Miguel Rico v. John Howe

United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted April 4, 2025*
Decided June 24, 2025
Before
DIANE S. SYKES, Chief Judge
CANDACE JACKSON-AKIWUMI, Circuit Judge
JOSHUA P. KOLAR, Circuit Judge
No. 24-1175
MIGUEL RICO,
Plaintiff-Appellant,
v.
JOHN HOWE,
Defendant-Appellee.
Appeal from the United States District
Court for the Central District of Illinois.
No. 21-cv-1228
Joe Billy McDade,
Judge.
O R D E R
Miguel Rico, an Illinois prisoner, sued John Howe, a correctional officer, for
allegedly violating his rights under the Eighth Amendment. See 42 U.S.C. § 1983. Citing
Rico’s competence to litigate, the district judge twice denied Rico’s requests to recruit
counsel, and, after Rico repeatedly failed to comply with orders regarding Howe’s
discovery requests, the judge dismissed the suit with prejudice. Because the district
* 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NONPRECEDENTIAL DISPOSITION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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No. 24-1175 Page 2
court failed to consider Rico’s allegation that there was a material change in his ability
when denying Rico’s second motion to recruit counsel, and the lack of counsel
prejudiced Rico, we reverse and remand for the district court to reconsider Rico’s
request for an attorney.
In 2021, Rico, a prisoner at Pontiac Correctional Center in Illinois, was on suicide
watch. Rico alleges that Howe and another officer watched him cut his wrists with a
metal object and refused to help him or to call a crisis team until a third officer
intervened. Rico also alleges that when he returned to his cell after receiving medical
care, Howe gave him shoes with laces and mocked Rico for not killing himself; Rico
later attempted to hang himself in his cell with a shoelace.
After filing suit, Rico filed his first motion to recruit counsel. In that motion, Rico
asked for recruitment of counsel because he was unable to afford an attorney,
unsuccessfully attempted to obtain pro bono counsel through contacting law firms
known to engage in pro bono efforts, had only an 8th grade education, was not fluent in
English and could only submit his filings with the assistance of another inmate, and
inmates were unable to access the law library due to COVID restrictions. The district
judge found that Rico had reasonably tried to find counsel but denied the motion
because Rico appeared competent to litigate the case himself. The judge acknowledged
Rico’s limited education and that English was not Rico’s primary language, but the
judge also found that Rico’s claim was not complex relative to his education level and
skills, and turned on facts of which he had personal knowledge. See Pruitt v. Mote,
503 F.3d 647, 649 (7th Cir. 2007) (en banc).
Discovery proceeded and was contentious. In April 2023, Howe filed a motion to
compel, asserting that Rico had not served his initial disclosures, violating a scheduling
order. The judge granted the motion and ordered Rico to comply. The next month,
Howe filed a second motion to compel, arguing that Rico’s responses to Howe’s first set
of discovery requests were incomplete and unresponsive. The judge granted the
motion, ordering Rico to respond fully and to file a notice of compliance with the court.
Three weeks after the judge entered this order, Rico moved again for counsel. He
argued that he was forced to take “heavy medication” that made him “unable to
function to deal with any legal issues on his own.” The judge denied this second motion
for counsel “for the reasons stated in prior orders denying counsel” in a text order. The
docket entry explained that Rico’s “pleadings indicate that he is competent to respond
to discovery” and that Rico “should answer [Howe’s] questions as directly as he can.

