In the

United States Court of Appeals

For the Seventh Circuit

No. 12-1644

LARRY BRACEY,

Plaintiff-Appellant,

v.

JAMES GRONDIN, et al.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Wisconsin.

No. 10-cv-00287—Barbara B. Crabb, Judge.

ARGUED FEBRUARY 27, 2013—DECIDED MARCH 15, 2013

Before FLAUM, SYKES, and TINDER, Circuit Judges.

FLAUM, Circuit Judge. Larry Bracey sued several corrections officers for the use of excessive force under the

Eighth Amendment. Prison security cameras captured

the incident, but the footage was ultimately erased when

the cameras recorded over it about three days later.

Bracey now appeals from the district court’s denial of

his motion requesting recruitment of counsel and its

denial of his motion for spoliation sanctions. We affirm.
2 No. 12-1644

Inmates must face forward during escort to prevent 1

incidents of spitting, lunging, and head-butting of corrections

officers.

I. Background

A. Factual Background

Bracey, an inmate at the Wisconsin Secure Program

Facility, suffered an injury in an altercation with corrections officers on July 29, 2005. The confrontation began when Bracey refused to exit his cell as requested by corrections officers executing a random

search. Bracey ultimately relented when more officers

arrived. They placed him in hand restraints and transferred Bracey to a holding cell.

Bracey’s antics resumed upon arrival at the holding

cell, however, when he prohibited the officers from removing the restraint on his left hand. (Officers had

already removed his right hand from the restraints.)

After several minutes of trying to talk Bracey into compliance, the officers pulled Bracey’s restrained hand

through the holding cell door to immobilize him and

safely removed the final restraint. As a result, Bracey

injured his forearm. The wound bled, soiling one

officer’s uniform.

After completion of the search and en route back to

his regular cell, Bracey again became intransigent, repeatedly turning his head backward toward the

officers in violation of prison policy. He then, according 1

to defendants, “aggressively jerked” his head toward
No. 12-1644 3

Officer Eric Hunt, who responded with reactionary

force by pinning Bracey against a nearby doorway. Bracey

struggled, and the officers ultimately brought him down

to the floor. After reapplying restraints, officers moved

Bracey to a more secure part of the prison. This struggle

inflicted a bump and quarter-sized bruise on Bracey’s

head.

Prison security cameras were positioned to record

both incidents. These cameras operate on a loop, continuously recording information until their memory becomes

full, which usually takes about three days. At that

point, the cameras record over the oldest material. Prison

policy at the time required download and preservation

of security video only in certain situations. These situations did not include an officer’s use of reactionary

force unless the prisoner assaulted staff.

Two days later on August 1, Bracey filed an inmate

complaint claiming Hunt “viciously attacked” him.

During the investigation of this complaint, Bracey

notified the prison that tapes of the incident probably

exist. Bracey suggests he mentioned the recordings in his

August 1 complaint, explaining that the “Offender Complaint included allegations . . . that the incident was

recorded on the Prison’s video recording system.” In

truth, Bracey did not explain the existence of the tapes

until August 3, when the Inmate Complaint Examiner

(“ICE”) interviewed him and took his written statement. The ICE dismissed the complaint and forwarded

Bracey’s statement to the warden for processing.

Also on August 1, the Security Director Designee received incident and conduct reports documenting the
4 No. 12-1644

July 29 incident. After reviewing those reports, the

designee found the staff’s response adequate and did

not download the video for preservation.

B. Procedural History 

Bracey filed this lawsuit in 2010 alleging that corrections officers used excessive force in violation of his

Eighth Amendment rights. He also alleged spoliation in

defendants’ failure to download and preserve the video

from the prison security cameras. After filing his complaint, Bracey requested the court’s assistance in recruiting counsel. 28 U.S.C. § 1915(e)(1). The district

court concluded Bracey had made adequate efforts to

find his own attorney but found the allegations sufficiently straightforward and Bracey sufficiently competent to handle the case himself. It denied the motion.

Proceeding pro se, Bracey requested information

relating to the destruction of the videotapes. After

prison officials referred to certain prison policies in responding to Bracey’s interrogatories, Bracey requested

the policies themselves. The prison refused, and the

district court denied Bracey’s motion to compel, citing

the need to preserve prison security.

As trial approached, Bracey sought sanctions for spoliation of the video recording. Shortly thereafter, Bracey

secured his own counsel, who renewed Bracey’s

request for spoliation sanctions. The district court ultimately denied this motion, refusing the adverse

inference instruction because none of the individual
No. 12-1644 5

defendants were involved in the decision not to

preserve the video.

Bracey lost at trial. He now appeals both the denial

of his motion to recruit counsel and the denial of his

motion for spoliation sanctions.

