In the

United States Court of Appeals

For the Seventh Circuit ____________________

No. 15-2830

MICHAEL N. THOMAS,

Plaintiff-Appellant,

v.

RAYMOND ANDERSON, et al.,

Defendants-Appellees.

____________________

Appeal from the United States District Court

for the Central District of Illinois.

No. 12-C-1343 — Joe Billy McDade, Judge.

____________________

ARGUED FEBRUARY 7, 2018 — DECIDED NOVEMBER 14, 2018

AS AMENDED ON PETITION FOR REHEARING JANUARY 11, 2019

____________________

Before BAUER, ROVNER, and SYKES, Circuit Judges.

SYKES, Circuit Judge. Michael Thomas, an Illinois prisoner 

formerly confined at Hill Correctional Center, alleged that

prison guards attacked him with excessive force and that the 

beating and subsequent disciplinary proceedings were in 

retaliation for lawsuits and grievances he filed. He sued the 

guards and other prison officials seeking damages under 

42 U.S.C. § 1983. In the course of pretrial proceedings, the 
2 No. 15-2830

district judge required the parties to stipulate to the events 

preceding the attack and ruled that certain inmate witnesses 

must appear, if at all, by video conference. The judge also 

declined Thomas’s request for recruited counsel, determining that he was competent to litigate the suit pro se. At trial 

the judge entered judgment as a matter of law for the defendants on all claims except those asserting excessive force 

by two officers. The jury decided those claims against 

Thomas. 

On appeal Thomas contests the judge’s evidentiary rulings, the decision not to recruit counsel, and the partial 

judgment for the defendants as a matter of law. Because 

Thomas’s trial testimony allowed for a permissible inference 

of retaliation, the judge should not have taken the retaliation 

claims from the jury. We reverse the judgment on those 

claims. In all other respects, we affirm.

I. Background

Thomas’s lawsuit centers on an altercation that occurred 

on March 24, 2011, at Hill Correctional. Thomas alleged that 

two prison guards, Raymond Anderson and Richard 

Cochran, attacked him and that a third guard, Roger 

Fitchpatrick, failed to intervene to stop the attack, all in 

violation of his rights under the Eighth Amendment. He also 

claimed that the officers violated the First Amendment by 

retaliating against him for his past grievances and lawsuits: 

Anderson, Cochran, and Fitchpatrick by assaulting him (or 

failing to intervene); Anderson and Cochran by issuing 

phony disciplinary charges after the attack; and two hearing

officers, Cornealious Sanders and Scott Bailey, by finding 

him guilty of the charges knowing that they were baseless. 
No. 15-2830 3

At trial Thomas testified to his version of the events on 

March 24 and the disciplinary proceeding that followed. He

testified that on the morning of March 24, he was showering 

before the morning lockup when Officers Anderson,

Cochran, and Fitchpatrick saw him and signaled—seven or 

eight minutes early—that all inmates must immediately 

return to their cells. Thomas hurried, still soapy and partially undressed, to return to his cell. Cochran slammed the cell 

door shut before Thomas could enter, but the door bounced 

open and he managed to slip inside. Anderson, Cochran, 

and Fitchpatrick followed, and Anderson told Cochran to 

“write that MF’er a ticket” for refusing to enter his cell after 

the lockup signal. When Thomas protested, Cochran cornered him, cursing and screaming. Anderson then rebuked 

Thomas, saying, “You should have thought about that 

before you made all of [your] complaints about me and 

filing grievances about me in the prison.” Thomas had 

previously filed grievances complaining that Anderson had 

(among other things) threatened to retaliate against him for 

notifying prison administrators, legislators, and government 

officials of problems at Hill, including safety and sanitation.

Cochran told him that he “didn’t like inmates who tried to 

get staff in trouble.”

Thomas testified that after the officers entered his cell, 

Cochran handcuffed him and Fitchpatrick ordered his

cellmate to leave. Anderson then directed Cochran to teach 

Thomas how to keep his “mouth closed and to not make the 

staff upset.” Cochran pushed Thomas to the ground and 

punched him while a second guard “yanked” him. Thomas 

told the jury that this second guard must have been

Anderson because he could see Fitchpatrick standing back 

“egging them on.” The three guards then pulled Thomas 
4 No. 15-2830

from his cell and threw him against the corridor walls before 

sending him to the segregation unit.

