more organized and coherent
manner, and deliver a cogent opening statement and
closing argument on his behalf.
No. 05-1620                                               25

  In the end, the defendants’ argument about the weak-
ness of Pruitt’s case rests on a conclusion that Mesch
testified truthfully and Pruitt lied, which presupposes
credibility determinations properly left to a finder of fact.
The question for us on the issue of prejudice is whether
there is a reasonable likelihood that Pruitt lost the swear-
ing contest not because of the inherent weakness of his
claim, but because of his incompetent preparation and
presentation of it to the jury. On this record, we
think there is a reasonable likelihood that Pruitt’s
claims failed on account of poor preparation and presenta-
tion.
  Accordingly, Pruitt was prejudiced by the district court’s
denial of his requests under § 1915(e)(1), and the case
must be returned to the district court for retrial with
recruited pro bono counsel. We reach this judgment
recognizing that the standard of review is deferential and
reversal is justified only on a showing of harm. We appreci-
ate that pro se prisoner cases have proliferated and
each one presents special challenges for trial judges. We
acknowledge that trial judges are better situated by
position and experience to manage those challenges. The
lawyers who accept prisoner cases pro bono publico are
performing a valuable service for the court as well as
the client. Pro se litigants, and the members of the bar
who are asked to serve them as volunteers, are entitled
to the court’s careful consideration of any motion for pro
bono counsel under § 1915(e)(1).
  The principles reiterated here are intended to ensure
that requests for pro bono counsel are resolved according
to a consistent framework calibrated to the nature of
the discretionary judgment called for by § 1915(e)(1). They
are not meant to move the exercise of discretion toward
recruitment of counsel more often than not, or more
often than is now the case; we repeat that the inquiry is
individualized to the plaintiff and case before the court.
26                                             No. 05-1620

Here, the district judge abused his discretion by applying
the incorrect legal standard to Pruitt’s requests for pro
bono counsel, and the denial of those requests was ulti-
mately prejudicial.
  The judgment of the district court is REVERSED, and the
case is REMANDED for recruitment of pro bono counsel
and retrial.




  ROVNER, Circuit Judge, with whom RIPPLE, WOOD, and
WILLIAMS, Circuit Judges, join, concurring. I join the
court in reaffirming that a district court must consider
an indigent party’s ability to litigate the case in ruling
upon a request for counsel under section 1915(e)(1). Judge
Sykes has carefully explained why, in light of that obliga-
tion, the district court abused its discretion in denying
Pruitt’s multiple requests for an attorney and why Pruitt
was prejudiced by the refusal to recruit counsel to repre-
sent him. I share her views on both of these points. I part
ways with the majority opinion in only one respect.
   The majority declares that the district court has no
ongoing duty to evaluate an indigent party’s ability to
handle the case alone and to sua sponte reconsider its
earlier denial of a request for counsel when it becomes
clear that a lawyer is needed. Ante at 15, 19. Although this
was a subject raised by members of the court at oral
argument, it is not clear to me why the majority resolves
it in today’s opinion. The court ultimately concludes that
the district court, in denying Pruitt’s multiple requests
for counsel, abused its discretion by failing ever to con-
No. 05-1620                                              27

