### In the



# United States Court of Appeals

For the Seventh Circuit

____________________

No. 14

‐ 1204

C RAIG A. C HILDRESS

, Plaintiff

‐ Appellant

,

v.

R OGER E. W ALKER

, J R

., et al.

, Defendants

‐ Appellees

.

____________________

Appeal from the United States District Court for the

Southern District of Illinois.

No. 3:12

‐ cv

‐ 01230

‐ JPG

— J. Phil Gilbert

, Judge

.

____________________

A RGUED F EBRUARY 20, 2015

— D ECIDED M AY 21, 2015

____________________

Before R IPPLE

, K ANNE

, and T INDER

, Circuit Judges

.

R IPPLE

, Circuit Judge

. Craig Childress brought this action

under 42 U.S.C. § 1983 against numerous administrators and

individuals affiliated with the Big Muddy River Correctional

Center (“BMRCC”) in Ina, Illinois. He alleged that those in

‐

dividuals had violated his rights under the Eighth Amend

‐

ment and the Due Process Clause of the Fourteenth

Amendment. Specifically, he claimed that, upon completion

of a prison

‐ sponsored reentry program, the program instruc

‐2 No. 14

‐ 1204

tor delivered a computer disk containing Mr. Childress’s re

‐

sume to the property officer, who in turn placed it in

Mr. Childress’s property box.

Mr. Childress later was discharged on mandatory super

‐

vised release (“MSR”); one of the terms of his release was

that he could not possess any computer

‐ related material.

Following his release, a routine inspection of his living quar

‐

ters revealed the envelope containing the computer disk,

and his release was revoked.

After serving his extended sentence, Mr. Childress, act

‐ ing pro se, filed this action. The district court, on initial re

‐

view under the Prison Litigation Reform Act (“PLRA”), 28

U.S.C. § 1915A, dismissed the suit. On reconsideration, the

court determined that Mr. Childress was not a prisoner

within the meaning of the PLRA but that his action never

‐

theless should be dismissed on in forma pauperis review

pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

The district court’s dismissal of Mr. Childress’s com

‐ plaint was premature. His complaint set forth sufficient facts

to proceed against at least one of the defendants. Moreover,

he should have been granted the opportunity to amend his

complaint to cure any deficiencies in the remainder of his

claims. Finally, the district court failed to consider adequate

‐ ly Mr. Childress’s request to recruit counsel. For these rea

‐

sons, we reverse the court’s judgment and remand the case

for further proceedings.No. 14

‐ 1204 3

I

BACKGROUND 1

A.

While Mr. Childress was serving a sentence at BMRCC

for attempted aggravated sexual assault, he participated in a

Lifestyle Redirection Program. The three

‐ week program is

intended to assist inmates with reentry into the community

and with finding employment. Defendant Danalyn Wilson is

the program instructor. It is the “policy, practice, and proce

‐

dure” of the program to provide each participant with a

hardcopy of the participant’s resume and cover letter and to

forward a computer disk with those materials to the BMRCC

property room. 2 This practice is known to BMRCC adminis

‐

trative staff. Consistent with this practice, when

Mr. Childress completed the program on August 10, 2010, a

computer disk containing his cover letter and resume was

sent to the property room to be placed with his other belong

‐ ings.

Mr. Childress was released from custody on August 19,

2010. One of the conditions of his release was that he not

“possess[]

... computer related items.” 3 Upon his release,

1 Because Mr. Childress’s complaint was dismissed for failure to state a

claim, we accept as true all facts alleged in his complaint and all reason

‐

able inferences therefrom. See, e.g.

, Citadel Grp. Ltd. v. Wash. Reg’l Med.

Ctr

., 692 F.3d 580, 591 (7th Cir. 2012). Moreover, because his complaint

was pro se, we construe it liberally and hold it to less stringent standards

than pleadings drafted with the assistance of counsel. Erickson v. Pardus

,

551 U.S. 89, 94 (2007).

2 R.1 at 9.

3 Id. at 20.4 No. 14

‐ 1204

Mr. Childress was provided with his personal property, in

‐ cluding an envelope that contained the computer disk from

the Lifestyle Redirection Program. The sealed envelope did

not bear any markings that indicated or suggested that it

contained a computer disk.

