Kenneth Rhodes v. David Werries

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted November 20, 2024*
Decided November 21, 2024
Before
FRANK H. EASTERBROOK, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
JOHN Z. LEE, Circuit Judge
No. 23-2488
KENNETH RHODES,
Plaintiff-Appellant,
v.
DAVID WERRIES, et al.,
Defendants-Appellees.
Appeal from the United States District
Court for the Central District of Illinois.
No. 19-3278
Jonathan E. Hawley,
Magistrate Judge.
O R D E R
Kenneth Rhodes, a prisoner at Western Illinois Correctional Center, appeals the
denial of several motions to recruit counsel in a case that he lost after a jury trial. He
seeks a new trial with recruited counsel. But having a lawyer would not have made a
* 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NONPRECEDENTIAL DISPOSITION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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difference when Rhodes first asked for one. And the district court acted reasonably in
denying Rhodes’s later motions.† We therefore affirm.
According to his complaint, Rhodes awoke to correctional officers passing out
breakfast trays in his housing unit. One of the officers, Lieutenant William Davis,
opened Rhodes’s cell door, and Rhodes approached for his tray. At some point,
Rhodes—who is in his 70s and has trouble standing without assistance—placed his
hand in the frame of the cell door to steady himself. He accepted the tray, but before he
could remove his hand from the door frame, David Werries, another correctional
officer, allegedly “slammed” the cell door and “smashed” Rhodes’s middle finger.
When Rhodes yelled out that his finger was stuck in the door, Werries and Davis
allegedly mocked and laughed at him and delayed opening the door to free his hand.
Eventually, another officer opened the door and escorted Rhodes to the infirmary.
Rhodes was then sent to an outside hospital, accompanied by two more
correctional officers, Timmber Totsch and Ricky Smith. An orthopedic surgeon
evaluated and treated the injury. The surgeon recommended a metal splint to
immobilize the finger. But, Rhodes alleged, Totsch and Smith informed the surgeon that
Western does not allow prisoners to have metal objects—even though exceptions may
be made in cases of medical necessity. Rhodes instead received a plastic splint, which he
says inhibited his healing.
Rhodes, after attempting to resolve his concerns about these events through the
prison’s grievance system, sued Davis, Werries, Totsch, and Smith for their roles in
causing the injury and interfering with his treatment. The district court screened
Rhodes’s complaint, see 28 U.S.C. § 1915A, and granted him leave to proceed on claims
that (1) Werries used excessive force when he shut the door on Rhodes’s fingers;
(2) Davis failed to intervene in Werries’s use of force; and (3) Totsch and Smith were
deliberately indifferent to Rhodes’s serious medical need. At this time the court also
denied Rhodes’s first motion to recruit counsel because Rhodes had not demonstrated
attempts to find his own lawyer.
The defendants moved for summary judgment on the ground that Rhodes failed
to exhaust his administrative remedies. Based on Rhodes’s response, the district court
† Three judges ruled on the motions: the district judge who screened the
complaint, the next assigned district judge, and the (then) magistrate judge, who
presided over the trial and ruled on the final motion. Having noted this distinction, we
simply refer to “the district court” in this order.

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No. 23-2488 Page 3
determined that the prison’s handling of Rhodes’s grievance had rendered the
administrative process unavailable and denied the defendants’ motion. The deadline for
further dispositive motions passed without action from either party. When the
defendants later requested leave to file a second motion, the court denied the request as
untimely and set the case for trial.
Throughout this time, Rhodes repeatedly renewed his request that the court
recruit counsel for him. Rhodes’s motions explained that he was unable to represent
himself because he lacked legal expertise and litigation experience, had limited access to
the prison’s law library, suffered from post-traumatic stress disorder, and was on
psychotropic medication. Rhodes expressed concern that his limitations would cause
the court to get annoyed or frustrated with him. He also explained that his filings had
been prepared with the help of a jailhouse lawyer. Each time (before and after the
defendants moved for summary judgment), the court concluded that Rhodes was
capable of representing himself because he had personal knowledge of the facts, he had
been able to adequately convey those facts to the court, he could use discovery to obtain
evidence supporting his claim, and the case did not appear overly complex.
Rhodes’s final motion to recruit counsel came shortly before trial; he reiterated
his previous reasons and added that, at a trial, he would lack the assistance of his
jailhouse lawyer. Addressing the motion at the final pretrial conference, the district
court acknowledged that the case had entered a different stage and that Rhodes had
received assistance in preparing his previous filings, but it concluded that he was able
to continue litigating the case. The court confirmed that the two fact witnesses Rhodes
had properly disclosed—fellow prisoners who were present on the day of his injury—
would be available by videoconference and concluded that Rhodes could manage that
process. The court also explained that the case was not too complex for Rhodes, because
each claim hinged on facts about which he could personally testify (“what happened as
it relates to the injury to your finger, what the injury was and any damages that you
have related to that injury”). And Rhodes would not need medical testimony because
the fact and severity of his injury were not in dispute. The court observed that Rhodes
had “conducted [himself] very well” and had provided “very cogent responses,” and it
assured Rhodes that it would guide him to the extent allowed.
At trial, Rhodes told the jury his account of what happened on the morning he
injured his finger—essentially, testifying to the facts in his complaint. Rhodes also
called the two other prisoners, and they corroborated his account. When the defendants
and other defense witnesses testified, Rhodes cross-examined them. At the close of trial,