sider Pruitt’s competence to litigate the case. Ante at 23.
That holding leaves us with no need to decide whether
the lower court had a continuing duty to monitor Pruitt’s
competence, and for that reason I would leave the ques-
tion open. Given that the majority has gone out of its
way to foreclose such a duty, however, I write separately
to explain why, in my view, the court is wrong to do so.
   Pruitt’s case, because it survived initial screening and
culminated in a trial, demonstrates the merit of requir-
ing the district court to continually monitor an indigent
party’s competence to litigate the case pro se. To my mind,
the notion that Pruitt was able to prosecute his case
without the aid of counsel was dubious from the start:
Pruitt’s prolix complaint was, in the district court’s words,
“jumbled” and “very difficult to decipher”; Pruitt relied
on a prison law clerk to prepare his (partially) successful
memorandum in opposition to the defendants’ motion to
dismiss; and prison testing revealed that Pruitt’s basic
skills were equivalent to those of a sixth-grader. But if
there ever was any plausibility to the notion that Pruitt
could litigate this case on his own, it vanished once the
trial got underway. When Pruitt told the judge in the
first moments of the trial, “I don’t know where to begin,”
he was not kidding; everything occurring thereafter was
confirmation of that simple truth, from his incoherent
opening statement to his near-total reliance upon the judge
to elicit relevant testimony from his witnesses, including
himself. Pruitt was essentially a bystander to his own
lawsuit, and this was no more clear in the last moments of
the trial than it was in the first. There was no point in
allowing the trial to go forward under these circumstances.
What the court should have done once Pruitt’s incompe-
tence was laid bare was call a halt to the proceedings and
recruit counsel to represent him, even if that meant
declaring a mistrial.
28                                              No. 05-1620

  My colleagues in the majority do not dispute the logic of
the obligation that I advocate; instead, reasoning that
because neither due process nor one’s right of access to the
courts entitles a civil litigant to counsel, a court can have
no ongoing duty to assess an indigent’s ability to handle
the case without representation. Ante at 15-19. I abstain
from the constitutional discussion. Whether there is ever
a constitutional right to counsel in a civil case is not a
question that we asked the parties to brief, and the
existence (or not) of a duty to monitor the indigent party’s
competence to litigate the case pro se does not depend on
a constitutional entitlement to counsel. See New York
City Transit v. Beazer, 

, 582, 

,
1364 (1979) (court should refrain from reaching constitu-
tional questions unless unavoidable); National Paint &
Coatings Ass’n v. City of Chicago, 

, 1126 (7th
Cir. 1995) (“[I]f a sufficient non-constitutional ground of
decision is available, a court must begin and end there.
Constitutional adjudication is a last resort, and courts
should do what they can to decide on other grounds.”)
(citations omitted) (emphasis in original). Our supervisory
authority as a court of appeals permits us to require
the lower courts to observe “ ‘procedures deemed desir-
able from the viewpoint of sound judicial practice al-
though in nowise commanded by statute or by the Constitu-
tion.’ ” Thomas v. Arn, 

, 146-47, 

, 470 (1985) (quoting Cupp v. Naughten, 

,
146, 

, 400 (1973)); e.g., Lemons v. Skidmore,

, 356 (7th Cir. 1993); see also United States v.
Wecht, 

, 204-05 (3d Cir. 2007); United States
v. Nelson, 

, 208 (2d Cir. 2002); United States
v. Waters, 

, 944-45 (6th Cir. 1998); Rand v.
Rowland, 

, 959 (9th Cir. 1998) (en banc).
Given the great number of suits filed pro se by prisoners
and other indigent plaintiffs, the regularity with which we
see appeals that challenge a district court’s refusal to
No. 05-1620                                                  29

recruit counsel pursuant to section 1915(e)(1), and the
important role that an attorney plays in ensuring that a
party’s case is fully developed and presented, the district
court’s obligations with respect to the recruitment of
counsel are appropriate subjects for the exercise of our
supervisory powers.
  Requests for counsel typically are made by plaintiffs (as
opposed to defendants) at the outset of litigation, and at
that stage district judges frequently, and with good reason,
will deny those requests. The motions are often generic
and identify no circumstance other than the plaintiff ’s
lack of legal knowledge and ability—a disadvantage nearly
all unrepresented litigants share—in support of the
request. Many pro se suits turn out to be frivolous, and a
judge justifiably will be reluctant to solicit pro bono
assistance from the bar until she is sure that the case has
at least some potential merit. In that regard, pre-trial
motions under Federal Rules of Civil Procedure 12 and 56
serve an important screening function, disposing of the
cases that have no legal or factual basis and leaving
for trial a much smaller pool of cases in which the ser-
vices of counsel arguably can be of the greatest benefit.1
At the same time, a pro se plaintiff enjoys the benefit of
certain presumptions early on in the case—including the
assumed truth of the complaint’s factual allegations at the
pleading stage, and the bar on credibility determinations
and resolution of factual disputes at the summary judg-
ment stage—that give him a leg up. A district judge
in turn has a wealth of knowledge and experience that


