NONPRECEDENTIAL DISPOSITION

To be cited only in accordance with Fed. R. App. P. 32.1 

United States Court of Appeals

For the Seventh Circuit 

Chicago, Illinois 60604 

Argued December 10, 2019 

Decided January 23, 2020 

Before 

MICHAEL S. KANNE, Circuit Judge

DIANE S. SYKES, Circuit Judge

AMY C. BARRETT, Circuit Judge

No. 18-1154 

MARSHAUN BOYKIN, 

Plaintiff-Appellant, 

 v. 

STEVE SANDHOLM, et al.,

Defendants-Appellees. 

Appeal from the United States 

District Court for the 

Northern District of Illinois, 

Western Division. 

No. 3:16-cv-50162 

Frederick J. Kapala, 

Judge. 

ORDER 

Marshaun Boykin filed this lawsuit under 42 U.S.C. § 1983, alleging that 

the defendants, officer Steve Sandholm and eight unnamed officers, violated his 

Eighth Amendment rights. The defendants moved to dismiss the lawsuit under 

the Prison Litigation Reform Act, arguing that Boykin had never filed a grievance 

complaint with the prison and had therefore failed to exhaust his administrative 
No. 18-1154 Page 2 

remedies. Boykin countered that he had, in fact, filed an emergency grievance 

complaint—but he said that the prison never responded to it, rendering his 

administrative remedies “unavailable.” 

After an evidentiary hearing on exhaustion, the district court dismissed 

the suit. It concluded that Boykin never filed an emergency grievance complaint 

and that even if he had, he failed to take advantage of his available remedies 

because he did not resubmit his complaint through the non-emergency grievance 

process. On appeal, Boykin challenges this ruling, as well as the denials of his 

two requests for recruitment of counsel. 

While this appeal was pending, the defendants notified us that the 

grievance log they produced during the exhaustion hearing did not include the 

inmates’ emergency grievance complaints. In light of this error, they have asked 

us to remand this case to give the district court an opportunity to reconsider its 

exhaustion determination. Given the defendants’ concession, we vacate the 

district court’s exhaustion ruling and remand without reaching the merits of 

Boykin’s two challenges to it. We affirm, however, the denials of Boykin’s 

requests for recruitment of counsel. 

I.

Marshaun Boykin, then an inmate at the Dixon Correctional Center in 

Illinois, filed this lawsuit under 42 U.S.C. § 1983, alleging that the defendants 

violated his Eighth Amendment rights during an incident that occurred at Dixon 

on March 26, 2016. According to Boykin, he was sitting in his wheelchair when a 

fight between two inmates broke out. He alleges that at some point during the 

fight, several correctional officers and another inmate assaulted him and that the 

correctional officers then put him in a segregated facility without offering him 

medical treatment. 

Boykin says that he initially tried to resolve this claim through Dixon’s 

administrative process. Under the Illinois Administrative Code, an inmate can 

commence administrative proceedings by filing a standard grievance complaint 

within 60 days of the incident. ILL. ADMIN. CODE tit. 20, § 504.810(a). But if the 

inmate believes that his grievance warrants immediate attention, he can file an 

emergency grievance complaint. Id. § 504.840. Boykin alleges that he filed an 

emergency grievance complaint on March 26, 2016—the day of the incident. The 

prison can respond to an emergency complaint by either accepting the complaint 

as an emergency grievance or denying it and notifying the inmate in writing that 

he can resubmit his complaint as a standard grievance. Id. The prison notifies the 
No. 18-1154 Page 3 

inmate of its decision to deny the emergency grievance by checking the “nonemergency” box on the inmate’s emergency grievance complaint and returning 

the complaint to him. According to Boykin, Dixon returned his emergency 

grievance complaint to him on May 7, 2016 without checking the box. 

Considering his administrative remedies exhausted, Boykin submitted this 

§ 1983 claim to the district court that same day. 

Boykin also filed a motion for recruitment of counsel, asserting that he 

was mentally ill, illiterate, and unable to adequately represent himself. The 

district court denied the motion but noted that it would be open to entertaining a 

renewed motion if circumstances changed. 