Fifteen days later, on September 3, 2010, agents of the Il

‐

linois Department of Corrections (“IDOC”) conducted an

inspection of Mr. Childress’s immediate living area. During

that inspection, they discovered the still unopened envelope

containing the computer disk from the Lifestyle Redirection

Program. Mr. Childress was taken into custody for violating

the conditions of his release. He initially was housed at the

Statesville Correctional Center but, on November 16, 2010,

was transferred back to BMRCC. When Mr. Childress ar

‐

rived at BMRCC, he was greeted by the Assistant Warden of

Programs, Ty Bates, who told Mr. Childress that there had

been two other incidents in which inmates had been taken

back into custody after follow

‐ up inspections uncovered

computer disks associated with prison programs. The fol

‐ lowing month, Mr. Childress’s MSR was revoked following

a hearing.

B.

After Mr. Childress served his criminal sentence, he was

detained at the Treatment and Detention Facility in Rush

‐

ville, Illinois, an institution administered by the Illinois De

‐

partment of Human Services to house individuals held pur

‐

suant to Illinois’s Sexually Violent Persons Commitment Act,

725 ILCS 207/1

‐ 99. On December 3, 2012, while at Rushville,

Mr. Childress filed the present action, alleging that the pris

‐No. 14

‐ 1204 5

on administration’s practice of placing computer disks in

inmates’ property subjected him to an unnecessary risk of re

‐

incarceration in violation of the Eighth Amendment and of

the Due Process Clause of the Fourteenth Amendment. He

named as defendants several IDOC directors, wardens of

BMRCC, and other individuals affiliated with the Lifestyle

Redirection Program. 4 Mr. Childress also filed a motion for

leave to proceed in forma pauperis and a motion to appoint

counsel. One week later, Mr. Childress filed a second motion

for appointment of counsel.

On February 20, 2013, the district court dismissed

Mr. Childress’s complaint for failure to state a claim and de

‐

nied all pending motions (including the motions to appoint

counsel) as moot. The district court explained that it was re

‐ quired under the PLRA “to conduct a prompt threshold re

‐

view” of the merits of Mr. Childress’s claim. 5 In undertaking

this analysis, it was unable to conclude that any defendant

knew that the placement of the computer disk in

Mr. Childress’s property would violate the conditions of his

release. “At most,” the court continued, “Plaintiff’s allega

‐

tions indicate that the placement of the computer disk in his

property could have been a negligent act. A defendant can

never be held liable under § 1983 for negligence.” 6 Addition

‐

4 The IDOC directors named as defendants are S.A. Godinez,

Gladyse Taylor, Michael Randle, and Roger Walker; the wardens named

are John Evans, Robert Hilliard, William Peyton, and Ty Bates; other

prison personnel named are Angela Winsor and R. G. Eubanks. Ms. Wil

‐

son, the Lifestyle Redirection Program instructor, also is named as a de

‐

fendant, but is employed by Rend Lake College, not the BMRCC.

5 R.7 at 2.

6 Id. at 3.6 No. 14

‐ 1204

ally, Mr. Childress “had exclusive control over his property

items and could have easily found the computer disk. In

‐

deed, it appears from the complaint that he knew he would

be given the disk upon completion of the Life Style program,

since he states that this was the regular practice.” 7 Further

‐

more, even if Ms. Wilson had violated Mr. Childress’s rights

by giving him the computer disk, the court explained that

this would not translate into liability on the

part of the wardens, IDOC Directors, or other

Defendants in supervisory positions. The doc

‐

trine of respondeat superior is not applicable to

§ 1983 actions; to be held individually liable, a

defendant must be “personally responsible for

the deprivation of a constitutional right.” [ 8 ]

The district court therefore dismissed Mr. Childress’s com

‐ plaint with prejudice, indicated that the dismissal would

count as a “strike[]” under the provisions of 28 U.S.C.

§ 1915(g), and ordered the clerk to close the case and enter

judgment in favor of the defendants. 9 It denied the remain

‐ ing motions as moot.

