In the 

United States Court of Appeals 

For the Seventh Circuit ____________________ 

No. 16-2471 

MICHAEL DAVIS, 

Plaintiff-Appellant, 

v.

DONALD MORONEY,

Defendant-Appellee. 

____________________ 

Appeal from the United States District Court 

for the Central District of Illinois. 

No. 1:13-cv-01462-SLD — Sara Darrow, Judge. 

____________________ 

ARGUED APRIL 25, 2017 — DECIDED MAY 22, 2017 

____________________ 

Before POSNER, KANNE, and HAMILTON, Circuit Judges. 

POSNER, Circuit Judge. Michael Davis, an inmate at Illinois 

Pontiac Correctional Center, sued a guard, Donald Moroney, 

for allegedly using excessive force against him, but the district court dismissed the suit for failure to prosecute. Davis 

now challenges the denial of a subsequent motion for relief 

from judgment under Federal Rule of Civil Procedure 60(b). 

He argues that exceptional circumstances warrant relief 

from the judgment, principally because mental impairments 
2 No. 16-2471 

prevented him from prosecuting the case without the aid of 

counsel. 

Davis filed this suit under 42 U.S.C. § 1983 in 2013 

against guard Moroney along with the prison’s warden and 

other prison officials responsible for the prison’s grievance 

process. In his complaint Davis alleged that while speaking 

with another inmate he accidentally bumped into Moroney, 

apologized, but Moroney responded by hitting Davis in the 

jaw, throat, and chest, twisting his arm behind his back, 

slamming his head against a wall, and handcuffing him. Davis charges that the other defendants, in an effort to cover up 

Moroney’s assault, conspired to deny him access to the prison’s grievance procedure by failing to process and return his 

grievances. 

Davis asked the district court to recruit counsel for him, 

stating that he “had to obtain complete assistance” in order 

to be able to prosecute his suit. He had tried to secure counsel on his own, he added, and referred to a letter from a law 

firm corroborating his attempt to obtain representation; but 

no letter was attached to his motion. 

The district court screened Davis’s complaint, see 

28 U.S.C. § 1915A, and allowed him to proceed on his excessive-force claim against Moroney. But the court dismissed 

the conspiracy claim against the other defendants on the 

ground that Davis had no federal constitutional right to a 

grievance procedure and therefore could not “present a meritorious claim.” The court also denied Davis’s motion for 

counsel, on the ground that he’d failed to demonstrate that 

he’d made a reasonable attempt to obtain counsel. 
No. 16-2471 3 

Discovery ensued, but Davis failed to respond to interrogatories propounded by Moroney concerning Davis’s attempts to exhaust his administrative remedies. 

Two months later Davis repeated his request for recruitment of counsel, stating that he had a mental illness and was 

unable to aid the inmate who was preparing his court filings. 

Davis attached to his motion an affidavit from the assisting 

inmate, Claude McGee, who asserted that “it is almost 

common knowledge that Mr. Davis has a mental illness” and 

that Davis’s “judgment is substantially impaired, along with 

his perceptions of reality, all of which rendered it essentially 

impractical to effectively communicate with Mr. Davis to 

meet deadlines, [or to] fully and fairly participate in the discovery process.” Two months later the district court denied 

Davis’s request for counsel on the ground that he’d failed to 

demonstrate that he had tried to secure counsel on his own 

and because his claim was “not unduly complex and relies 

largely on information of his personal knowledge.” 

The court allowed Davis 21 more days to respond to 

Moroney’s interrogatories. On the twenty-first day Davis renewed his motion for recruitment of counsel, asserting that 

the case was difficult for him because he reads at a 6th-grade 

reading level, lacks communication skills, and has a “paranoid delusional disorder.” He also attached his “legal mail 

card,” which cataloged his incoming and outgoing mail to a 

number of law firms. And he asked the court to order the 

prison to turn over his medical records. Moroney, having 

still received no response to his interrogatories, filed another 

motion to compel Davis to respond. 

The district judge took no further action for nine months, 

then issued a scheduling order stating that “there are no 
4 No. 16-2471 

pending issues requiring discussion.” The order directed 

Moroney to provide Davis with, among other things, Davis’s 

“relevant medical records” and “relevant grievances and all 

responses to those grievances.” 