1
  This is not to suggest that a district court may automatically
deny an indigent plaintiff ’s request for counsel simply because
it has not yet survived a dispositive pre-trial motion. See
Hendricks v. Coughlin, 

, 393 (2d Cir. 1997). It is
simply to say that many pro se suits have defects that are
both readily apparent and beyond the ability of an attorney to
remedy.
30                                              No. 05-1620

enables her to pierce inartfully drafted pleadings and to
identify claims that are viable. A judge may justifiably
conclude that a pro se plaintiff who can articulate the
essential nature of his injury and present his version of
the facts does not truly need the services of an attorney
in the early stages of the case.
   But once a viable claim has been identified and the
litigation moves forward, the equities of the indigent
plaintiff ’s request for counsel may well change. Those
changes may become apparent on two different fronts: the
demands that a particular case will place on the unrepre-
sented litigant, and the litigant’s demonstrated ability—
or inability—to meet those demands.
   First, as the case moves beyond the pleading stage, into
discovery, and closer to trial, the plaintiff will face an
increasingly complex set of demands. The presumptions
that aid a plaintiff in the early stages of the case begin to
drop away, and the plaintiff is obliged to gather and
present evidence in order to sustain his burden of proof.
In cases where the plaintiff himself was a witness to all
of the relevant events, his ability to prepare an affidavit
setting forth his version of events may enable him to
respond effectively to a defendant’s motion for summary
judgment and, at trial, his testimony likewise may suffice
to make the essence of his case. But where the plaintiff ’s
claim necessitates the testimony of other witnesses
(including in some cases expert testimony) or other
evidence that is not in his possession, the assistance of an
advocate may, as a practical matter, become necessary. An
incarcerated plaintiff, for example, will have unique
difficulties conducting even rudimentary discovery. And
when it comes to nuanced legal issues like qualified
immunity, deliberate indifference, and so forth, even a
relatively sophisticated litigant may find it difficult to
identify and present the right type of evidence. See Merritt
v. Faulkner, 

, 764 (7th Cir. 1983) (“Quite often
No. 05-1620                                              31

the factual and legal issues in a civil case are more
complex than in a criminal case.”). If the plaintiff man-
ages to survive a defendant’s pre-trial motions—as Pruitt
was able to do with the assistance of a prison law clerk—
trial of the case then presents him with a new and even
more daunting set of challenges, particularly where the
case is tried to a jury. There are, of course, some things
that a district judge can do in aid of the pro se litigant to
help compensate for his lack of legal expertise. Judge
Baker, for example, commendably went out of his way
to supplement Pruitt’s examination of witnesses with his
own questions, to signal Pruitt when he ought to object,
and so forth. But a judge is constrained by a duty of
impartiality, and whatever he might do to help an unrepre-
sented litigant, he cannot be that individual’s advocate.
See Pliler v. Ford, 

, 231, 

, 2446
(2004); Donald v. Cook County Sheriff ’s Dep’t, 

,
555 (7th Cir. 1996).
   Second, as the litigation progresses, the court will have
multiple opportunities to see how competent the litigant
is to present his own case. The pleadings and memoranda
that the litigant files, along with his interactions with
the court and opposing counsel at pretrial hearings and
conferences, will demonstrate the litigant’s intelligence,
verbal skills, ability to follow the court’s orders, and his
success in marshaling the facts and the law in support of
his own case. Indeed, in many if not most cases, the court’s
first-hand observations of the litigant will prove more
informative vis-à-vis his need for the assistance of counsel
than the litigant’s own section 1915 motion. There will
be those plaintiffs whose knowledge and education enables
them to comprehend the governing legal principles,
produce relevant evidence, and present a cogent case to
the court. But there will be others who reveal them-
selves to be unequal to the task for reasons that have
nothing to do with the merits of their cases.
32                                            No. 05-1620