Mr. Childress then filed a motion seeking to alter, set

aside, and vacate the judgment under Federal Rule of Civil

Procedure 59(e). He argued that he was not a prisoner for

purposes of the PLRA, and that, therefore, the district court

should not have subjected his complaint to PLRA pre

‐

7 Id.

8 Id. at 4 (quoting Sanville v. McCaughtry

, 266 F.3d 724, 740 (7th Cir.

2001)).

9 Id. at 5.No. 14

‐ 1204 7

screening. Mr. Childress also maintained that there were er

‐

rors in the district court’s substantive analysis and requested

that he be permitted to amend his complaint.

The district court granted in part and denied in part

Mr. Childress’s motion. The court agreed that Mr. Childress

was not a prisoner for purposes of the PLRA. Nevertheless,

because Mr. Childress had sought leave to proceed in forma

pauperis, his complaint was subject to review under 28

U.S.C. § 1915(e)(2), which requires the court to dismiss any

in forma pauperis action that “fails to state a claim on which

relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). The

court therefore reexamined the pleadings and found “no er

‐

ror in its conclusion that the factual allegations did not indi

‐

cate that any Defendant’s conduct rose to the level of uncon

‐

stitutional deliberate indifference.” 10

Mr. Childress filed a timely notice of appeal.

II

DISCUSSION

On appeal, with the assistance of counsel, Mr. Childress

submits that the district court committed several errors. He

first maintains that his complaint did state a claim, and,

therefore, it should not have been dismissed under 28 U.S.C.

§ 1915(e)(2)(B)(ii). Even if his complaint were deficient in

some manner, Mr. Childress contends that the district court

should have granted him leave to amend. Finally,

10 R.16 at 6.8 No. 14

‐ 1204

Mr. Childress argues that the district court committed legal

error in failing to consider his motion to appoint counsel.

A.

We turn first to the allegations of his complaint.

Mr. Childress submits that he stated a claim for violations of

his substantive and procedural due process rights under the

Fourteenth Amendment as well as for violations of the

Eighth Amendment.

Mr. Childress’s primary argument on appeal is that the

defendants’ actions violated his substantive due process

rights. The Supreme Court has stated, however, that plain

‐

tiffs should resort to the substantive guarantees of the Due

Process Clause for relief only when there is not “a particular

Amendment [that] provides an explicit textual source of

constitutional protection against a particular sort of govern

‐

ment behavior.” Cnty. of Sacramento v. Lewis

, 523 U.S. 833,

842 (1998) (internal quotation marks omitted); accord Arm

‐

strong v. Squadrito

, 152 F.3d 564, 569 (7th Cir. 1998) (quoting

Cnty. of Sacramento

, 523 U.S. at 842). The Eighth Amendment

is the primary source of constitutional protection for incar

‐

cerated individuals. See, e.g.

, Ingraham v. Wright

, 430 U.S. 651,

664–68 (1977) (describing the history of the Eighth Amend

‐

ment and noting that “[t]he primary purpose of [the Cruel

and Unusual Punishments Clause] has always been consid

‐

ered, and properly so, to be directed at the method or kind

of punishment imposed for the violation of criminal stat

‐

utes” (second alteration in original) (internal quotation

marks omitted)). Consequently, we evaluate Mr. Childress’s

complaint under the standards of the Eighth Amendment.No. 14

‐ 1204 9

A plaintiff states a claim for an Eighth Amendment viola

‐

tion if he is detained in jail for longer than he should have

been due to the deliberate indifference of corrections offi

‐

cials. See Burke v. Johnston

, 452 F.3d 665, 667 (7th Cir. 2006)

(observing that the plaintiff’s allegations that “he was de

‐

tained in jail longer than he should have been due to the ‘de

‐

liberate indifference and delay’ of DOC officials,” “if proved,

would establish a violation of Burke’s Eighth Amendment

right to be free from cruel and unusual punishment”); Camp

‐

bell v. Peters

, 256 F.3d 695, 700 (7th Cir. 2001) (holding that

the plaintiff’s allegations that he had been imprisoned too

long due to the deliberate indifference of prison officials

stated a claim for a violation of the Eighth Amendment).

