Cody Michael Roberts v. Andrew James Jezuit

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted August 31, 2022*
Decided September 7, 2022
Before
FRANK H. EASTERBROOK, Circuit Judge
AMY J. ST. EVE, Circuit Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
No. 21-3022
CODY MICHAEL ROBERTS,
Plaintiff-Appellant,
v.
ANDREW JAMES JEZUIT, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Western District of Wisconsin.
No. 20-cv-187-jdp
James D. Peterson,
Chief Judge.
O R D E R
District courts have broad discretion in deciding whether to recruit counsel for
pro se litigants. Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en banc). But in rare
cases when the district court abuses that discretion, and the litigant was prejudiced by
the lack of counsel, we must remand. Id. at 659–60. This is one of those cases. Wisconsin
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. F ED. R. A PP . P. 34(a)(2)(C).
NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with F ED. R. APP . P. 32.1

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inmate Cody Roberts lost his lawsuit at trial after the district court denied his motions
to recruit counsel. Because the court failed to consider whether Roberts could handle
the complexities of a trial, and Roberts establishes that the lack of counsel prejudiced
what appears to be a strong claim of excessive force against a prison guard, we vacate
the judgment with respect to that claim and remand for further proceedings.
One night in 2019, guards removed a belligerently drunk Roberts from his cell.
Video footage shows that they cuffed his hands behind his back and strapped him into
a chair, restricting any movement of his torso, arms, and legs. At one point, six guards
in full protective gear surrounded Roberts. One of them, Andrew Jezuit, bent over to
remove the straps so that Roberts could be searched, and Roberts tried unsuccessfully to
head-butt Jezuit. In response, Jezuit lifted his head to look at Roberts. Then, as another
guard moved to restrain Roberts’s head, Jezuit lunged towards Roberts and drove his
elbow into Roberts’s head. Blood from two cuts spread across Roberts’s forehead. The
Wisconsin Department of Corrections fired Jezuit for using “excessive force” and
“intentionally inflicting harm” on Roberts. Jezuit was also criminally charged for
misconduct in public office, see WIS . S TAT. 946.12(2), and obtained a deferred-
prosecution agreement, in which he admitted to committing that crime.
Although Roberts did not remember anything from that night, he soon found out
about the incident from the guards. One guard, Jason Koehn, asked how Roberts’s ribs
were, told Roberts to let him know when “round two” would be, and suggested that
Roberts would get 20 more years in prison for the head-butt. Sheldon Best, Koehn’s
supervisor, told Koehn to stop talking to Roberts. Later that night, Koehn returned to
Roberts’s cell and smiled at him.
Roberts sued numerous prison officials under 42 U.S.C. § 1983, but after the
district court screened the complaint and granted certain defendants’ motion for
summary judgment, only the claims against Jezuit, Koehn, and Best remained. Roberts
alleged that Jezuit used excessive force, Koehn psychologically harassed him, and Best
failed to intervene to prevent that harassment—all in violation of his rights under the
Eighth Amendment.
About three months before trial, Roberts twice asked the district court to recruit
an attorney for him. He argued that although his case was strong, he could not
adequately present it because he has a learning disability, he lacked access to a
computer, and prison staff were interfering with his letters to the jailhouse lawyer who
had been assisting him. In denying the motions, the court explained that the case was

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not too difficult for Roberts to manage on his own: his claims were not legally complex,
he could explain the facts to the jury, and he had shown so far that he could manage the
litigation. The court remarked that the other obstacles Roberts cited are common for pro
se litigants and that he “should not need to conduct legal research to present his claims
at trial.” The court supplied the parties with its lengthy written trial-preparation order.
As relevant here, the court explained when defendants, but not plaintiffs, can move for
judgment as a matter of law under Rule 50 of the Federal Rules of Civil Procedure. The
case proceeded to a two-day jury trial.
After Roberts presented his case-in-chief, the district court granted the
defendants’ joint Rule 50(a) motion only with respect to Best. In explaining why Jezuit
was not entitled to judgment as a matter of law, the court stated that “the strike to the
head [was] not designed to alleviate the danger of headbutting” like “restraining the
head would have been.” (The court had also remarked earlier that it was “utterly
beyond dispute” that Jezuit intended to strike Roberts.) The jury returned a verdict in
favor of Jezuit and Koehn, and Roberts did not move for any relief.
On appeal, Roberts argues that the district court abused its discretion when it
denied his motions for recruitment of counsel. He contends that his lack of
representation caused problems at trial because he could not “comprehend as a regular
person would.”
Pro se litigants lack a constitutional or statutory right to recruited counsel in
federal civil litigation. Pruitt, 503 F.3d at 649. The decision whether to recruit counsel
under 28 U.S.C. § 1951(e)(1) is left to the district court’s broad discretion. Id. at 654. But
because the number of available pro bono lawyers pales in comparison to the countless
requests for counsel that courts receive each day, district courts “are placed in the
unenviable position of identifying, among a sea of people lacking counsel, those who
need counsel the most.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). Mindful of
the hard choices district courts face, “we have resisted laying down categorical rules”
requiring counsel for certain stages of litigation, such as trial. Pruitt, 503 F.3d at 656.
Rather, when deciding whether to recruit counsel, district courts must ask if “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.
Then, in reviewing a district court’s decision, we ask “not whether we would
have recruited a volunteer lawyer in the circumstances, but whether the district court
applied the correct legal standard and reached a reasonable decision based on facts