  Nothing prevents the pro se litigant himself from asking
the judge to reconsider the denial of his request for
counsel, of course. But once the pro se litigant has been
told that his situation does not warrant the recruitment of
counsel (as Pruitt was told more than once), he under-
standably might think that the question has been decided
once and for all and that a renewed request would be both
pointless and likely to annoy the judge. Moreover, as
between the litigant and the judge, it is the judge who is
more likely to recognize that the litigant is in need of
counsel. The litigant may realize that he is floundering,
but only the court, with its legal knowledge, will realize
just how much. Indeed, a pro se litigant may think that
he has presented a compelling case, when it will be
readily apparent to the judge that the litigant either
does not comprehend the applicable legal standard or has
no idea what type of evidence is relevant to that standard.
The court is not powerless to act in such a situation even
in the absence of a renewed request for counsel. There is
an important distinction between being impartial and
being passive. See Sims v. ANR Freight Sys., Inc., 

, 849 (5th Cir. 1996); Pariser v. City of New York, 

, 433 (2d Cir. 1945) (A. Hand, J.); Ellen E. Sward,
Values, Ideology, and the Evolution of the Adversary
System, 

. J. 301, 321 n. 96 (1989). When con-
fronted with evidence that his previous ruling on a ques-
tion implicating the basic fairness of the proceedings
was wrong, the judge ought to reconsider the matter
sua sponte.
   No purpose is served in allowing a case to proceed when
the pro se litigant clearly cannot advance his own cause.
Obviously it does no justice to the litigant. It is no true
favor to his opponent either, given the inherent dif-
ficulties of litigating a case against an unrepresented
party who has little or no understanding of the substan-
tive law, let alone the rules of civil procedure and
No. 05-1620                                              33

evidence. Neither does it well serve the civil justice
system. No case is an island unto itself; every one has
potential consequences that extend beyond the individual
parties. When a plaintiff prevails in an employment
discrimination suit, for example, her victory can bring
about changes in many employers’ workplace policies;
when she does not, her loss may be construed as a vindica-
tion of employers’ current practices and discourage others
from suing. Cf. City of Riverside v. Rivera, 

,
574, 

, 2694 (1986) (“we reject the notion
that a civil rights action for damages constitutes noth-
ing more than a private tort suit benefitting only the
individual plaintiffs whose rights were violated”). At a
minimum, whatever the circumstances of an individual
case might be, that suit will often require judicial rulings
that establish precedents for the cases that follow. We rely
on the adversarial process to aid courts in producing
evidence and ascertaining the relevant facts, to articulate
the arguments for and against particular holdings, and to
anticipate the ramifications of the rules they adopt. See
In re Continental Cas. Co., 

, 295 (7th Cir.
1994); Merritt v. 

, 697 F.2d at 764. The
process is far from perfect, but to function as it is in-
tended it must in fact be an adversarial process; it is
anything but that when one side cannot competently make
his own case. And although it is tempting to discount the
jurisprudential significance of pro se litigation, experience
teaches that such cases sometimes present questions
with far-reaching consequences. See, e.g., United States v.
Georgia, 

, 

(2006) (pro se suit by
paraplegic state prisoner challenging conditions of con-
finement) (holding Title II of Americans with Disabilities
Act abrogates state sovereign immunity insofar as it
authorizes damages suit against state officials for conduct
that violates Fourteenth Amendment); Kolender v. Lawson,