Here, Mr. Childress maintains that the defendants’ deliber

‐

ate indifference resulted in the deprivation of his liberty in

‐

terests because the defendants “knew that the conditions of

his release prohibited him from possessing computer

‐ related

materials, but that they nevertheless placed, or condoned a

policy which caused to be placed, a computer disk in his exit

property in a sealed envelope.” 11

The State, on behalf of the defendants, 12 perceives no er

‐

ror in the district court’s approach. It contends that the

touchstone of deliberate indifference is subjective awareness:

it is not sufficient to allege that the correctional officers

should have recognized a risk; rather, they personally must

have perceived and ignored the risk. In the State’s view,

11 Appellant’s Br. 28 (citations omitted).

12 Because the district court dismissed the action without any responsive

pleadings by the defendants, we invited the Attorney General of Illinois

to participate in the briefing. We thank the Attorney General for her

submission on their behalf.10 No. 14

‐ 1204

there is no evidence, however, that the BMRCC administra

‐

tive staff knew of this practice or knew the potential conse

‐

quences that it had for Mr. Childress. Moreover, the State

continues, there are only two people who personally partici

‐ pated in the placement of the computer disk in

Mr. Childress’s possessions: (1) Ms. Wilson, the instructor of

the Lifestyle Redirection Program, and (2) the BMRCC prop

‐

erty

‐ room officer—a nondefendant—who placed the disk

with Mr. Childress’s property. Mr. Childress did not allege

that Ms. Wilson was aware of the conditions of his parole;

therefore, the State concludes, Ms. Wilson could not have

known that placing the disk in his possessions put his MSR

in jeopardy. Accordingly, the State maintains that the district

court did not err in dismissing Mr. Childress’s complaint.

The State—like the district court—misapprehends both

the bases for § 1983 liability and the substance of Mr. Chil

‐

dress’s allegations. Although the State and the district court

are correct that an individual must be personally responsible

for a constitutional deprivation in order to be liable, personal

responsibility is not limited to those who participate in the

offending act, here placing the disk with Mr. Childress’s

property. Liability extends to those who, having a duty un

‐

der the Constitution to the plaintiff, “‘act[] or fail[] to act

with a deliberate or reckless disregard of plaintiff’s constitu

‐

tional rights.’” Brokaw v. Mercer Cnty.

, 235 F.3d 1000, 1012

(7th Cir. 2000) (quoting Smith v. Rowe

, 761 F.2d 360, 369 (7th

Cir. 1985)). Liability can also attach “’if the conduct causing

the constitutional deprivation occurs at her direction or with

her knowledge or consent.’” Id. (quoting Smith

, 761 F.2d at

369); Black v. Lane

, 22 F.3d 1395, 1401 (7th Cir. 1994) (quoting

same); see also Lewis v. Downey

, 581 F.3d 467, 472 (7th Cir.

2009) (noting, in the context of an excessive force claim, thatNo. 14

‐ 1204 11

an officer is personally responsible, and thus liable under

§ 1983, if he knows about another’s constitutional violation,

has a realistic opportunity to prevent it, but deliberately or

recklessly fails to do so); Fisher v. Lovejoy

, 414 F.3d 659, 662

(7th Cir. 2005) (reiterating that “a prison official may be lia

‐

ble ‘only if he knows that inmates face a substantial risk of

serious harm and disregards that risk by failing to take rea

‐

sonable measures to abate it’” (quoting Farmer v. Brennan

,

511 U.S. 825, 847 (1994)). In the case of those responsible for

setting policy, liability will result from the institution of a

“policy that, when enforced, causes a constitutional depriva

‐

tion.” Brokaw

, 235 F.3d at 1013; Butera v. Cottey

, 285 F.3d 601,

605 (7th Cir. 2002). Thus, allegations that a prison adminis

‐

trator knew that the conditions of a prisoner’s mandatory

release included a ban on computer

‐ related material, but

nevertheless instituted, condoned, or willfully turned a blind

eye to a practice that placed computer

‐ related material

among prisoners’ possessions, state a claim for relief under

the Eighth Amendment.