Without it appears responding to the court’s directive, a 

month later Moroney filed a motion to dismiss Davis’s suit 

under Fed. R. Civ. P. 41(b) for lack of prosecution because 

Davis still had not answered the interrogatories. The district 

judge responded with two orders: the first denied Davis’s 

renewed motion for recruitment of counsel because his 

“claim is not unduly complex and relies largely on information within his personal knowledge,” and instructed Davis to request his medical records through his institution—

whatever that means. The judge’s second order warned Davis that his case would be dismissed unless he filed answers 

to Moroney’s interrogatories within 14 days. Twenty days 

later Davis filed a motion to reconsider the denial of his motion for recruitment of counsel but did not respond to the 

interrogatories. The district court then granted Moroney’s 

motion to dismiss Davis’s suit, explaining that Davis had 

failed to comply with the judge’s orders directing him to respond to the interrogatories. The judge denied Davis’s motion to reconsider the denial of his motion for recruitment of 

counsel as moot. 

Almost a month later Davis filed a “Motion to Reconsider/Reinstate Cause” and argued that the court had disregarded his “possible mental impairments” that prevented 

him from effectively litigating his case. He also asked the 

court to give him more time to find an attorney. The court 

did not find Davis’s arguments “persuasive” and so denied 

the motion. Nine days later Davis filed a Rule 59(e) motion 
No. 16-2471 5 

to alter or amend the judgment, stating that he was “extremely slow mentally,” that he lacked the ability “to produce any form of effort to pursue this cause,” and that the 

circumstances were exceptional because he had “insufficient 

knowledge of any complexity of the case” and could not 

represent himself. The motion also alleged that prison staff 

had retaliated against the inmates who had prepared Davis’s 

filings for him. The court denied this motion the next day as 

untimely, pointing out that Davis had missed the 28-day 

deadline for making a “genuine” motion under Fed. R. Civ. 

P. 59(e). 

Five months later Davis filed still another motion for recruitment of counsel (his fourth) based on his mental deficiencies. He stated that his I.Q. was under 73 and that he 

could not understand Moroney’s filings. The court denied 

this motion, presumably because the case had been dismissed, but noted that it was not clear whether Davis intended to request counsel to assist him with an appeal. 

Two months later Davis moved for relief from judgment 

under Fed. R. Civ. P. 60(b)(1) and (b)(6), again mentioning 

his mental shortcomings. He stated that he has an I.Q. of only 66 and the “mind of a child,” is barely literate, and could 

not meet the court’s deadlines without aid or supervision. In 

light of these difficulties (as well as his inability to understand Moroney’s interrogatories), he added, the court should 

have recruited counsel for him. 

In May 2016 the district court denied his motion for relief 

from the judgment, noting that Davis had not responded to 

Moroney’s interrogatories despite two orders directing him 

to do so, and adding that Moroney’s defense had been prejudiced by Davis’s failure to respond. 
6 No. 16-2471 

The only issue in this appeal, as agreed by the parties, 

concerns the denial of Davis’s Rule 60(b) motion. Assisted by 

counsel that this court recruited, Davis argues that the district judge decided that motion incorrectly because she 

didn’t account for his exceptional circumstances—namely 

his mental impairments. He also contends that like the plaintiff in Donald v. Cook County Sheriff’s Department, 95 F.3d 548 

(7th Cir. 1996), his difficulty in litigating this case has 

stemmed from the district court’s handling of it—notably the 

judge’s nine-month delay in responding both to Moroney’s 

second motion to compel a response to his interrogatories 

and to Davis’s renewed motion for recruitment of counsel. 

The controlling issue is whether Davis has established a 

basis for relief under Fed. R. Civ. P. 60(b), which so far as relates to this case allows a court to relieve a party from a final 

judgment on grounds of “excusable neglect” (Rule 60(b)(1)), 

or “any other reason that justifies relief” (Rule 60(b)(6)). 

While relief under that rule has been described as “an extraordinary remedy ... granted only in exceptional circumstances,” Bakery Machinery & Fabrication, Inc. v. Traditional 

Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009), the circumstances of this case are extraordinary—notably Davis’s intellectual limitations. 

Davis also argues that the district court did not properly 

consider his impairments and lack of resources in its denials 

of his motions for counsel, and also that the court erred by 

not considering his motion to reconsider the entry of judgment as a motion under Rule 59(e). He contends that the district court did not evaluate that motion under the proper 

standard and that as a result he (Davis) may not have understood that he should have filed an appeal. But as Moroney 
No. 16-2471 7 

points out, this court lacks jurisdiction to consider the district court’s denial of this motion because Davis did not file a 

timely notice of appeal. 