II. Discussion

A. The District Court Did Not Abuse Its Discretion in

Denying Bracey’s Request for Counsel

District courts may ask an attorney to represent a

litigant unable to pay for his own lawyer. § 1915(e)(1). To

qualify, the indigent litigant must make reasonable

efforts at finding counsel himself. Pruitt v. Mote, 503 F.3d

647, 654 (7th Cir. 2007) (en banc). If the litigant comes

up short, then the district court must decide whether

“given the difficulty of the case,” the plaintiff is “competent to try it himself.” Id. (citing Farmer v. Haas, 990

F.2d 319, 322 (7th Cir. 1993)). Importantly, the district

court must consider both halves of this equation—

the difficulty of the case and the competence of the

litigant. Id. at 660. When reviewing the district court’s

determination on complexity and competency, we

consider the reasonableness of the district court’s conclusion in light of the evidence as it stood at the time

of the district court’s decision. Id. at 659.

We review denials of § 1915(e) motions for an abuse

of discretion. Id. at 658. Thus, we affirm unless the

district court has applied the wrong legal standard (or

made other errors of law), made clearly erroneous
6 No. 12-1644

factual findings, or rendered a clearly arbitrary decision

without any support in the record. Id. Even then, an

appellate court can only reverse when the absence of

counsel prejudiced the litigant, which requires “a

reasonable likelihood that the presence of counsel would

have made a difference in the outcome of the litigation.”

Id. at 659 (emphasis in original). The government does

not challenge the district court’s conclusion that Bracey

made reasonable attempts to obtain counsel himself,

and Bracey does not challenge the district court’s

findings regarding the quality of his pro se representation. Instead, Bracey emphasizes “the difficulties [he]

faced as a prisoner attempting to gather evidence.”

Complexities anticipated (or arising) during discovery

can justify a court’s decision to recruit counsel. Id. at 655;

see also Santiago v. Walls, 599 F.3d 749, 764 (7th Cir. 2010).

Bracey argues largely that the district court failed to

consider the complexities involved in the investigation

of the alleged spoliation of the videotapes. According

to him, the district court’s order makes no explicit

mention of the spoliation issue when considering the

complexity of the case. Thus, he continues, the district

court decided his request for counsel without giving

“significant weight” to this “very important factor.”

Santiago, 599 F.3d at 763.

True, the district court’s order denying the request

for counsel did not explicitly comment on the spoliation issue, and the district court knew that issue existed
No. 12-1644 7

Bracey initially raised his allegations of spoliation as a 2

stand-alone count in the complaint. Wisconsin does not recognize spoliation as an independent tort, however, so the

district court dismissed that count, describing spoliation

as an issue for discovery.

when it ruled on the request. But neither did the district 2

court’s analysis completely ignore discovery: “At the

preliminary pretrial conference, plaintiff will be given

the opportunity to ask questions he has about litigating

his case and he will be instructed about how to use discovery techniques available to all litigants under the

Federal Rules of Civil Procedure so that he can gather

the evidence he needs to prove his case.” Given the deferential standard of review, this language suffices to

show the district court considered the complexity of

spoliation-related discovery in this case, particularly

when the district court had previously reserved that

spoliation issue for discovery. Moreover, while we

have recognized cases involving medical expert testimony or state of mind requirements as legally complex,

see Santiago, 599 F.3d at 761, we have found no case in

this circuit identifying spoliation as a complex legal

issue supporting recruitment of counsel. In fact, other

circuits have not found an abuse of discretion in

denying counsel in cases also involving spoliation. See

Jennings v. Bradley, 419 F. App’x 594 (6th Cir. 2011)

(non-precedential); Rhodes v. Robinson, 399 F. App’x 160

(9th Cir. 2010) (non-precedential); see also Brown v. Hertz,

437 F. App’x 496, 500 (7th Cir. 2011) (non-precedential)

(rejecting necessity of counsel to make county employees
8 No. 12-1644

When evaluating a plaintiff’s competence, district courts 3

should normally consider the plaintiff’s literacy, communication

skills, education level, and litigation experience. Pruitt, 503

F.3d at 655. The plaintiff’s intellectual capacity and psychological history are also relevant. Id.

Santiago itself recognized the uniqueness of the litigant in that 4

case: “[A]lthough the principles of law we articulate are wellestablished, our precise holding is limited to the facts and

circumstances found in the record of this litigation. In that

sense, our holding, like a special railroad fare, is limited ‘to

this day and this train only.’ ” 599 F.3d at 766 (emphasis

in original).

“more responsive to discovery requests”). Thus, we

conclude that the district court did not abuse its discretion in its consideration of the complexity of the case.