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No. 24-1175 Page 3
That is all the Court expects.” Rico subsequently responded to the first set of discovery
requests.
A few weeks later the judge warned Rico that his conduct risked dismissal.
Howe had filed a third motion to compel, asserting that Rico was refusing to answer a
second set of discovery requests. Before ruling, the judge noted Rico’s history: The
judge had found it necessary to order Rico to comply with discovery requests “twice”;
ordered Rico to file a notice of compliance (an order that remained unmet, “despite the
Court’s urging”); and “had rejected [Rico’s] excuse for noncompliance,” “encourag[ing
him] to put forth his best efforts … , all to no avail.” The judge warned Rico that he
could face “dismissal of this action” if he failed to comply with the judge’s prior orders
before a hearing set for later that month to resolve the motion to compel.
The next hearing did not resolve the discovery dispute. The parties agreed that
Rico had complied with the first set of discovery requests but disputed whether he had
complied with the second set. In response, the judge scheduled a status conference for
the next month, directed Howe to file his second set of discovery requests and Rico’s
responses, and allowed Rico to file anything relevant to Howe’s motion to compel.
Howe filed the documents that the judge requested; Rico filed nothing. At the follow-up
status conference, Rico reiterated (under oath) that until recently he had been taking
medicine that rendered him unable to respond to discovery requests and swore that he
was now able to respond. The judge granted Howe leave to submit a supplemental
interrogatory to Rico about the medication that he had taken.
After three months passed without any further filings from either party, the
judge dismissed the case with prejudice as a discovery sanction. See F ED. R. C IV.
P. 37(b)(2)(A)(v). The judge found that Rico’s responses to Howe’s second request for
documents were “sparse (at best)” and his responses (“unable to answer”) to Howe’s
second set of interrogatories, were “entirely unacceptable.” The judge recounted that he
previously ordered Rico to answer discovery “to the best of his ability,” which “is the
lowest possible” obligation. But, the judge found, Rico’s “unwillingness” to give “even
the most basic” responses, after the judge ordered him to “make an effort” or face
dismissal, was not “inadvertent.” In deciding to dismiss the case with prejudice, the
judge relied on the totality of Rico’s discovery noncompliance, explaining that his tardy
responses to the first set of discovery requests, caused “serious inconvenience” to Howe
and the court, and reflected “willfulness, bad faith, and fault.”
On appeal, Rico challenges the dismissal of his suit as a discovery sanction and
the denial of his motions to recruit counsel. Because we deem it necessary to reverse the

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No. 24-1175 Page 4
ruling on Rico’s second motion to recruit counsel, we do not reach the question of
sanctions.
We review the denial of a motion to recruit counsel for abuse of discretion. Pruitt,
503 F.3d at 658. In doing so, we ask “(1) has the indigent plaintiff made reasonable
efforts to retain counsel or been effectively precluded from making such efforts” and if
so, “(2) given the difficulty of the case, did the plaintiff appear competent to litigate it
himself, and (3) if not, would the presence of counsel have made a difference in the
outcome.” Id. at 654 (cleaned up). In cases where there are multiple motions for
recruitment of counsel, we have found abuse of discretion where the district judge
failed to consider the changed circumstances of a prisoner’s ability to litigate their case.
See Eagan v. Dempsey, 987 F.3d 667, 684–87 (7th Cir. 2021) (abuse of discretion where
district judge failed to consider changed circumstances of prisoner’s ability to litigate
case); see also James v. Eli, 889 F.3d 320, 328 (“A trial court can also abuse its discretion
when it overlooks essential evidence or fails to consider relevant factors.”) (cleaned up).
At the same time, we have noted that once a district judge resolves a recruitment of
counsel motion, the judge need not revisit the issue in repetitive motions to recruit
counsel that offer no additional grounds for relief. See Thomas v. Anderson, 912 F.3d 971,
978 (7th Cir. 2018). This simply acknowledges the commonsense notion that no litigant
can expect a court to devote judicial resources to issues already disposed of, yet courts
will consider changed circumstances where appropriate.
The district judge’s ruling on Rico’s first motion was entirely consistent with our
case law. There, the district court noted—as we have previously—that finding an
attorney to take cases without pay is difficult. Olson v. Morgan, 750 F.3d 708, 711 (7th
Cir. 2014). To be sure, attorneys have an obligation to their profession and often take
pro bono assignments. Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 310 (1989)
(Kennedy, J., concurring). However, courts can only ask attorneys to accept pro bono
prisoner litigation. Pruitt, 503 F.3d at 654. In his first ruling, the judge explicitly and
reasonably ruled that (1) Rico had satisfied his obligation to try to find an attorney
himself, and (2) even though English was not his primary language and he had a
limited education, Rico could still litigate his claim because it was simple and turned
only on his personal knowledge. See id. at 654–56 (encouraging holistic review of pro se
litigant’s characteristics and complexity of case in determining need for counsel).
Regarding the second motion for counsel a year and a half later, Rico contends
that the judge overlooked his argument that he was not able to litigate his case because
of his “heavy medication.” We agree. In a text order, the district court denied Rico’s

