entertaining a motion to appoint counsel must at the very least consider the issues that are raised by the plaintiff in support of that request and that there directly on that request that is especially true when the plaintiff raises an issue that ca serious doubt upon his competence to litigate a constitutional claim without the assistance of counsel and the district court does not consider that issue that is an abuse of discretion as several of this court's cases have held that is exactly what happened here my client mr mccarthy raised the fact that he had been transferred to a new prison facility after the violations occurred so that all of the documents and the defendants and and the witnesses that had seen what happened and some of these violations were back a facility he had no means to conduct any discovery any investigation on those points the district court denied his repeated requests for counsel without even considering that issue an issue that this court has again recognized in numerous cases is a very important issue that bears very directly on whether plaintiff has the ability to litigate a case and so we think for that reason alone that warrants a reversal of the decision below that does not require breaking any new ground court's precedents there already several cases that they reach the same result it's a very narrow result particularly because my client also has several other features that he raised that make this a fairly unique case if he had a reading level of fifth grade which is lower than the court in pruitt recognized made plain if they're very ill equipped to deal with the type of case that we have here which is a deliberate and differ this case especially once that case proceeds to the summary judgment stage  where there are live factual disputes about what happened where there's a need for advanced that a geisha tasks including discovery interviewing witnesses taking depositions up defendants things of that nature and responding to a summary judgment motion by professional lawyers on the other side which the average layperson is not very well equipped to do particularly when they're incarcerated particularly when they have so mr dick pound how does a man educated mentally ill plaintive prisoner with a fifth grade reading level put together the materials that he put together in his initial filings here which included not only a complaint but a full package of use that there can be a tendency to treat the help of very talented volunteer lawyers such as to call this court has recruited from within the person of you in your firm  to help out in prisoner cases as if it were a free and unlimited good outside of major metropolitan areas that is rarely the case and we have here  prisoner who has been filing many lawsuits over the years who has previously had the help of appointed or recruited child sold in other cases  and at some point i would think a district judge has discretion to say you know i don't think so on on this one we have limited resources i don't see serious injuries in this case this is not one where we need to take the full constitutional kruse certainly agree with that the district court does have a large measure of discretion i think at the very least the district judge must explain that reasoning and consider th factors that are present in the case and i think you know if a judge were to say something like that that would be a different case in this court would then have a some basis to review that i would point out on the limited resources point that under section one hundred fifteen mr judge does not have any coercive power to sort of conscript lawyers and you know that is a right so they can request and there are cases where a judge makes or question makes in attempts and is unable to find counsel and that is not something that can be held against the dish we had are required to it one point and i don't think it w this case falls into place where the prisoner of selfishness is supposed to make an effort to find counsel correct that still exists except in cases where it's i'm able to do so in this case the record reflects that my client wrote to three different attorneys he did he did it and he saw it and did not receive any agreements to do that and so the state hasn't raised that for good reason because that requirement was was met here you know well this is strictest possible compliance with the local rules governing summary judgment so that what evidence there was in the record including difficult on the law that where the district court fails to explain its reasoning and consider some of the factors that bear directly on their point counsel request i mean if i may turn to the prejudice in court just for a minute we think it's clear that the district court's decision below turned on its finding that the lack of compliance meant it could ignore all of the facts that would have been testified to by my client and instead take all of the defendant's testimony as true even though the defendants were the ones who were seeking summary judgment so we think that on for that reason alone a lawyer would not have made that mistake in terms of the citation and the court would have been required to recognize a genuine issue of disputed fact and even beyond that we think that a tourney would have engaged in basic discovery an investigation such as deposing the witnesses and deposing the defendants in the case of the facts turned on whether what the defendant said was true and there was not even an attempt to depose the defendant so we depend on your budget and we just were listening to an extended argument in the number two case today about where we're going to move the economics of civil rights litigation and costs and budgets can be pretty you know pretty restrictive that's true although i think deposing the defendants when the core issue in the case is a factual dispute about what the defendants did and whether what the defense lawyers say is true i think deposing defendants