Bracey does not directly challenge his competence to

litigate the case. He does, however, suggest that a 3

lawyer would have allowed him access to certain prison

policies by permitting “attorneys’ eyes only” review.

This deficiency, though, relates not to Bracey’s competency but merely to his status as a prison inmate. For

this reason, Bracey’s situation differs from the litigant’s

posture in Santiago v. Walls. In that case, the litigant’s

inability to investigate his claim after his transfer to

a different prison—and the district court’s failure to

consider this fact—resulted in the court’s abuse of discretion in denying the § 1915 request. Santiago, 599 F.3d

at 762-63. Unlike the circumstances in Santiago, unique to

that prisoner alone, all inmates confront the discovery 4

restrictions facing Bracey: internal prison policies have
No. 12-1644 9

Among the potentially relevant questions such policies might 5

answer are: When are corrections officers authorized to use

force? How much force is authorized in certain situations?

What preliminary measures must officers take before

resorting to force?

relevance in nearly every prison lawsuit alleging the

excessive use of force. Thus, if the need to access other- 5

wise inaccessible documents requires recruitment of

counsel, recruitment would result in nearly all such

cases. Section 1915 does not impose that burden.

Other considerations support the district court’s

decision as well. The district court offered Bracey instruction on discovery in federal court. And Bracey

could always have renewed his request for counsel

when confronted with the difficulties of obtaining prison

security documents. Of course, a district court need not

spontaneously revisit an earlier ruling on a § 1915

motion, but nothing prevents a pro se litigant from

again requesting counsel later in a proceeding. See

Santiago, 599 F.3d at 764 (noting court can “question . . .

whether the language of the district court in disposing

of the [§ 1915 motion] impermissibly prevented [the

pro se litigant] from making later requests [for counsel]”).

More importantly, when Bracey did eventually obtain

counsel, he could have requested a continuance and

asked to reopen discovery. He did not. While the court

may have denied that request, if pro se discovery so

hampered his case and if attorney-assisted discovery

would have yielded significant benefits, one would

expect Bracey to at least advance such a position.
10 No. 12-1644

In short, the district court knew of Bracey’s spoliation

allegations when concluding Bracey could handle the

case himself. Bracey received pro se support and training

resources. After all that, Bracey still could have requested counsel later in the proceeding or asked the

court to reopen discovery, yet he chose not to pursue

that course of action. On these facts, we find no abuse of

discretion in denying Bracey’s first and only request

for counsel under § 1915(e). Because the district court

did not abuse its discretion in evaluating the complexity

of the case and Bracey’s competence as a pro se litigator,

we need not address the issue of prejudice.

B. The District Court Did Not Abuse Its Discretion

in Declining to Issue an Adverse Inference Instruction 

In this circuit, when a party intentionally destroys

evidence in bad faith, the judge may instruct the jury

to infer the evidence contained incriminatory content.

Faas v. Sears, Roebuck & Co., 532 F.3d 633, 644 (7th Cir.

2008). When considering the propriety of such an

adverse inference instruction, “[t]he crucial element is

not that the evidence was destroyed but rather the

reason for the destruction.” Park v. City of Chicago, 297 F.3d

606, 615 (7th Cir. 2002) (quoting S.C. Johnson & Son, Inc.

v. Louisville & Nashville R.R. Co., 695 F.2d 253, 258 (7th

Cir. 1982)); see also Norman-Nunnery v. Madison Area Tech.

Coll., 625 F.3d 422, 428 (7th Cir. 2010). A party destroys

a document in bad faith when it does so “for the purpose of hiding adverse information.” Faas, 532 F.3d at
No. 12-1644 11

We note also that Bracey has not appealed the district court’s 6

denial of his motion to compel production of the prison

security policies that Bracey believes will provide the

evidence supporting his spoliation argument.

644 (quoting Rummery v. Ill. Bell Tel. Co., 250 F.3d 553, 558

(7th Cir. 2001)). We review a district court’s denial of

an adverse inference instruction for abuse of discretion,

Park, 297 F.3d at 615, but “ ‘bad faith’ is a question of fact

like any other,” Mathis v. John Morden Buick, Inc., 136

F.3d 1153, 1155 (7th Cir. 1998). Bracey requested an adverse inference instruction regarding the destroyed

videotape, which the district court denied. He now

raises two arguments on appeal. Both lack merit.

First, Bracey suggests that the district court abused

its discretion by denying the motion prematurely. According to Bracey, he lacked access to the evidence necessary to show spoliation, preventing the district court

from making the fact-intensive inquiry a spoliation

motion requires and resulting in an inherently arbitrary

decision. This argument attempts to shift the burden

of proof. As the moving party, Bracey must establish

the defendants destroyed the videotapes in bad faith.