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supported by the record.” Id. at 658. In some unusual cases, such as this one, we must
remand because the district court overlooked an important consideration. In doing so,
we stress that our holding is narrow and creates no new obligations for district courts,
nor any rule that trials necessitate recruited counsel.
We first recognize that Roberts’s excessive force claim was uncharacteristically
strong. A video recording shows that Jezuit elbowed Roberts while he was strapped
into a chair, handcuffed, and surrounded by other guards. The Wisconsin Department
of Corrections also fired Jezuit after determining that the elbow strike constituted
excessive force. And Jezuit even conceded that he committed the Wisconsin crime of
misconduct in public office—a crime he presumably would not be guilty of if, as he
contended during this litigation, he struck Roberts reflexively. We recently clarified that
district courts may consider the strength of a pro se litigant’s case when deciding
whether to recruit counsel. See Watts v. Kidman, 42 F.4th 755, 761 (7th Cir. 2022). Here,
considering the strength of Roberts’s excessive-force claim would have tipped the scales
in favor of recruiting counsel for him.
Turning to the inquiry we set forth in Pruitt, we are not confident that the district
court fully considered whether Roberts could handle an event most civil litigants never
reach: a jury trial. We emphasize again that pro se litigants are not entitled to counsel
every time they reach trial. Pruitt, 503 F.3d at 649. But as we explained in Walker v. Price,
courts must at least consider whether litigants can manage a trial. 900 F.3d 933, 938–39
(7th Cir. 2018). As in Walker, the court here considered only the simplicity of the
plaintiff’s claims and not his ability to carry out the many complicated tasks associated
with trial. See id. Even in a straightforward case, a trial presents unique challenges
because “conducting witness examinations, applying the rules of evidence, and making
opening statements are beyond the ability of most pro se litigants to successfully carry
out.” Perez v. Fenoglio, 792 F.3d 768, 785 (7th Cir. 2015). For that reason, the district
court’s assurance that Roberts need not conduct research was not quite accurate. True,
he knew the facts of the case, but just like the pro se litigant in Walker, he also needed
some familiarity with how to establish the elements of his claims, and with the rules of
evidence and procedure. See Walker, 900 F.3d at 939.
The district court also failed to consider that, to succeed on his excessive-force
claim under the Eighth Amendment (which governs when the alleged victim is a
prisoner), Roberts had to prove that Jezuit intended to cause him pain. See Wilkins v.
Gaddy, 559 U.S. 34, 37 (2010); Hudson v. McMillian, 503 U.S. 1, 7 (1992). Unlike a claim
under the Fourth Amendment, which is measured by an objective standard, Roberts’s