Although Moroney and the district judge made points 

that would be compelling in another setting, involving a different type of grievant, they are outweighed by the equities 

in favor of Davis that stem from his severe intellectual limitations, coupled with his lack of legal assistance; and while 

review of a district court’s denial of a Rule 60(b) motion is 

deferential, if the judge is “very far off base ... or omitted to 

consider some important relevant factor,” the denial cannot 

stand. Tolliver v. Northrop Co., 786 F.2d 316, 319 (7th Cir. 

1986). Davis’s intellectual limitations, asserted in his and 

McGee’s affidavits, are not contradicted by Moroney, who 

did not dispute the assertions in the affidavits submitted by 

Davis and McGee. Nor had the district judge been given any 

reason to doubt that Davis was intellectually disabled. 

Furthermore the judge attached far too much weight to 

Davis’s failure to respond to Moroney’s interrogatories—for 

they were little better than a ploy aimed at a person incapable of responding intelligently. The information sought included “the number of grievances you wrote related to the 

issues in your complaint, ... the date on which you wrote 

each grievance[;] the date(s) of submission of each grievance 

to your counselor; the date(s) of submission of each grievance 

to the Grievance Officer; the date(s) of submission of each 

grievance to the Administrative Review Board; whether you 

submitted the grievance(s) to anyone else; the manner in 

which you submitted the grievance(s) at each level; the 

name of any person to whom you gave the grievance(s) at 

each level of the process; the date(s) of response(s) at any 
8 No. 16-2471 

level; the date(s) of final determination(s) by the Administrative Review Board; and whether you are in possession 

of any grievance(s) or grievance response(s) related to this 

lawsuit. If you are not, state why you are not.” Not only did 

most of these questions exceed Davis’s capacity to answer 

them, but almost all the information requested from Davis 

resided in the files of the prison and were thus immediately 

accessible by Moroney. While Davis was unlikely to have 

retained the dates demanded by Moroney, copies of the 

grievances he had submitted, or the names of most of the 

persons to whom he had submitted his grievances, or to understand “each level of the process,” Moroney, as a member 

of the prison’s staff and in cahoots with the other defendants, had access to everything Davis had filed with the prison 

administration and so had no need to seek information from 

Davis. The Prison Litigation Reform Act provides that “no 

action shall be brought [under federal law] with respect to 

prison conditions ... by a prisoner ... until such administrative remedies as are available are exhausted.” 42 U.S.C. 

§ 1997e(a). Moroney was therefore entitled to argue as a defense that Davis had failed to exhaust his administrative 

remedies—had failed to timely submit a grievance to the 

prison’s Administrative Review Board. But in the particular 

circumstances of this case the insistence on a response 

amounted to cruel harassment of a mental defective. 

To cast some additional light on whether Davis, given 

his mental handicaps, could have been expected to understand most of the orders he received from the district judge 

and Moroney, we conducted an experiment using the Flesch 

Reading Ease Readability Formula. Downloadable free of 

charge from the Internet (see, e.g., Readability Formulas, 

“The Flesch Reading Ease Readability Formula,” www.read
No. 16-2471 9 

abilityformulas.com/flesch-reading-ease-readability-formula

.php, visited May 22, 2017), Flesch is a test used to estimate 

the difficulty for given readers of understanding a given 

text. The formula is simple: it measures the ratio of syllables 

to words, and words to sentences, in the text; the higher 

those ratios, the more difficult the text is to understand. Of 

course other qualities of a text contribute to how difficult it 

is to understand, but the Flesch formula is a helpful heuristic that correlates well with difficulty—for example, the average ratios of random samples of the Harvard Law Review

are higher than the average ratios of random samples of 

Time magazine; the Harvard Law Review is more difficult to 

read than Time. See Rudolf Flesch, How to Write Plain English

26 (1979). Having determined how difficult the text is, the 

Flesch test translates that score into a prediction of what educational level a reader would have to have attained in order to be able to understand the text. 

Applied to Moroney’s interrogatories, the Flesch test reveals that their comprehension requires a reading ability 

consistent with having completed 8th, maybe 9th, grade in 

school. The most optimistic assessment of Davis’s reading 

ability is that he can read at a 6th-grade level—two or three 

levels below the reading ability required for an understanding of the interrogatories. 

