NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed.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 an d 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 theref ore failed to exhaust his administrativeNo. 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 exha ustion, the district court dismissed the suit. It concluded that Boykin neve r 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 distri ct court an opportunity to reconsider its

exhaustion determination. Given the defendants’ concession, we vacate the district court’s exhaustion ruling and re mand 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 duri ng 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 an other 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 Illin ois Administrative Code, an inmate can commence administrative proceedings by filing a standard grievance complaint within 60 days of the incident. I LL

. A DMIN

. C ODE 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 Marc h 26, 2016—the day of the incident. The prison can respond to an emergency comp laint 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 theNo. 18-1154 Page 3

inmate of its decision to deny the em ergency grievance by checking the “nonemergency” box on the inmate’s emerge ncy 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 recruitm ent 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 Boyki n’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 sh all 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 ex haust 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 exhaus tion, 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 retu rned 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 ha ve been returned to him without an answer. During the hearing, Boykin requested Dixon’s grievance log. DixonNo. 18-1154 Page 4

produced Boykin’s Cumulative Co unseling 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 re commendation and dismissed Boykin’s suit on two grounds. First, it held th at Boykin failed to exhaust his remedies because he never filed an emergency grievance complaint. Alternatively, it held that even if Boykin had filed an emer gency grievance complaint, he did not exhaust his remedies because he failed to take advantage of the opportunity to resubmit his emergency grievance complain t 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 arg ues 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 alternat ive ground for dismissal was based on a legally erroneous presumption that th e standard grievance process was an “available” remedy that he was required to exhaust under the PLRA.

Since this appeal was filed, the defend ants 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 ac knowledging that Dixon maintains two separate grievance logs—one for standard grievance complaints and another for emergency complaints. The Grievance Trac king Log produced during Boykin’s Pavey hearing was the former. In light of th is error, the defendants have asked us

to remand the case for another exhausti on 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 pr otocol was an “available” remedy thatNo. 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 relie f 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 grievanc e 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) (holdi ng 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 distri ct court’s exhaustion determination, Boykin also argues that the district co urt and the magistrate judge erred when they denied his two requests to recruit counsel. We disagree.

“There is no constitutional or statut ory 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 pl aintiff’s request for recruitment of counsel, the court must consider two ques tions: “(1) has the indigent plaintiff made a reasonable attempt to obtain coun sel or been effectively precluded from doing so; and if so, (2) given the difficul ty 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 th e second prong turns on whether “the difficulty of the case—factually and le gally—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 ma gistrate 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 competentl y litigate on his own behalf based onNo. 18-1154 Page 6

the fact that his filings were “reason ably 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 pl aintiff’s literacy, communication skills, educational level, and litigation experience ”). The district court also adequately concluded that Boykin’s case was “not ve ry 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 cour t also acknowledged that it could not make a conclusive determination so early in the proceedings an d 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 pl aintiff’s request at an early stage in the proceedings was reasonable because when “t he 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 simil ar 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 “relati vely savvy litigator,” who was able to communicate lucidly in the status conf erence calls. He also noted that the Pavey hearing was “straightforward” and expre ssed 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 an d the magistrate judge reasonably weighed Boykin’s ability to represent himself against the simplicity of the proceedings, we conclude that neither de nial was an abuse of discretion.

Finally, Boykin urges us to encourage the district court to appoint an attorney on remand in light of th e 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 di scretion of the district court.

We AFFIRM in part, VACATE in part , and REMAND to the district court for proceedings consistent with this order.