Eduardo Navejar v. Akinola Iyiola

After examining the briefs and record, we have concluded å
that oral argument is unnecessary. Thus, the appeal is sub-
mitted on the briefs and the record. See FED. R. APP.
P. 34(a)(2)(C).
In the
United States Court of Appeals
For the Seventh Circuit
No. 12-1182
EDUARDO NAVEJAR,
Plaintiff-Appellant,
v.
AKINOLA IYIOLA, et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 09 C 4108—Virginia M. Kendall, Judge.
SUBMITTED APRIL 19, 2013 —DECIDED MAY 29, 2013 å
Before EASTERBROOK, Chief Judge, and WILLIAMS
and HAMILTON, Circuit Judges.
PER CURIAM. Eduardo Navejar, an Illinois state
prisoner, brawled with a prison guard. He swears that

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after guards subdued and handcuffed him, they
kicked, stomped, and pepper-sprayed him twice, and
then they denied him adequate medical care. The dis-
trict court denied his motions to recruit counsel and later
entered summary judgment for the guards on his
claims that they violated the Eighth Amendment. On
appeal Navejar argues that the court erred by refusing
to recruit counsel for him. Because the court applied
the wrong legal standard to Navejar’s motion, and the
lack of counsel prejudiced him, we reverse.
We assume that the following factual allegations of
the complaint are true and draw all possible inferences
in favor of Navejar. Biblia Abierta v. Banks, 129 F.3d 899,
902 (7th Cir. 1997). Navejar was imprisoned in State-
ville Correctional Center in 2008. One evening while
proceeding to the cafeteria, Navejar spoke to other
inmates in their cells. Akinola Iyiola, a lieutenant at the
prison, ordered him to get out of the cafeteria line
because prison rules forbid inmates, while being trans-
ported, from stopping to speak to other inmates. Navejar
disobeyed the order, became belligerent, and punched
Iyiola. Other guards soon converged on the scene to
assist Iyiola, and they wrestled Navejar to the ground
where he was soon handcuffed.
Navejar described in an affidavit and at his deposi-
tion the force that guards used after they handcuffed and
subdued him. He testified that Iyiola kicked him in
the forehead near his eye, and an unidentified guard
stomped his head against the ground. Next another
guard, Sergeant Michael Grant, pepper-sprayed Navejar.

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No. 12-1182 3
Guards then dragged Navejar along the floor and
carried him down some stairs where Iyiola sprayed
more pepper spray in Navejar’s face. Guards then
left Navejar alone for a half-hour in a segregation cell,
while he screamed in pain, before he was allowed to
wash off the pepper spray.
The next morning a guard brought Navejar to State-
ville’s health care unit, where nurses examined him.
But before a doctor could provide medical attention,
Lieutenant Glen Elberson escorted Navejar out of the
health care facility, explaining that he was being trans-
ferred to Pontiac Correctional Center. That afternoon at
Pontiac, Navejar was examined by a physician, who
concluded, after administering X-rays, that he had
suffered only bruises and scratches.
Prison officials investigated the clash between Navejar
and Iyiola and charged Navejar with four disciplinary
violations: assaulting prison staff, creating a dangerous
disturbance, insolence, and disobeying an order, all
of which he denied. After a hearing, the disciplinary
board found Navejar guilty. It concluded that Navejar
started the physical altercation when he “suddenly
swung” at Iyiola and that Iyiola was “hit on the nose
and upper lip” during the ensuing fight. Among other
punishments, the board revoked one year of good time
credits. Navejar appealed the ruling and submitted a
grievance accusing the guards of using excessive force.
He lost both the appeal and the grievance.
Navejar then sued Iyiola, Grant, Elberson, and other
unnamed prison guards in federal court, alleging that

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the guards used excessive force and were deliberately
indifferent to his serious medical needs in violation of
the Eighth Amendment. See 42 U.S.C. § 1983. (He also
brought a claim, no longer pursued, that the discipline
violated his right to due process.) During discovery,
the defendants produced a few documents “as a cour-
tesy” to Navejar. But they refused Navejar’s other
requests, including his request for more documents
about or recordings of the altercation, citing security
risks and burden.
Navejar moved four times for the recruitment of
pro bono counsel. He filed two of his motions at the start
of the case, another after the guards moved to dismiss
his due-process claim, and a fourth after they moved
for summary judgment. His motions asserted why he
believed he was incapable of representing himself: he
did not finish high school, he suffered from (an unspeci-
fied) mental illness, he had difficulty with English, he
had repeatedly been moved from prison to prison and
thus had trouble securing help for his case, and he had
been denied access to the law library during prison
lockdowns. Navejar’s first two motions did not assert
that he had sought counsel on his own; the district court
never ruled on these motions. The third and fourth mo-
tions, though, explained that Navejar had contacted
attorneys to represent him. The court denied these
two motions.
But the court denied the latter two motions without
citing Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc),
and instead relied on older cases in brief minute orders.