would be a relatively inexpensive way and basic how many thousands of dollars do you think that would cost here  i don't have that information in my fingertips but i think five figures for getting them all i understood your honor but we don't the less think that even without the discovery issues the citation of the issue of the material that was already in the record would have been sufficient to survive here that the judge applied that standard to facts from the record the first two requests for counsel came early in the case and the judge relied on the pleadings the motions the documents in support of the american junction he had written to three lawyers and i got no response this is outside the briefing i googled those three lawyers one is retired one has no practice in the relevant court the other one does have a practice but did not respond so he did make an attempt it was prior to his first request wait on a suggestion that the defendants did not fully respond to discovery or that they were less than forthcoming on some points that came up for the first time reply it's not briefed the discovery responses are outside the record but i want to the point that think that those are mischaracterizations of the discovery responses that were made here there's governor responses are not on an appeal they're not part of the record i just asked the court not make a decision on this case based on these arguments you know one of the points that mr discretionary decision cases the case number like i hear is patent that was brief is that a district court need not mechanically list all the factors or address every argument now the another court does have to properly consider relevant factors certainly is exercise a discretion one very important factor is the apparent litigants ability to litigate the case based on his filings before the court and so the district court here acknowledge mr mackay's arguments and also went on to to to it was a response of those findings of fact he did not say record sixty eight this is proposed findings of fact which is the same back and forth procedure of how summary judgment works in these courts and he did cite evidence and third i don't think it should be taken necessarily as an error oversight that that the facts set forth by the defendants here were not responded to with factual allegations that we may get to prejudice here but  might help his case two points in response run or he did secure evidence from witnesses he simply did there in the record or said in the brief they were used in support of his motion for summary judgment and again the cases are clear to be inquiry is not what someone else might have done it's whether this person was competent to litigate the case i do know we could speculate i couldn't tell you whether different private defense attorney might have expended the resources to conduct depositions in this  what a different attorney might have done is just not the inquiry and what's on appeal here which is the discretionary decision to not to not recruit pointed counsel did i understand maybe i've got this confuses case is he a frequent litigator betty yes not as frequent as some but but yes the frequent litigator yes and where did the mental illness come into play during this course  indicate expressly anywhere the district judge is familiarity with that record of litigation the only thing i can think of i think the most direct answer may be no he does at one point respond to an argument that mr mckay made mr mckay said he had been appointed counsel in prior cases sort of suggesting that he should be here as well and yes briefly here on the prejudice from the record indicates that the defendants did respond to mr magara circumstances in threats in each event responsibly and certainly not with  deliberate indifference at times he did things like have conversations with him about his feelings about his future and when things escalated when it was appropriate that took the most of your actions which is to conduct so extract ins and place him in restraint did not take the actions that he wanted when he requested there were times when he said at the outset as a first course of action he wanted to be put in restraints it's not deliberate indifference to not go to level ten responds to a threat of self harm immediately the defendants here when those action became pro create did take those actions but it is not the test of deliberate indifference is not whether the defendant did not take the actions that mr mccall requested at the outset you know that's all the points that i want to make this morning i have to answer any other questions thank you very much think your honor just a few quick points on the bottle like my friend on the opposing side relied on the fact that the district court took into account the pleadings that had been filed as a basis for rejecting the request for counsel and say that that was not responsive to mr because requests for counsel for all of the reasons that he needed counsel at every judgment stage of litigation which included you know the investigation stage the depositions all of the factual discovery that he needed to do none of the filings he made up to that point had any bearing on those crucial issues in the fact that he'd been transferred to a new facility which this court has noted multiple times is a very serious problem and it also didn't have any bearing on the more complex summary judgment tasks that needed to be accomplished which this court has said previously is a level of difficulty that is increased from the initial pleading stage when it did what it is mental illness to come to the fore in one respect and while he was incarcerated i mean obviously he was diagnosed with  disputes that stand between him and relief in this case and the very serious reasons to think that in a jury trial he may be able to convince the jury that his constitutional rights were violated so regardless of the fact that he may have filed other claims these