These are the precise allegations that Mr. Childress sets

forth in his complaint. He alleges that there is a regular prac

‐

tice of placing computer disks with inmates’ property. 13

Moreover, he alleges that prison administrators knew of this

practice and knew that this practice put at least some recent

‐ ly released prisoners in jeopardy of losing their freedom, but

nevertheless did not alter, change, or otherwise intervene to

prevent the harm. Specifically, on his return to BMRCC in

November 2010, Assistant Warden Bates admitted to

13 See R.1 at 9 (“The policy, practice, and procedure of said program[’]s

curriculum was to provide

... a floppy computer disk which was for

‐

warded to the property room

... .”).12 No. 14

‐ 1204

Mr. Childress that two other inmates had been re

‐

incarcerated on the basis of “the same policies, practice, and

procedures regarding floppy disk[s] associated with institu

‐

tional programs being placed in the outgoing property of

inmates by IDOC Employees.” 14

While acknowledging that these statements have to be

accepted as true, the State argues that they “fall far short of

establishing that Bates or any other defendant disregarded a

substantial risk of harm to Childress.” 15 Specifically, the

State maintains that they do not establish that Assistant

Warden Bates knew about the practice of the Lifestyle Redi

‐

rection Program or that he knew about the conditions of

Mr. Childress’s release.

We cannot accept this argument. To survive dismissal, a

plaintiff’s complaint “need only ‘give the defendant fair no

‐

tice of what the

... claim is and the grounds upon which it

rests.’” Erickson v. Pardus

, 551 U.S. 89, 93 (2007) (quoting Bell

Atl. Corp. v. Twombly

, 550 U.S. 544, 555 (2007)). “Specific facts

are not necessary

... .” Id. Here, Mr. Childress alerts Assis

‐

tant Warden Bates to his claim and to the basis of that claim:

Assistant Warden Bates, as “Assistant Warden of Pro

‐ grams,” 16 was familiar with the practices of the Lifestyle Re

‐

direction Program; he knew that the practices of the Lifestyle

Redirection Program, or of similar programs, were causing

recently released inmates to lose their freedom, but did noth

‐ ing to prevent this harm; indeed he “continued to adhere to[]

14 Id. at 10.

15 Att’y Gen.’s Br. 16.

16 R.1 at 10.No. 14

‐ 1204 13

and follow these same policies, practices, and procedures all

to the detriment and deprivation of the plaintiff[’]s Constitu

‐

tional Rights.” 17 These allegations satisfy the notice pleading

requirement of Federal Rule of Civil Procedure 8(a)(2).

B.

Whether these allegations are sufficient to state a claim

against other members of the BMRCC administrative staff is

a question that we need not reach at this juncture because

we conclude that the district court abused its discretion in

denying Mr. Childress leave to amend his complaint. See

Bausch v. Stryker Corp.

, 630 F.3d 546, 561 (7th Cir. 2010) (“We

review the district court’s denial of a request to vacate the

judgment and for leave to file an amended complaint under

an abuse of discretion standard.”).

In Luevano v. Wal

‐ Mart Stores, Inc.

, 722 F.3d 1014 (7th Cir.

2013), we held that, when a court dismisses a complaint sua

sponte on in forma pauperis review, the court must allow

that plaintiff the same opportunity to amend his complaint

as a fee

‐ paying plaintiff would have received. See id

. at 1022–

23. We outlined the contours of a plaintiff’s right to amend

in Bausch

. We explained that,

[a]s a general matter, Rule 15 ordinarily

requires that leave to amend be granted at least

once when there is a potentially curable prob

‐

lem with the complaint or other pleading. A

plaintiff is entitled to amend the complaint

once as a matter of right, Fed. R. Civ. P. 15(a),

17 Id. at 11.14 No. 14

‐ 1204

and a court should “freely give leave [for a par

‐

ty to file an amended complaint] when justice

so requires.” Fed. R. Civ. P. 15(a)(2). A district

court may deny leave to file an amended com

‐ plaint in the case of “undue delay, bad faith or

dilatory motive on the part of the movant, re

‐ peated failure to cure deficiencies by amend

‐

ments previously allowed, undue prejudice to

the opposing party by virtue of allowance of

the amendment, [and] futility of amendment.”

However, while a court may deny a motion for

leave to file an amended complaint, such deni

‐

als are disfavored. As we said in Foster [ v.