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No. 12-1182 5
It began by applying the legal standard in Gil v.
Reed, 381 F.3d 649, 656 (7th Cir. 2004), in evaluating
(1) whether the plaintiff appears competent “to try” the
case himself, and (2) whether recruiting counsel “would
provide a substantial benefit to the court or the parties,
potentially affecting the outcome.” The court concluded
that counsel was unnecessary in Navejar’s case because
he “alleged no physical or mental disability” pre-
cluding him from investigating the facts of his case and
“[n]either the legal issues raised in the complaint nor
the evidence that might support Plaintiff’s claims are so
complex or intricate that a trained attorney is necessary.”
The district court granted summary judgment for the
prison guards. The court struck Navejar’s statement of
material facts and deemed admitted the defendants’
statement, reasoning that Navejar had committed two
critical errors: (1) impermissibly attempting to create
a fact dispute by citing “self-serving evidence”—his
affidavit where he asserted that guards beat and pepper-
sprayed him after he was cuffed and subdued; and
(2) adding his own factual assertions in response to
the defendants’ statement of facts, rather than pre-
senting them in a separate statement, as required by
N.D. ILL. L. R. 56.1(b)(3)(C). With the defendant’s version
of events uncontradicted, the court concluded that no
reasonable jury could determine that the guards used
excessive force against Navejar. Alternatively, the court
reasoned, Navejar’s excessive-force claim was barred
by Heck v. Humphrey, 512 U.S. 477, 487 (1994), because
the prison disciplinary board found Navejar guilty of
assaulting Iyiola. Finally, the court concluded that

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Navejar could not recover for deliberate indifference
against Elberson because no evidence suggested that
Navejar suffered from a serious medical condition or
that Elberson had a culpable mental state. (The district
court’s treatment of deliberate indifference was clearly
correct, so we say nothing further about it.)
Navejar makes only one argument on appeal: that
the district court abused its discretion by failing to
recruit him a lawyer. In a civil case, the court has dis-
cretion to recruit counsel to represent a litigant who is
unable to afford one. 28 U.S.C. § 1915(e)(1); Ray v. Wexford
Health Sources, Inc., 706 F.3d 864, 866-67 (7th Cir. 2013).
In Pruitt we refined the standards for evaluating
whether to recruit counsel. If a plaintiff makes a rea-
sonable attempt to secure counsel, the court must
examine “whether the difficulty of the case—factually and
legally—exceeds the particular plaintiff’s capacity as a
layperson to coherently present it.” Pruitt, 503 F.3d at
655. This inquiry does not focus solely on the plain-
tiff’s ability to try his case—it also includes other
“tasks that normally attend litigation” such as “evidence
gathering” and “preparing and responding to motions.”
Id. When ruling on a motion to recruit counsel, the
court should take account of all evidence in the record
relevant to the plaintiff’s capacity to litigate. Id. We
will overturn the district court’s decision only when
the court has abused its discretion based on the
evidence in the record when it ruled on the motion. Id.
at 658-59. And even if the district court abuses its dis-
cretion, we will reverse only if the plaintiff shows
prejudice—“a reasonable likelihood that the presence