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the jury returned a verdict in favor of the defendants on all claims. Rhodes appeals the
verdict based on the district court’s refusal to recruit counsel for him.
Before discussing the merits of Rhodes’s appeal, we must ensure that our
jurisdiction is secure. Rhodes contends that he did not file the only notice of appeal that
appears in the record—he believes that the district court filed this notice sua sponte to
prevent him from seeking post-trial relief. If Rhodes (the only party with the right to do
so) did not file a notice of appeal, then we would not have jurisdiction to consider this
appeal: A timely notice of appeal is a jurisdictional requirement in a civil case.
See 28 U.S.C. § 2107(a); Bowles v. Russell, 551 U.S. 205, 214 (2007). But the notice of appeal
bears Rhodes’s electronic signature and the address of the prison where he’s
incarcerated. And his immediate prosecution of the appeal—seeking leave to appeal in
forma pauperis, moving for the preparation of transcripts at no cost, and ultimately
paying the filing fee—is inconsistent with this appeal being unintentional, as is his filing
a brief on the merits. Indeed, when the defendants moved for entry of a bill of costs,
Rhodes mentioned in his response that he had appealed. And if, implausibly, someone
else filed a notice of appeal without Rhodes’s consent, he has demonstrated that he was
capable of advising us of the mistake instead of proceeding to briefing. We are thus
satisfied that there is a properly filed notice of appeal giving us jurisdiction.
As for the merits, Rhodes argues that the district court abused its discretion
when it denied his last five motions to recruit counsel. (He does not contest the court’s
denial of his first motion.) As relevant here, courts considering whether to recruit
counsel ask whether the plaintiff appears competent to litigate the case, given its factual
and legal complexity. Pruitt v. Mote, 503 F.3d 647, 654–55 (7th Cir. 2007) (en banc). We
will reverse the denial of a motion for counsel only if the district court abused its
discretion and it is reasonably likely that the presence of counsel would have changed
the outcome of the case. Bracey v. Grondin, 712 F.3d 1012, 1016–17 (7th Cir. 2013); Pruitt,
503 F.3d at 659.
None of the decisions here warrants reversal. With respect to Rhodes’s earliest
motions, he suffered no prejudice from their denial because he prevailed at summary
judgment by challenging the defendants’ motion with admissible evidence. As for the
remaining motions, the court reasonably applied the standard we set out in Pruitt. As
trial approached, the district court did not overlook the advanced stage of the
proceedings or the complexities of trial practice, cf. Walker v. Price, 900 F.3d 933, 938–39
(7th Cir. 2018) (Pruitt standard requires consideration of procedural stage), nor the fact
that Rhodes had assistance up to that point, cf. id. at 940–41 (“[T]he court needed to

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evaluate [plaintiff’s] capacity independent of any unofficial or jailhouse assistance he
may have received.”). Still, it observed that Rhodes knew the facts of the case and was
able to present them effectively, considered those abilities in light of the complexity of
the case, and reasonably concluded that Rhodes’s success at trial would depend upon
his ability to convince the jury that his account of the facts was what actually happened.
See Mejia v. Pfister, 988 F.3d 415, 419–20 (7th Cir. 2021).
Rhodes raises one additional argument concerning the partial grant of the
defendants’ bill of costs. But an appeal of that decision required a separate notice of
appeal. See Ackerman v. Nw. Mut. Life Ins. Co., 172 F.3d 467, 468 (7th Cir. 1999);
see also Peck v. IMC Credit Servs., 960 F.3d 972, 974 (7th Cir. 2020) (order of costs
appealable separately from merits). This appeal was filed before the district court ruled
on the bill of costs, so we do not have jurisdiction to consider that collateral issue.
AFFIRMED

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