DeLuca

, 545 F.3d 582, 584 (7th Cir. 2008)],

“[d]istrict courts routinely do not terminate a

case at the same time that they grant a defend

‐

ant’s motion to dismiss; rather, they generally

dismiss the plaintiff’s complaint without prej

‐

udice and give the plaintiff at least one oppor

‐ tunity to amend her complaint.”

Bausch

, 630 F.3d at 562 (second, third, and fifth alterations in

original) (citation omitted); see also Alioto v. Town of Lisbon

,

651 F.3d 715, 721 (7th Cir. 2011) (“[A] motion to dismiss un

‐

der Rule 12(b)(6) is not a responsive pleading and so, if an

answer has not been filed, a plaintiff ordinarily retains the

ability to amend his complaint once as a matter of right,

even after a court grants a motion to dismiss.”). Had the

court followed the appropriate course, therefore, Mr. Chil

‐

dress should have been allowed to amend his complaint

against the remaining defendants to aver more specifically

their knowledge of the practices of the Lifestyle RedirectionNo. 14

‐ 1204 15

Program as well as their knowledge of the conditions of

Mr. Childress’s release.

Here, following the district court’s initial review under

the PLRA, it not only dismissed the complaint, but also en

‐

tered judgment against Mr. Childress. “Once final judgment

has been entered in a case, ‘the district court lacks jurisdic

‐

tion to entertain a motion for leave to amend the complaint

unless the plaintiff also moves for relief from the judg

‐

ment.’” Foster

, 545 F.3d at 584 (quoting Camp v. Gregory

, 67

F.3d 1286, 1289 (7th Cir. 1995)).

We confronted a similar situation in Foster

. There, as

here, the district court dismissed the complaint and entered

judgment in favor of the defendants without affording the

plaintiff the opportunity to amend the complaint. The plain

‐

tiff, like Mr. Childress, filed an unsuccessful motion to alter

the district court’s judgment under Federal Rules of Civil

Procedure 59(e) and 60(b), coupled with a motion for leave

to file an amended complaint. See id. at 583. 18 In evaluating

the district court’s actions in Foster

, we noted that

[r]elief under Rules 59(e) and 60(b) are

extraordinary remedies reserved for the excep

‐

tional case, and “the mere desire to expand al

‐ legations of a dismissed complaint does not, by

itself, normally merit lifting the judgment.” Yet

the district court left the plaintiff with little re

‐

course

... because it simultaneously granted

the defendants’ motion to dismiss and termi

‐

nated the case.

18 Mr. Childress’s motion invoked only Rule 59(e), and his request to file

an amended complaint appeared in his Rule 59(e) motion.16 No. 14

‐ 1204

Id

. at 584 (citation omitted) (quoting Camp

, 67 F.3d at 1290).

In Foster

, we determined that the district court’s premature

dismissal, coupled with its failure to “provide any explana

‐

tion for why it denied the motion to amend” constituted an

abuse of discretion. See id. at 584–85.

In the present case, the district court’s denial of

Mr. Childress’s Rule 59(e) motion was not completely bereft

of explanation. The court acknowledged that it had proceed

‐

ed under the incorrect statute, but nevertheless determined

that, applying the standards of 28 U.S.C. § 1915, the same

result obtained: “Having re

‐ examined the pleadings, the

Court finds no error in its conclusion that the factual allega

‐

tions did not indicate that any Defendant’s conduct rose to

the level of unconstitutional deliberate indifference.” 19 As

we have demonstrated, however, in its initial assessment of

Mr. Childress’s complaint, the district court read his allega

‐

tions too narrowly and also employed a cramped under

‐ standing of the scope of § 1983 liability. The “district court’s

application of an erroneous view of the law is by definition

an abuse of discretion.” Am. Civil Liberties Union of Ill. v. Al

‐

varez

, 679 F.3d 583, 589 (7th Cir. 2012) (internal quotations

marks omitted). The district court, therefore, abused its dis

‐

cretion in denying Mr. Childress’s Rule 59 motion, which

included his request to file an amended complaint.

C.