The defendants disputed Thomas’s version of events, 

denying that they used excessive force against him. 

Anderson and Cochran testified that Thomas resisted the 

lockup and shouted racial epithets. Cochran acknowledged 

that he handcuffed Thomas but denied using excessive force

in doing so. Fitchpatrick echoed that Thomas had been 

shouting and swearing, and he too denied that Cochran used

undue force. Anderson testified that he told Fitchpatrick that 

he did not want anything to do with Thomas because of his 

previous grievances against him. Fitchpatrick admitted 

knowing that Thomas had filed grievances against 

Anderson; Cochran testified that he did not know about the 

grievances. 

Disciplinary proceedings against Thomas followed this 

incident. Cochran wrote Thomas up for resisting the lockup, 

making threats, being insolent, and disobeying a direct 

order. Officers Bailey and Sanders conducted the disciplinary hearing on these charges; the parties disagree about 

what happened. According to Thomas, Bailey and Sanders 

told him that “their hands were tied” and they “couldn’t” 

exonerate him. He testified that Sanders mentioned that he 

was about to retire and did not want trouble, and Bailey said 

that Thomas “shouldn’t have been making complaints about 

the prison” if he did not want “to be in a situation like” this 

one. Sanders denied saying that he found Thomas guilty 

because his “hands were tied” or that Thomas should not file 

grievances. Likewise, Bailey denied warning Thomas against 

complaining about prison employees. Thomas was found 

guilty of the rules violations and received a month in segre-
No. 15-2830 5

gation and then spent three months assigned to C grade, a 

more restrictive confinement. 

The judge restricted the scope of the trial in several ways

that are relevant to this appeal. In lieu of admitting voluminous evidence of Thomas’s prior grievances, the judge 

required the parties to stipulate that Thomas had filed 

numerous grievances against Anderson and others, and that 

he also had sued Anderson. Over Thomas’s objection, the 

judge also refused to permit testimony about events before 

March 24. The judge barred the testimony of two of 

Thomas’s proffered inmate witnesses, Kiante Simmons and

Xavier Landers, who were no longer in state prison. Thomas

thought that they might be incarcerated elsewhere—perhaps 

the Cook County Jail and an unnamed federal facility, 

respectively—but this supposition was just speculation. In 

any event, even assuming that they were in custody somewhere else, the judge was only willing to permit them to 

testify via video conference; he would not order them produced for in-person testimony.

Early on in the case, the judge had denied Thomas’s several requests for recruited pro bono counsel. Closer to trial, 

the judge did not rule on Thomas’s requests to reconsider 

those earlier decisions. Finally, at the close of the evidence, 

the judge took several claims from the jury, granting the 

defendants’ motion for judgment as a matter of law under 

Rule 50 of the Federal Rules of Civil Procedure. In the end 

the jury was asked to decide only if Anderson and Cochran 

had used excessive force and, if so, whether Anderson had 

been motivated to do so by a desire to retaliate for Thomas’s 
6 No. 15-2830

lawsuits and grievances. On these claims the jury returned a 

verdict for Anderson and Cochran. This appeal followed.1

II. Analysis

We begin with Thomas’s argument that the judge was 

wrong to grant the defendants’ Rule 50 motion on two 

claims: that Anderson and Cochran retaliated against him by 

issuing a phony disciplinary report and that Sanders and 

Bailey retaliated against him by conducting a sham disciplinary hearing. Judgment as a matter of law is justified only if 

after a full hearing there is no “legally sufficient evidentiary 

basis to find for the party on that issue.” FED. R. CIV.

P. 50(a)(1); Lopez v. City of Chicago, 464 F.3d 711, 718 (7th Cir. 

2006). Because the judge overlooked testimony supporting 

Thomas’s position and failed to view evidence in the light 

most favorable to him, we reverse the judgment on these 

claims. 