Rummery, 250 F.3d at 558 (denying adverse inference

instruction when moving party “offered no evidence,

other than his own speculation, that [the documents]

were destroyed to hide” incriminatory evidence). On the

evidence available, he has not done so. The mere fact

that some evidence remained unavailable to him

does not lessen his burden of proof.6
12 No. 12-1644

Second, Bracey argues the merits of the spoliation

motion, challenging the district court’s finding that

“defendants are just not in any way responsible for the

destruction of the film.” According to Bracey, defendants

had a duty to preserve the video so its destruction compels issuing an adverse inference instruction. Simply

establishing defendants’ duty to preserve, however, is

not enough: Bracey must also show destruction in bad

faith. Assuming—without deciding—that defendants

had a duty to preserve the tapes, bad faith requires destruction “for the purpose of hiding adverse information.” Faas, 532 F.3d at 644. Bracey asserts only that

a prison security officer reviewed his complaint.

He makes no assertion that any prison official

actually viewed the relevant video (or deliberately

avoided watching the video for fear of what it contained). Without having seen the video, no prison

official could have known the tapes potentially contained adverse information and, without that knowledge, could have destroyed the tapes for the purpose of

hiding adverse information. In this regard, Mathis v. John

Morden Buick, Inc. is instructive. In that case, the owner

of the defendant car dealership intentionally destroyed

documents that he had a legal obligation to preserve.

Mathis, 136 F.3d at 1155. Nevertheless, his opponent did

not show bad faith—that the owner had destroyed the

documents “for the purpose of hiding adverse information”—so no adverse inference instruction could issue.

Id. at 1155-56; see also Trask-Morton v. Motel 6 Operating

L.P., 534 F.3d 672, 681-82 (7th Cir. 2008) (affirming denial

of spoliation sanction where no evidence of bad faith);
No. 12-1644 13

Park, 297 F.3d at 615-16 (affirming denial of spoliation

sanction when records destroyed under routine record

expungement policy); Coates v. Johnson & Johnson, 756

F.2d 524, 551 (7th Cir. 1985) (affirming denial of spoliation sanction when records destroyed under routine

procedures). Nothing in any of Bracey’s filings shows

defendants destroyed the video because of any

damaging content it may have contained. Without that

showing, Mathis forecloses Bracey’s entitlement to an

adverse inference instruction.

We recognize that a number of district courts have

issued adverse inference instructions in situations similar

to Bracey’s. See Kounelis v. Sherrer, 529 F. Supp. 2d 503,

519-21 (D.N.J. 2008); LaJocies v. City of N. Las Vegas,

No. 2:08-cv-606-GMN-GWF, 2011 WL 1630331, at *3-5

(D. Nev. Apr. 28, 2011); Peschel v. City of Missoula, 664

F. Supp. 2d 1137, 1143-44 (D. Mont. 2009). That other

trial courts have reached different conclusions on

similar facts, however, does not amount to an abuse of

discretion by the district court in this case. Indeed, discretion by its very nature permits different judges to

reach different—but reasonable—conclusions on the

same set of facts. Some circuits have adopted less

stringent standards than we require for issuing an adverse

inference instruction. Compare Park, 297 F.3d at 615 (requiring intentional destruction in bad faith), with Adkins

v. Wolever, 692 F.3d 499, 504-05 (6th Cir. 2012) (requiring

only negligent destruction and a duty to preserve), and

Glover v. BIC Corp., 6 F.3d 1318, 1329 (9th Cir. 1993) (bad

faith not required for adverse inference instruction).

Simply establishing a duty to preserve evidence or even
14 No. 12-1644

the negligent destruction of evidence does not automatically entitle a litigant to an adverse inference instruction in this circuit. Bracey has not made the requisite

showing of bad faith, and we cannot conclude that the

district court abused its discretion in declining to issue

an adverse inference instruction.

Finally, in his reply, Bracey asks the court to reopen

discovery so he can pursue evidence surrounding the

destruction of the videotapes. He made no such

motion after trial counsel entered his appearance before

the district court and has not raised this request until his

reply brief so that argument is waived. See Coleman v.

Hardy, 690 F.3d 811, 818 (7th Cir. 2012) (argument not

raised before district court waived); Dye v. United States,

360 F.3d 744, 751 n.7 (7th Cir. 2004) (argument first raised

in reply brief waived). Given his prior opportunities

to make these requests and the civil nature of Bracey’s

claims, neither do the interests of justice require reopening discovery in his case.

In short, Bracey bears the burden of showing defendants

had a duty to preserve the videotape and destroyed

that video in bad faith. That burden has not been met.

III. Conclusion

For these reasons, we AFFIRM the district court’s denial

of Bracey’s request for the recruitment of counsel and

its denial of Bracey’s request for an adverse inference instruction.

3-15-13