The defendants responded that Boykin’s lawsuit should be dismissed 

because he failed to exhaust his administrative remedies under the Prison 

Litigation Reform Act (PLRA) by failing to file a grievance complaint with the 

prison. See 42 U.S.C. § 1997e(a) (“No action shall be brought with respect to 

prison conditions under section 1983 of this title, or any other Federal law, by a 

prisoner confined in any jail, prison, or other correctional facility until such 

administrative remedies as are available are exhausted.”). Under Ross v. Blake, 

“the exhaustion requirement hinges on the ‘availab[ility]’ of administrative 

remedies: An inmate, that is, must exhaust available remedies, but need not 

exhaust unavailable ones.” 136 S. Ct. 1850, 1858 (2016) (alteration in original). 

Boykin argued that he exhausted all “available” remedies when he filed an 

emergency grievance complaint because the prison’s failure to respond to that 

complaint rendered the rest of his administrative remedies “unavailable.” 

To resolve this dispute over exhaustion, the magistrate judge, who was 

overseeing some of the proceedings, ordered a Pavey hearing—an evidentiary 

hearing on exhaustion. See Pavey v. Conley, 544 F.3d 739 (7th Cir. 2008). Prior to 

the hearing, Boykin filed another motion for recruitment of counsel. The 

magistrate judge denied this second motion. 

Boykin represented himself at the Pavey hearing via videoconference. As 

evidence, he offered his own testimony, as well as the emergency grievance 

complaint that the prison allegedly returned to him on May 7. The defendants 

put on two witnesses: James Martens (the grievance officer who oversaw the 

grievance process at Dixon) and Troy Hendrix (the officer assigned to reviewing 

emergency grievances at Dixon). They both testified that Dixon had no record of 

Boykin’s alleged March 26 complaint. They also testified that if Boykin had filed 

an emergency grievance, it would not have been returned to him without an 

answer. During the hearing, Boykin requested Dixon’s grievance log. Dixon 
No. 18-1154 Page 4 

produced Boykin’s Cumulative Counseling Summary sheet—which was 

ultimately irrelevant—and Dixon’s Grievance Tracking Log, which had no 

record of Boykin’s March 26 emergency complaint. 

The magistrate judge evaluated the evidence and recommended that 

Boykin’s suit be dismissed for failure to exhaust under the PLRA. The district 

court accepted the magistrate judge’s recommendation and dismissed Boykin’s 

suit on two grounds. First, it held that Boykin failed to exhaust his remedies 

because he never filed an emergency grievance complaint. Alternatively, it held 

that even if Boykin had filed an emergency grievance complaint, he did not 

exhaust his remedies because he failed to take advantage of the opportunity to 

resubmit his emergency grievance complaint as a standard grievance within the 

60-day window. 

II. 

Boykin, now represented by counsel, takes issue with two aspects of the 

district court’s dismissal. First, he argues that the district court’s exhaustion 

determination erroneously assumes—without any factual basis—that the 

Grievance Tracking Log produced during the Pavey hearing tracks the inmates’ 

emergency grievances, as opposed to standard grievances. Second, Boykin 

argues that the district court’s alternative ground for dismissal was based on a 

legally erroneous presumption that the standard grievance process was an 

“available” remedy that he was required to exhaust under the PLRA. 

Since this appeal was filed, the defendants have resolved the first issue for 

us. After filing a brief urging us to affirm the district court’s dismissal, the state’s 

attorney submitted a Rule 28(j) letter acknowledging that Dixon maintains two 

separate grievance logs—one for standard grievance complaints and another for 

emergency complaints. The Grievance Tracking Log produced during Boykin’s 

Pavey hearing was the former. In light of this error, the defendants have asked us 

to remand the case for another exhaustion determination. Since both parties 

agree that the district court’s dismissal was tainted by the defendants’ error, we 

remand this case for further proceedings on exhaustion. We leave it to the district 

court to determine whether a new Pavey hearing is required to resolve the 

exhaustion dispute and what the extent and scope of discovery at that hearing 

should be. 

Because we are remanding for a do-over, we will not reach Boykin’s 

second argument. But on remand, the district court is free to consider—as it did 

before—whether the standard grievance protocol was an “available” remedy that 
No. 18-1154 Page 5 

Boykin was required to exhaust before bringing this suit. See Ross, 136 S. Ct. at 

1859 (holding that an administrative remedy is “available” under the PLRA if it 

is “‘capable of use’ to obtain ‘some relief for the action complained of’” (citation 

omitted)); see also Bargher v. White, 928 F.3d 439, 447 (5th Cir. 2019) (reasoning 

that because Louisiana’s two-step grievance protocol allows the inmate to move 

on to step two even if he does not receive a timely response from the prison at 

step one, he is required to attempt both steps under the PLRA). But see Shifflett v. 