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claim included a subjective inquiry into Jezuit’s state of mind. See Kingsley v.
Hendrickson, 576 U.S. 389, 402 (2015). And we have observed that prisoners may be ill-
equipped to litigate claims involving a defendant’s state of mind because “even a
relatively sophisticated litigant may find it difficult to identify and present the right
type of evidence.” James v. Eli, 889 F.3d 320, 327–28 (7th Cir. 2018) (quoting Pruitt, 503
F.3d at 664 (Rovner, J., concurring)).
We have held that the Fourth Amendment applies to prisoners in limited
contexts, see Henry v. Hulett, 969 F.3d 769, 779 (7th Cir. 2020) (en banc), but we have
never held that the Fourth Amendment applies to excessive-force claims made by
prisoners and thus avoids the need to prove any defendant’s state of mind. Whether to
extend Henry is a question on which counsel could have provided assistance. It is
evident that Roberts could not handle that issue by himself. Nor was Roberts equipped
to contend that Jezuit’s criminal conviction entitled him to prevail, without the need for
trial, on a theory of claim or issue preclusion (res judicata or collateral estoppel).
Further, the district court should have addressed whether Roberts’s performance
in earlier stages demonstrated the capabilities he needed at trial, especially given his
lack of access to legal help in prison. We reiterated in Walker that courts must consider a
plaintiff’s ability to prosecute a case independent of assistance he previously received
from fellow inmates. 900 F.3d at 940–41; McCaa v. Hamilton, 893 F.3d 1027, 1033 (7th Cir.
2018). But here, informed that Roberts’s access to assistance within the prison had been
cut off, the court relied on Roberts’s performance at the pretrial stage without
explaining how he could continue successfully on his own at trial.
Roberts is entitled to relief now only if he was prejudiced by the lack of counsel.
See Pruitt, 503 F.3d at 659. He need not demonstrate that he would have won his case,
just that counsel could have strengthened the presentation of his case in a manner
“reasonably likely to alter the outcome.” Id. at 660. In his brief, Roberts lists examples of
prejudice (he says they are non-exhaustive) that are by themselves unpersuasive, but
his overall contention that he was prejudiced has merit, at least regarding the excessive-
force claim against Jezuit.
First, given the strength of Roberts’s excessive-force claim, an attorney would
have been reasonably likely to file a compelling motion for summary judgment. See F ED.
R. C IV. P. 56(a). That lawyer would have been armed with clear video evidence of Jezuit
striking a restrained Roberts, the Wisconsin Department of Corrections’ determination
that Jezuit committed excessive force, and Jezuit’s admission that he committed

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criminal misconduct. The lawyer also would have considered whether any issue
decided in Jezuit’s criminal prosecution had preclusive effect in this case.
Second, for the same reason, counsel representing Roberts would have been
likely to make and succeed on a motion for judgment as a matter of law during trial.
See F ED. R. C IV. P. 50(a), 50(b)(3). As the district court instructed the jury, Roberts had to
show that Jezuit (1) intentionally used force on him, (2) for the purpose of harming him
and not in a good faith effort to maintain or restore order, and (3) caused injury. Each
element was almost surely met. The district court opined that the first element was
“utterly beyond dispute” (after the defense argued that the claim turned on that
element). The court later declined to rule for Jezuit under Rule 50 based on its
conclusion that Jezuit did not strike Roberts to restore order. And the third element
would be satisfied by proving the use of force sufficient to cause pain, which could be
inferred from the power of the strike and the blood covering Roberts’s forehead. But
Roberts likely was unaware that he could move for judgment as a matter of law; the
court told him he need not conduct legal research, and the judge referred to such
motions only by defendants. Further, as the appellees point out, by failing to make that
motion, Roberts waived an appellate challenge to the sufficiency of the evidence.
See S.E.C. v. Yang, 795 F.3d 674, 680 (7th Cir. 2015).
Third, Roberts’s presentation at trial was sorely lacking. See Pruitt, 503 F.3d at
661. That counsel would have performed better is not enough to show prejudice. Mejia,
988 F.3d at 420. Our review of the trial record, however, persuades us that Roberts’s pro
se status hampered him considerably. Not only was Roberts disorganized and often
redirected by the court, but he also failed to question Jezuit on key points. He did not,
for example, challenge Jezuit’s testimony that the strike was an unintentional reflex
even though Jezuit took the time to lift his head and look at Roberts before elbowing
him. Nor did Roberts probe how Jezuit could have intended to restore order with the
blow when Roberts was strapped into a chair and surrounded by five other guards, one
of whom was moving to restrain his head. See Walker, 900 F.3d at 941 (plaintiff
prejudiced by poor cross-examinations). And, in his extremely short closing argument,
Roberts simply described the challenges of representing himself and did not once
mention his claim against Jezuit. See Pruitt, 503 F.3d at 661 (plaintiff prejudiced by poor
closing argument).
On the other hand, we cannot see any way in which the denial of Roberts’s
motions for counsel prejudiced his substantially weaker claims against Koehn and Best.

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We therefore VACATE the judgment in favor of Jezuit and REMAND for proceedings
consistent with this opinion; the balance of the judgment is AFFIRMED.

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