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No. 24-1175 Page 5
second motion “for the reasons stated in prior orders denying counsel.”1 However,
Rico made no mention of his medical difficulties in his first request for counsel, and,
thus, the judge’s previous denial understandably never addressed that concern. While
“[n]ot every cognitive limitation will require” recruitment of counsel, the district court
“should have considered” how his heavy medication affected his ability to litigate the
case. Walker v. Price, 900 F.3d 933, 940 (7th Cir. 2018) (Barrett, J.). Because the district
court should have, but did not, analyze Rico’s medical condition in its second denial,
we find the court acted outside of its discretion. Eagan, 987 F.3d at 684.
Moreover, the denial cannot be saved by the district court stating that Rico’s
“pleadings indicate he is competent to respond to discovery” because Rico had
previously alerted the court that a jailhouse lawyer assisted him with his filings. We
have consistently held that when another inmate assists a pro se prisoner, the district
court must assess the abilities of the plaintiff himself irrespective of the capabilities of
an unlicensed inmate. See, e.g., Henderson v. Ghosh, 755 F.3d 559, 565 (7th Cir. 2014)
(“First, the fact that an inmate receives assistance from a fellow prisoner should not
factor into the decision whether to recruit counsel.”); Walker, 900 F.3d at 940–41 (finding
abuse of discretion for failing to analyze litigant’s capacity apart from jailhouse lawyer).
When a plaintiff’s “competency may not have been entirely his own ... courts must
‘specifically examine’ a plaintiff's ‘personal ability to litigate the case, versus the ability
of the jailhouse lawyer’ who assisted the plaintiff.” McCaa v. Hamilton, 893 F.3d 1027,
1033 (7th Cir. 2018) (quoting Dewitt v. Corizon, Inc., 760 F.3d 654, 658 (7th Cir. 2014)).
Moving to prejudice, “there is a reasonable likelihood that the recruitment of
counsel would have made a difference in the outcome of the litigation.” Dewitt, 760 F.3d
at 657. Critically, the judge dismissed Rico’s case based on the totality of Rico’s
noncompliance with discovery orders. Recall, the district court granted two motions to
compel against Rico during the time Rico claims he was on tranquilizing medication.
That previous noncompliance formed a core basis for the district court’s finding of
“willfulness, bad faith, and fault,” which motivated dismissal. But had the district court
recruited counsel in light of Rico’s medical difficulties, we think it reasonably likely
Rico could have strengthened his case through discovery and “avoid[ed] common”
pitfalls in responding to discovery that led to the ultimate sanction. Pruitt, 503 F.3d at
660 (discussing how unrepresented plaintiff was prejudiced because attorney would
have assisted in how to answer deposition questions).
1 Despite referring to “orders,” the docket reflects Rico only filed one previous
request for counsel.

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To be sure, we do not hold that any pro se litigant who demonstrates a repeated
and stubborn refusal to answer basic interrogatory requests can claim prejudice because
an attorney would have persuaded him out of such fallacy. But that is not this case.
First, despite Rico’s claimed medical issues, it is undisputed that he did eventually
respond to Howe’s first set of interrogatories, setting Rico apart from the irredeemably
contumacious litigant. Second, and more importantly, the lion’s share of Rico’s
noncompliance occurred when he claims he was medically limited. We cannot say an
attorney would be able to assist a litigant dead-set on defying discovery requests. But
the same is not true for one whose significant medical difficulties account for much of
the noncompliance. For a medically impaired litigant “unfamiliar with the requirements
and techniques of discovery,” an attorney may be the necessary lifeline. Pruitt, 503 F.3d
at 660.
The district judge on remand will first consider the recruitment of counsel issue.
After determining whether it is appropriate to recruit counsel, Howe may renew any
motions and Rico can respond, either with or without counsel. We end with a reminder
that we have not decided the issue of whether the district court must recruit counsel.
That is a decision best left for the district judge, who can view Rico and assess the
credibility of any new medical claims, among other issues.
REVERSED and REMANDED

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