Lastly, we turn to Mr. Childress’s claim that the district

court should have recruited counsel to act on his behalf. On

19 R.16 at 6.No. 14

‐ 1204 17

two occasions prior to the district court’s dismissal of his

complaint, Mr. Childress asked the court to appoint counsel.

The district court did not act on those requests, but, instead,

denied all of Mr. Childress’s remaining motions as moot fol

‐ lowing its dismissal of the complaint.

Section 1915(e)(1) of Title 28 provides that “[t]he court

may request an attorney to represent any person unable to

afford counsel.” We recently reiterated the standards to be

applied by the district court in determining whether it

should act under § 1915(e)(1):

In Pruitt [ v. Mote

, 503 F.3d 647 (7th Cir. 2007)

(en banc),] we refined the standards for evalu

‐ ating whether to recruit counsel. If a plaintiff

makes a reasonable attempt to secure counsel,

the court must examine “whether the difficulty

of the case—factually and legally—exceeds the

particular plaintiff’s capacity as a layperson to

coherently present it.” Pruitt

, 503 F.3d at 655.

This inquiry does not focus solely on the plain

‐

tiff’s ability to try his case—it also includes

other “tasks that normally attend litigation”

such as “evidence gathering” and “preparing

and responding to motions.” Id. When ruling

on a motion to recruit counsel, the court should

take account of all evidence in the record rele

‐

vant to the plaintiff’s capacity to litigate.

Navejar v. Iyiola

, 718 F.3d 692, 696 (7th Cir. 2013) (per curi

‐

am). There is no question that the court abused its discretion

in failing to address Mr. Childress’s motion for appointment

of counsel. We previously have recognized that “[t]he failure

of the trial court to exercise its discretion at all—in this case,18 No. 14

‐ 1204

in failing to rule on appellant’s request for appointment of

counsel—constitutes an abuse of discretion.” Brown

‐ Bey v.

United States

, 720 F.2d 467, 471 (7th Cir. 1983). Moreover, we

believe that Mr. Childress was prejudiced by the district

court’s failure to recruit counsel.

“The ordinary remedy in this situation is [to] remand”

and allow the plaintiff to proceed “with the assistance of re

‐

cruited pro bono counsel.” Pruitt

, 503 F.3d at 650. Here,

however, the district court never acted on Mr. Childress’s

motion for the appointment of counsel. Given that the stat

‐

ute authorizing the recruitment of counsel requires the exer

‐

cise of discretion, see id. at 658, we believe the district court

should consider this issue in the first instance. Moreover, it

should act on this motion before giving Mr. Childress an

opportunity to file an amended complaint.

In considering whether to recruit counsel on behalf of

Mr. Childress, the district court must undertake, of course,

“the individualized analysis that Pruitt requires.” Navejar

,

718 F.3d at 697. Specifically, the court must consider

“whether the difficulty of the case—factually and legally—

exceeds [Mr. Childress’s] capacity as a layperson to coher

‐ ently present it to the judge or jury himself.” Pruitt

, 503 F.3d

at 655. This inquiry must be “a practical one, made in light of

whatever relevant evidence is available on the question.” Id

. Such evidence may include any physical, intellectual, or

psychological limitations the plaintiff may have, see id

., as

well as the practical problems the plaintiff may encounter in

gathering evidence from individuals employed by an institu

‐

tion in which he is no longer housed, see Navejar

, 718 F.3d at

698. Here, with respect to the latter requirement, the district

court must determine whether the guiding hand of counselNo. 14

‐ 1204 19

is necessary to ensure that the complaint reflects an adequate

conception of personal liability in § 1983 actions. Specifically,

the court must determine whether Mr. Childress can, from

the confines of his present institutional situation, adequately

investigate and articulate, in accordance with established

practices of § 1983 liability, the familiarity of each defendant

with the practices of the Lifestyle Redirection Program and

with the conditions of mandatory release placed on offend

‐

ers like Mr. Childress.

Conclusion

For these reasons, we conclude that the district court

erred in dismissing Mr. Childress’s initial complaint and en

‐ tering judgment in favor of the defendants. We therefore re

‐

verse that judgment, with orders to reinstate Mr. Childress’s

initial complaint, consider his motion to recruit counsel, and

allow him to file an amended complaint.

REVERSED AND REMANDED