Davis needs help—needs it bad—needs a lawyer desperately. He did not have a fair opportunity to prosecute his 

case. As in Donald v. Cook County Sheriff’s Dept., 95 F.3d 548, 

554 (1996), “the plaintiff’s difficulties are traceable in considerable part to the way the matter was handled by the district court.” The district judge, although purporting to apply 

the standard for deciding whether to recruit pro bono coun-
10 No. 16-2471 

sel set forth in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en 

banc), overlooked our emphasis in that case on the need to 

consider whether the particular plaintiff is competent to litigate his own claims, as by being able to “prepar[e] and respond[] to motions and other court filings” himself. Id. at 

655. In combination, Davis’s severe intellectual handicaps, 

his apparently diligent efforts to pursue his case despite 

those handicaps, his potentially meritorious claim, and the 

irregularities of the district court’s handling of the case, 

amount to “extraordinary circumstances” justifying relief 

under Rule 60(b)(6) of the Federal Rules of Civil Procedure 

from the final judgment in this case. See Ramirez v. United 

States, 799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s 

motion for relief from final judgment is therefore reversed 

and the case remanded for further proceedings consistent 

with this opinion. 

REVERSED AND REMANDED. 
No. 16-2471 11 

KANNE, Circuit Judge, concurring. I join in the majority’s 

reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand 

for further proceedings. I write separately to briefly discuss 

certain factors. 

When reviewing a district court’s denial of an indigent 

prisoner plaintiff’s motion to recruit counsel for him, we 

make three inquiries: “(1) has the indigent plaintiff made 

reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not, 

would the presence of counsel have made a difference in the 

outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en 

banc) (internal citations and quotations marks omitted). 

Here, the district court erred at the mandatory first step 

by not crediting Davis for following existing precedent in 

attempting to obtain a lawyer to represent him. See Jackson v. 

Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). In fact, the 

defendant does not contest that Davis had contacted several 

lawyers seeking representation in this litigation. 

Moreover, the long extended give-and-take between the 

district judge and the parties failed to get to the heart of the 

matter: whether the district court should have tried to appoint counsel for Davis. The court could have addressed this 

issue by appointing a magistrate judge to conduct a hearing 

at the prison. The magistrate judge could have considered 

both Davis’s efforts to obtain counsel and the difficulty Davis experienced in dealing with the case. In addition, but less 

satisfactorily, the district judge could have held a hearing by 

telephone to achieve the same end. 
12 No. 16-2471 

With counsel, Davis likely would not have missed the 

deadlines for written discovery. Thus, the outcome of the 

case in the district court would have been different. 

I agree that, in this case, the district court should have 

tried to obtain counsel for Davis because of the totality of 

extraordinary circumstances. However, the use of Davis’s 

unverified (albeit undisputed) IQ score as a metric to determine his reading ability—and therefore, the need for legal 

representation—is problematic. Davis first claimed that his 

IQ score was under 73, and later that his IQ was only 66. Initially, as noted, the validity of Davis’s IQ is not supported 

by any proper validation. Furthermore, his claimed 6thgrade reading level and lack of communication skills were 

only unverified allegations. 

In the general scheme of recruiting pro bono counsel, it 

is extremely significant that the number of inmates in prison 

with low IQs is substantial. See generally Brie Diamond, Robert G. Morris & J.C. Barnes, Individual and Group IQ Predict 

Inmate Violence, 40:2 Intelligence 115 (2012) (“[T]he literature 

suggests that IQ—at the individual and macro-level—is 

negatively correlated with crime ... .”). 

If, therefore, an IQ score is routinely used to establish 

reading ability and thus a need for counsel, it should be 

based on valid testing. Indeed, the use of an IQ level will 

certainly result in a much larger number of prisoner cases 

being added to the dockets of district courts. Such an outcome would be contrary to the intent of Congress exhibited 

by enacting the Prison Litigation Reform Act, 42 U.S.C. 

§ 1997e. See Woodford v. Ngo, 548 U.S. 81, 84 (2006) (noting 

that Congress enacted the Prison Litigation Reform Act to 
No. 16-2471 13 

reduce the quantity of the ever-increasing number of prisoner lawsuits). 

Nevertheless, given the totality of applicable extraordinary circumstances, and specifically, because the district 

court did not credit Davis’s attempts to obtain legal representation, I agree that the final judgment must be reversed 

and the case remanded.