, 

(1983) (pro se declaratory
34                                              No. 05-1620

judgment action challenging constitutionality of
state vagrancy statute under which petitioner had been
arrested and convicted) (declaring unconstitutionally vague
statute requiring those who loiter on or wander public
streets to provide “credible and reliable” identification and
to account for their presence when asked to do so by
police).
   For these reasons, I believe that a district court has
an ongoing responsibility to monitor a pro se litigant’s
conduct of the litigation and to sua sponte reconsider the
litigant’s request for counsel when the court realizes that
the services of a lawyer are essential to a full and fair
hearing of the litigant’s claim. In satisfaction of that
obligation, a conscientious judge will be proactive in
managing the case, holding regular status hearings and
taking such other steps as are necessary to satisfy herself
that the unrepresented party both understands his
obligations as a litigant and is capable of meeting them.
Cf. Schilling v. Walworth County Park & Planning Com’n,

, 277 (7th Cir. 1986) (district court “should at
least warn a pro se litigant of the possible consequences
of any neglect” in litigating case); Lewis v. Faulkner, 

, 102-03 (7th Cir. 1982) (pro se prisoner-plaintiff
must be warned in plain English of consequences of fail-
ing to respond properly to defendant’s motion for sum-
mary judgment).
  This is not to say that a court’s decision not to recruit
counsel will be judged in hindsight based on information
unknown to the court at the time of its decision. Ante at
20-21; Farmer v. Haas, 

, 322 (7th Cir. 1993).
A district judge is not expected to be omniscient or clair-
voyant. When a judge reasonably concludes based on the
evidence available to her that an indigent party is com-
petent to litigate a case pro se, her decision to deny a
request for counsel will be sustained on appeal as a
permissible exercise of her discretion. Thus, if a pro se
No. 05-1620                                              35

litigant has proven competent in questioning witnesses
during discovery and has been articulate in arguing his
case to the court at pre-trial hearings, a judge might
legitimately conclude that the litigant does not require
the aid of counsel at trial. The fact that the litigant
subsequently loses the trial, perhaps in part due to his
own mistakes, will not call into question the propriety of
the court’s decision to deny him counsel. But a judge
may not bury her head in the sand and ignore evidence
that the pro se litigant lacks the ability to organize and
present his case. She may not summarily conclude that
the litigant does not need counsel when she lacks a basis
on which to make an informed assessment of that need.
Nor, in my view, may she conclude (however justifiably) in
an early stage of the case that the litigant can handle
things competently without representation and simply
assume that her conclusion will hold true for the remain-
der of the case. As the litigation proceeds from one stage to
another, the court ought to re-consider, in light of the
indigent litigant’s lengthening track record, whether the
litigant is up to the demands of the next stage of the case.
If the court has reason to believe he is not, it is time to
reconsider the denial of the litigant’s section 1915 motion.
It is the judge who allows the case to move forward
without making such an inquiry, or who ignores the
signs of a litigant’s incompetence, whose exercise of
discretion (or failure to exercise such discretion) is at
peril of being reversed on appeal.
  All of this is common sense, of course, and many
judges take such steps already. But given the relentless
pressure of a busy docket, the number of frivolous suits
that are filed by pro se plaintiffs, and a natural reluctance
to dip into the pro bono well too often for assistance, a
court may on occasion be too quick to dismiss a litigant’s
request for counsel. Requiring, rather than simply en-
couraging, courts to continue evaluating the unrepresented
36                                              No. 05-1620

litigant’s need for counsel as the case progresses is a
way to avoid the kind of wholesale failure of the ad-
versarial process that occurred in this case. That obligation
I submit, is implicit in “ ‘the well-established duty of the
trial court to ensure that the claims of a pro se litigant are
given a fair and meaningful consideration.’ ” Donald v.
Cook County Sheriff ’s 

, 95 F.3d at 555 (quoting
Palmer v. City of Decatur, 

, 428-29 (7th Cir.
1987) (collecting cases)).

A true Copy:
      Teste:

                        ________________________________
                        Clerk of the United States Court of
                          Appeals for the Seventh Circuit




                   USCA-02-C-0072—10-3-07