As to Anderson, the judge explained that “the only evidence relating to any retaliation” was Anderson telling 

Fitchpatrick that he did not want anything to do with 

Thomas because of his previous grievances. But Thomas’s

account of the encounter provided an evidentiary basis from 

which a reasonable jury could infer retaliatory motive. 

Thomas testified that (1) Anderson called for an early lockup 

after seeing him in the shower; (2) Anderson told Cochran to 

write Thomas a ticket for refusing to lock up, even though

Thomas did not refuse; and (3) when Thomas protested that 

 1 We sua sponte recruited pro bono counsel for Thomas on appeal. Barry 

Levenstam, Remi J.D. Jaffre, and Jenner & Block LLP, accepted the 

appointment. They have ably discharged their duties. We thank them for 

their service to their client and the court. 
No. 15-2830 7

the ticket was baseless, Anderson scoffed: “You should have 

thought about that before you made all of [your] complaints 

about me and filing grievances about me in the prison.” It 

was for the jury to decide which account to believe. 

Passananti v. Cook County, 689 F.3d 655, 659 (7th Cir. 2012) 

(noting that in assessing a Rule 50 motion, “[t]he court does 

not make credibility determinations or weigh the evidence”); 

Lopez, 464 F.3d at 720 (same). A jury could reasonably conclude from Thomas’s version that Anderson orchestrated 

Thomas’s “late” return to his cell to trump up a false disciplinary charge in retaliation for Thomas’s past complaints.

We reach a similar conclusion about Cochran. The judge

granted the Rule 50 motion on the retaliation claim against 

him because he thought that there was no evidence that 

Cochran knew of Thomas’s litigation. But Thomas testified 

that Cochran was in the cell when Anderson told Thomas 

that he should not have filed grievances and that Cochran 

himself said that he “didn’t like inmates who tried to get 

staff in trouble.” A jury could reasonably infer based on 

these statements that Cochran helped call for an early lockup 

before Thomas finished showering as revenge for Thomas’s 

grievances and lawsuits. See Gevas v. McLaughlin, 798 F.3d 

475, 477 (7th Cir. 2015) (assessing a Rule 50 motion requires 

the court “to assume the truth of” the testimony of the 

nonmoving party).

Finally, the jury should have been permitted to decide 

whether Bailey and Sanders held a hearing that they knew 

was a sham for the purpose of retaliating against Thomas. 

The judge entered judgment in their favor on this claim 

because again he thought no evidence showed that these 

defendants knew of Thomas’s past grievances. But retaliato-
8 No. 15-2830

ry motive can be inferred from Thomas’s account of the 

hearing. See id. at 477, 481–82. Thomas testified that Bailey 

told him that he “shouldn’t have been making complaints 

about the prison” if he didn’t “want to be in [this] situation” 

and that his “hands were tied.” And he testified further that 

Sanders agreed that his “hands were tied” and expressed 

concern that conducting a fair hearing could interfere with 

his retirement.

Bailey and Sanders respond that Thomas’s testimony 

suggests only that they were motivated by personal concerns, not by Thomas’s First Amendment activity. But a 

retaliation claim only requires evidence that the plaintiff’s

protected activity was “at least a motivating factor” for the 

retaliatory action. Perez v. Fenoglio, 792 F.3d 768, 783 (7th Cir. 

2015) (emphasis added) (quoting Bridges v. Gilbert, 557 F.3d 

541, 546 (7th Cir. 2009)). Thomas’s testimony, if a jury finds it 

credible, could support an inference that retaliation for his 

past grievances was a motivating factor in their decision. 

Viewed as a whole, there was sufficient evidence to present 

this claim to the jury. 

A. Events Before March 24, 2011

Thomas also contests the judge’s decision to bar testimony about events before March 24, 2011, and instead require

the parties to stipulate that Thomas had filed grievances 

against Anderson and other prison officials. Thomas proposed to introduce at trial more than 150 complaints and 

grievances he had filed. The judge ruled that admitting that 

number of grievances could confuse the issues, prolong the 

trial, and possibly prejudice the jurors. And apart from 

concerns about the quantity, the judge worried that jurors 
No. 15-2830 9

would be tempted to assess whether the grievances were 

true. 

