severe injuries mr jenkins sued certain corrections officers alleging that they failed to protect him from a known threat by allowing a group of inmates to dispense vigilante doesn't i just ask you one thing counsel you say to a known threat my review o the record suggests that there was no such thing no none of the officers knew anything about it your client specifically denied there was a problem when he first had been assaulted how can they protect him when he never told them there was a threat isn't isn't that a condition precedent to any kind of finding in this case what with respect your honor i think looking at the trial court record and that's what the defendants do in their brief they look at the trial court record and that to begin with is the inappropriate inappropriate and great the key thing in this case is that mr duncan was denied counsel as a result was a separate issue and that is correct but that is the reason why looking at the trial court record is not the appropriate men's advisory council to dispense discipline after an altercation on august second two thousand and five but even looking at the pretrial record what was the evidence that they had knowledge of the threat here so  conference mr jenkins explained that one of his witnesses michael benton would have testified so as to go back and this is all in the record in that hearing mr jenkins after he was assaulted returned to prison the pleasant valley prison and he was immediately placed in administrative segregation another inmate in administrative segregation with him with michael bent michael benton explained to mr jenkins that while he was in ad sec as they call it he had spoken opponent there's testimony in the record there's really there's i think it's been undisputed throughout this case and sergeant bradford's pacifically testified to this that you are three zero three to three or four that lieutenant perry spoke to the men's advisory council statement of a part that there was the assault right the only question is whether it was authorized well yeah but as to the question of hearsay if this coming if the question about whether this comes in then the question is whether he's admitting to the crime he's admitting to an assault on beaten that is the best evidence in the record in the pretrial record you have to rely on the record were a court of appeal correct or what is what in the record is there besides simeon for a moment that what you just talked about is in the record what other evidence is there that pot is the prison officials to a knowledge prior to the beating that this was going to work erm so that they could arguably have been willfully indifferent authorization on august second the very next day nearly is brutally assaulted the very next day after that jenkins is literally assaulted and then the last part of this we have mr jenkins is testimony that when he was  then when he went up to lieutenant perry's office after his assault he recalls that sergeant shalaby and walked in and said oh i see they already got to him and that's and that was the and and then he goes to the hospital so that's what we have i mean it could have fundamentally altered the entire basis of this case and that's why looking at a post hoc looking at the record as it exists is an inappropriate inquiry for assessing whether it was appropriate at the time that mr jenkins made his request to a decision the discussion was that's correct or so would be just to judge you know if that time by the record other than that this is a rather simple assault wasn't too complicated he'd already work with this individual he'd gone through pre trial as he followed it pretty well i don't i'm having trouble having sat as a district judge seeing this is an abuse of discretion of what he knew at that time so at the time that the district court  his claims pro se and didn't didn't this judge do just that mean you're client turns out to be a pretty remarkable lawyer he did this summary judgment quite well he had a series of evidentiary requests and the judge gave  food told me he would do that and then when it came time to talk about the trial he discouraged him from representing himself but he said like you know because if you're going to do this i'll work with you looks to me like he really bent over backwards recognizing that your client was pro se but having demonstrated some pretty remarkable legal ability at that point that the judge did the best he could carrying out your client's express requests which you discourage to do given the abuse of discretion standard that my colleague has just referred to how how how can what the district judge in this setting be an abuse of discretion so a couple things on that first your honor is i think i understand your question that mr jenkins main expressed request to represent himself that throughout mr jenkins repeatedly he repeatedly requested counsel he did not want to represent himself and the record reveals a series of inconsistency series of inabilities throughout this case i mean your honor pointed to his motion for summary judgment if you'll see his reply which was filed on time and so was and consider he actually in accordance with that reply you filed a statement of disputed facts so prison transfers mr jenkins well before any discovery orders well before any active litigation in august in february of two thousand and six the first transfer in august of two thousand and eight the second transfer mr jenkins  true in a lot of prisoner cases that that the prisoner or the witness gets transferred i can't speak to a lot of cases i know this case and i know that this is been a factor that the seventh circuit has repeatedly recognized and in fact most recently in jr versus andersen and we  cite in our brief a seven twenty four x thirty eight twelve seven circuit from two thousand and thirteen the seventh circuit stated that a prisoner's inability to investigate facts by virtue of the remoteness of the prison from essential evidence is a familiar grounds for regarding counsel as indispensable the effective prosecution you still need likelihood of success and we get back to the problem that as of the pretrial record and the track record for that matter but as of the pretrial record there was just no evidence that was admissible that the officers knew that there was this or otherwise that suggested any testimony from either of these two men that he wanted to call would have had the slightest bearing on what the prison officials knew is the record clear that they did not know any such thing they were good they were prepared to talk about the assault to see what happened but then you know anything about the mindset or knowledge of the prison vision in that fair i disagree or i again i think a record that disputed but i think bent example in right this court appointed counsel where there were genuine issues and there quote will be a trial and johnson this court appointed counsel noting that the case had cognize of all claims in solis this court reversed the district court's decision ordered reconsideration problems by getting this evidence and they knew what was doing was going on and in fact they not only knew it but they caused it by giving this rogue group the opportunity of being the police force in the prison that's his argument and so what's your response if they'd had a lawyer appointed that there would be to change of circumstance but my first response to supper response is one  matter is what benton allegedly was told was that the administration quote unquote given permission to clean the yard up i think those were the words that mr jenkins used to trial the administration is case the trial but even if the court were to look back at the at the record before the trial record the fact the matter is there isn't even anything more specific pretrial the best evidence was actually developed a trial by in me by mr jenkins in the colloquy between jenkins and magistrate judge back at trial and and that's when he said well this is what benton knew he was told by this particular inmate that the administration quote unquote told him to clean it up the other record evidence any of the defendants this and jenkins said no and i can go ahead and provide a direct cite for that particular exchange so even if the court looks whether this court looks at the record pretrial or the court looks at mr jenkins jenkins did have a reasonable likelihood of success but didn't feel confident that he could win a summary judgment no your honor because quite frankly it's not that difficult to create a triable issue of fact that all it has to come down to is really whether there's testimony that goes either way and then the jury has to go in the sense that it doesn't really go to the exceptional circumstances it might be a relevant factor obviously for the exceptional circumstances test but this court has s exceptional circumstances means exactly that it doesn't just mean any run of the mill cases and i can tell you from experience that a lot of in many cases are tried pro se in these in district because they have so many in many cases rules within the federal rules of evidence and it was there was no such evidence that he could provide at in his summary judgment motion he could make these allegations about what he what the administration allegedly knew but when it came down to trial and then he had to they were what he basically had was a theory of the case but there's no evidence that's been pointed out that any other individual would have provided evidence that would have made his showing on the knowledge prong of the deliberate indifferen counsel thank you cards just a few points first of all start with the waiver issue there is no waiver on the appointment of counsel as for the waiver on the exclusion of witnesses with respect that that argument i second it seemed we are not appealing the rule fifty judgement we are not saying that mr jenkins should have succeeded at trial based on the facts introduced at trial we are saying this case involves two issues not the rule fifty judgment involves the appointment of counsel and to the exclusion of these witnesses and the fact is i can't speak to counsel's experience but a tiny number of these cases go to trial and unlike virtually all in other in by my colleague if not we thank you so your counsel right correct and we thank you for your service in this case i think our pro bono counsel program is the best in the united states we have every time that we've had a case where we can't pay a lawyer and we request the bard to come forward the bar has responded and your argument was excellent and this person was properly represented and we've brought