Korszniak, 934 F.3d 356, 365–66 (3d Cir. 2019) (holding that “as soon as a prison 

fails to respond to a properly submitted grievance or appeal within the time 

limits prescribed by its own policies, it has made its administrative remedies 

unavailable” even if the prison’s nonresponse does not prevent the inmate from 

taking other administrative steps). 

III. 

In addition to challenging the district court’s exhaustion determination, 

Boykin also argues that the district court and the magistrate judge erred when 

they denied his two requests to recruit counsel. We disagree. 

“There is no constitutional or statutory right to counsel in federal civil 

cases.” Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010). But an indigent 

litigant may request that the district court appoint counsel under 28 U.S.C. 

§ 1915(e)(1). We review a district court’s denial of recruitment of counsel for 

abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 658 (7th Cir. 2007). 

When determining whether to grant a plaintiff’s request for recruitment of 

counsel, the court must consider two questions: “(1) has the indigent plaintiff 

made a reasonable attempt to obtain counsel or been effectively precluded from 

doing so; and if so, (2) given the difficulty of the case, does the plaintiff appear 

competent to litigate it himself?” Id. at 654. Boykin’s argument falters on the 

second prong. The main inquiry under the second prong turns on whether “the 

difficulty of the case—factually and legally—exceeds the particular plaintiff’s 

capacity as a layperson to coherently present it to the judge or jury himself.” Id.

at 655. Both the district court and the magistrate judge reasonably determined 

that, given Boykin’s ability to communicate lucidly with the court, his history of 

filing adequate complaints in federal court, the simplicity of his claim, and the 

straightforward nature of the proceedings, the difficulty of the case did not 

exceed his capacity to litigate it. 

For Boykin’s first request at the outset of the litigation, the district court 

determined that Boykin could competently litigate on his own behalf based on 
No. 18-1154 Page 6 

the fact that his filings were “reasonably well written” and that he had 

previously filed over twenty cases in the district “without ‘striking out’ under 28 

U.S.C. § 1915(g).” See id. (holding that while “there are no fixed requirements for 

determining a plaintiff’s competence to litigate his own case; the judge will 

normally take into consideration the plaintiff’s literacy, communication skills, 

educational level, and litigation experience”). The district court also adequately 

concluded that Boykin’s case was “not very complex” and predicted that a trial 

would not require the parties to do much more than simply testify about the 

incident. As a cautionary note, the court also acknowledged that it could not 

make a conclusive determination so early in the proceedings and that it would be 

open to reconsidering its decision later. See Romanelli, 615 F.3d at 852 (holding 

that the district court’s denial of the plaintiff’s request at an early stage in the 

proceedings was reasonable because when “the case [is] still in its infancy,” the 

district court cannot “make any accurate determination regarding [the inmate’s] 

abilities or the outcome of the lawsuit”). 

The magistrate judge evaluated similar factors before denying Boykin’s 

second request in the lead-up to the Pavey hearing. In particular, the magistrate 

judge highlighted that even though Boykin described himself as “mentally 

unstable” and “illiterate,” he was a “relatively savvy litigator,” who was able to 

communicate lucidly in the status conference calls. He also noted that the Pavey

hearing was “straightforward” and expressed confidence in Boykin’s ability to 

discuss the steps he took to exhaust his remedies and present documentary 

evidence. Cf. Walker v. Price, 900 F.3d 933, 941 (7th Cir. 2018) (holding that a jury 

trial conducted over video conference was complicated enough to warrant the 

appointment of counsel). 

Because both the district court and the magistrate judge reasonably 

weighed Boykin’s ability to represent himself against the simplicity of the 

proceedings, we conclude that neither denial was an abuse of discretion. 

Finally, Boykin urges us to encourage the district court to appoint an 

attorney on remand in light of the defendants’ error and any potential 

complications that may arise from it. While the district court has the discretion to 

grant a renewed motion for recruitment of counsel if new developments warrant 

it, we decline to put a thumb on the scale. The decision to appoint counsel on 

remand remains wholly within the discretion of the district court. 

We AFFIRM in part, VACATE in part, and REMAND to the district court 

for proceedings consistent with this order.