Thomas contends that this restriction disabled him from 

showing that his grievances actually motivated Anderson to 

retaliate against him. He argues that he could have used 

evidence from before March 24 to show that Anderson had 

threatened to issue “bogus disciplinary reports” and physically harm him if he did not stop filing grievances. In place 

of this evidence, Thomas says, the stipulation informed the 

jury only that he had engaged in constitutionally protected 

activity. 

That is not an accurate characterization of the stipulation.

The stipulation informed the jury in general terms of 

Thomas’s grievance and complaints about prison conditions. 

It also explained that Thomas had accused Anderson of 

“locking prisoners up in their cells earlier than the allowable 

time, making racial comments to inmates and threatening 

inmates, including plaintiff, with punishment for making 

complaints about [Anderson].” That was enough to convey 

to the jury the basic background facts pertaining to the 

alleged retaliatory motive.

Moreover, the judge was understandably concerned that 

permitting Thomas to introduce the entire record of his prior 

grievances would bog down the proceedings and distract 

and potentially confuse the jurors. To avoid those risks, the 

judge reasonably concluded that the stipulation was an 

appropriate substitute for this evidence. See Marcus &

Millichap Inv. Servs. of Chi., Inc. v. Sekulovski, 639 F.3d 301, 307 

(7th Cir. 2011). That ruling was well within the judge’s

authority to manage the efficiency of the trial by streamlining Thomas’s voluminous proposed evidence. See Whitfield 
10 No. 15-2830

v. Int’l Truck & Engine Corp., 755 F.3d 438, 447 (7th Cir. 2014).

We see no abuse of discretion.

B. Exclusion of Kiante Simmons and Xavier Landers

Thomas also challenges the judge’s decision to exclude

the testimony of two inmate witnesses, Kiante Simmons and 

Xavier Landers. In both instances the judge stated that the 

witnesses must testify, if at all, using video-conferencing

technology. Because Thomas did not produce videoconference addresses for Simmons and Landers, they did not 

testify.

First, to the extent that either witness would have testified about events before March 24, 2011, their exclusion was 

harmless because the judge’s earlier ruling foreclosed that 

evidence. And contrary to Thomas’s argument on appeal, 

the judge’s failure to apply the balancing test outlined in 

Stone v. Morris, 546 F.2d 730 (7th Cir. 1976), was not reversible error. By its terms, Stone applies when a district judge 

must decide whether a “plaintiff-prisoner in a civil rights 

suit” should be brought to court for trial. We explained that 

the judge should weigh the logistical difficulties and particular security risks of transporting the plaintiff-prisoner 

against the prisoner’s interest in testifying in person and 

examining the witnesses face-to-face. Id. at 735–36.

We have not extended Stone’s particularized balancing 

test to nonparty inmate witnesses. As we’ve explained more 

recently, forcing a prisoner-plaintiff to try his case remotely 

by video conferencing raises special challenges—e.g., the 

inability of the prisoner-plaintiff to see jurors’ faces, the 

difficulty in examining and evaluating witnesses, and the 

complications associated with communicating with the court 
No. 15-2830 11

and opposing counsel. See Perotti v. Quinones, 790 F.3d 712, 

725 (7th Cir. 2015). Those concerns do not affect nonparty

inmate witnesses testifying live via video-conferencing 

technology. 

Instead, Rule 43(a) of the Federal Rules of Civil Procedure and 28 U.S.C. § 2241(c)(5) bear directly on this question. 

The latter permits the court to issue a writ of habeas corpus 

when “[i]t is necessary to bring [a prisoner] to court to testify 

or for trial.” § 2241(c)(5). And under Rule 43(a), the judge 

has discretion to allow live testimony by video for “good 

cause in compelling circumstances and with appropriate 

safeguards.” Thornton v. Snyder, 428 F.3d 690, 698 (7th Cir. 

2005) (“Rule 43 affirmatively allows for testimony by videoconference in certain circumstances ... .”).

Here, another inmate witness testified to the same information that Thomas says he wanted to cover with Simmons 

and Landers. The judge determined that Thomas’s interest in 

their testimony was outweighed by the expense and inconvenience of transporting them for trial (assuming they could 

be located and were in fact in custody). So he allowed them 

to testify, if at all, only by video. That ruling was well within 

his discretion.

Moreover, Thomas has not come close to establishing

that he was prejudiced by the absence of their testimony. See

Mason v. S. Ill. Univ. at Carbondale, 233 F.3d 1039, 1042–43

(7th Cir. 2000) (explaining that the party challenging the 

exclusion of the evidence must record the grounds for 

admissibility, content, and significance of the excluded 

testimony). Thomas suggests that Simmons and Landers 

would have recalled the March 24 altercation better than the 

inmate who testified in support of his story. But he has no
12 No. 15-2830

evidence to back up that assertion. Accordingly, the judge’s 

failure to apply Stone’s particularized balancing test was not 

reversible error.2 

C. Recruitment of Counsel

Finally, Thomas argues that the judge abused his discretion by declining to recruit counsel to represent him. We 

disagree. Thomas filed two requests for counsel in February

2014 and February 2015. But neither request showed that he 

tried to obtain counsel on his own or that he was precluded 

from doing so. So the judge’s denial of these requests was 

not an abuse of discretion. Pruitt v. Mote, 503 F.3d 647, 654–

55 (7th Cir. 2007) (en banc); see Romanelli v. Suliene, 615 F.3d 

 2 We note that the Third Circuit has said that the Stone balancing test

applies to a request by a prisoner-plaintiff for production of nonparty 

inmate witnesses at a civil trial. Jerry v. Francisco, 632 F.2d 252, 255–56 (3d 

Cir. 1980). But in Jerry the magistrate judge and the district court completely overlooked the prisoner-plaintiff’s motion to produce inmate 

witnesses to testify at his civil-rights trial. The court held that “[i]t was 

clearly error to fail to act on the motion and exercise the discretion.” Id.

at 256. More importantly, without analysis and in a single sentence, the 

Third Circuit imported the Stone balancing test to this situation. Id. (“We 

believe that the same considerations must be weighed in determining 

whether a writ of habeas corpus ad testificandum should be issued to 

secure the appearance of an incarcerated non-party witness at the 

request of an incarcerated plaintiff.”). The court did not pause to consider that the concerns underlying Stone—namely, safeguarding a prisonerplaintiff’s access to the courts— are not implicated in precisely the same 

way when the inmate is a witness for the plaintiff rather than the plaintiff

himself. Finally, and most significantly, the Third Circuit was not confronted with the ready alternative of live inmate testimony by videoconferencing technology, which is now widely available and was the 

mode of testimony the judge settled on here. For these reasons, Jerry is 

distinguishable.
No. 15-2830 13

847, 851–52 (7th Cir. 2010) (explaining that the denial of a 

motion to recruit counsel was justified by the district court’s 

finding that the plaintiff had not tried to obtain counsel).

And the judge did not limit his decision to that particular 

defect; he also ruled that Thomas was competent to litigate 

his own case. 

Before trial, Thomas twice more asked that the judge “reconsider appointing counsel.” Although these requests 

cured the technical defect in the earlier ones—Thomas 

specifically stated that he had tried unsuccessfully to find 

counsel—the judge did not rule on them. But once a judge 

appropriately addresses and resolves a request for recruitment of pro bono counsel, he need not revisit the question. 

Pruitt, 503 F.3d at 658; cf. Childress v. Walker, 787 F.3d 433, 

442–43 (7th Cir. 2015) (finding that it was an abuse of discretion to act on neither of the plaintiff’s requests for counsel); 

Dewitt v. Corizon, Inc., 760 F.3d 654, 657–59 (7th Cir. 2014) 

(finding that it was an abuse to deny the initial motions for 

counsel without explaining the reasoning and then to ignore

subsequent requests). We find no error.

III. Conclusion

Accordingly, the judgment is REVERSED, and the case is 

REMANDED for further proceedings on the retaliation claims 

against Anderson, Cochran, Sanders, and Bailey. In all other 

respects, the judgment is AFFIRMED.