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No. 12-1182 7
of counsel would have made a difference in the outcome
of the litigation.” Id. at 659 (emphasis removed).
In its orders denying Navejar’s § 1915(e)(1) motions,
the court erred in three ways. First, by relying on Gil
instead of Pruitt, the court believed that it should decide
whether Navejar was competent to try his case. See Gil,
381 F.3d at 656. But Pruitt clarified that the proper
inquiry focuses on “whether the plaintiff appears com-
petent to litigate his own claims,” 503 F.3d at 655
(emphasis in original), with tactics like discovery and
motion practice “that normally attend litigation.” Id.
Second, by stating without elaboration that Navejar’s
claims are not “so complex or intricate that a trained
attorney is necessary,” the district court resurrected
boilerplate language that we disapproved of in Pruitt
because it ignores the plaintiff’s abilities. Id. at 649, 660.
Although the court briefly referred to Navejar’s compe-
tence, stating that Navejar “alleged no physical or
mental disability,” the record contradicts its statement.
Navejar stressed his limited education, mental illness,
language difficulties, and lack of access to fellow
prisoners or other resources for assistance after his
transfer from Stateville. See also ILL. ADMIN. CODE tit. 20,
§ 701.180(a) (restricting mail correspondence between
inmates in different prisons). Third, the court asked
whether recruiting counsel would substantially benefit
“the court or the parties, potentially affecting the out-
come.” But in Pruitt, we distinguished the district
court’s inquiry from the standard of appellate review.
See 503 F.3d at 654. Pruitt nowhere suggests that
a district court should consider whether recruiting

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8 No. 12-1182
counsel would affect the outcome of a case; instead, that
inquiry is reserved for the appellate court’s review for
prejudice. See id. at 659. By applying the wrong legal
standard and failing to consider the record, the district
court abused its discretion. See Bracey v. Grondin, No. 12-
1644, 2013 WL 1007709, at *2 (7th Cir. Mar. 15, 2013);
Santiago v. Walls, 599 F.3d 749, 765 (7th Cir. 2010);
Pruitt, 503 F.3d at 660.
The district court, unfortunately, is not alone in
relying on pre-Pruitt case law. Many other district judges
in the Northern District of Illinois have recently and
regularly issued substantially similar rulings. We have
found more than 100 rulings from the Northern District
of Illinois since Pruitt using the phrase “so complex or
intricate that a trained attorney is necessary.” See, e.g.,
Velasquez v. Kane Cnty. Jail Adult Judicial Center, No. 13
C 0644, 2013 WL 523827, at *3 (N.D. Ill. Feb. 11, 2013);
Allen v. Wexford Health Sources, No. 12 C 50380, 2012 WL
6587792, at *4 (N.D. Ill. Dec. 17, 2012); Birks v. Dart,
No. 12 C 7701, 2012 WL 5363439, at *3 (N.D. Ill. Oct. 30,
2012). Some of these orders (like the one in this case) do not
cite Pruitt or subsequent case law. See, e.g., Hutcherson v.
Cook Cnty., No. 10 C 6215, 2010 WL 3951897, at *2 (N.D. Ill.
Oct. 6, 2010); Banks v. Mills, No. 10 C 1486, 2010 WL
3307356, at *1 (N.D. Ill. Aug. 19, 2010); Logan v. Godinez, No.
10 C 4418, 2010 WL 2836957, at *3 (N.D. Ill. July 19, 2010).
And these are only the rulings searchable through pub-
lic databases; doubtless district judges have also used
this obsolete language in orders not captured in these
databases. We therefore take this opportunity to remind
district courts about the individualized analysis that

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No. 12-1182 9
Pruitt requires, see 503 F.3d at 655-56, and caution
against using boilerplate language that we criticized
en banc.
Even though the district court applied the wrong stan-
dard, we will not reverse without a showing of preju-
dice—a “reasonable likelihood that the presence of
counsel would have made a difference in the outcome
of the litigation.” Id. at 659 (emphasis removed).
Prejudice (unlike abuse of discretion) may be estab-
lished by an after-the-fact review “of a litigant’s poor
performance before or during trial.” Id. at 659-60.
In this case, the absence of counsel likely prejudiced
Navejar because the district court’s ruling on summary
judgment reveals two substantive errors. First, the court
adopted the erroneous legal argument raised by the
defendants in moving for summary judgment that
Navejar could not rely on “self-serving evidence” to
create a material factual dispute. This is wrong. “[W]e
long ago buried—or at least tried to bury—the miscon-
ception that uncorroborated testimony from the non-
movant cannot prevent summary judgment because it
is ‘self-serving.’ ” Berry v. Chicago Transit Auth., 618 F.3d
688, 691 (7th Cir. 2010); see also Darchak v. City of Chicago
Bd. of Educ., 580 F.3d 622, 631 (7th Cir. 2009); Buie v.
Quad/Graphics, Inc., 366 F.3d 496, 504-06 (7th Cir. 2004);
Payne v. Pauley, 337 F.3d 767, 770-73 (7th Cir. 2003). Here,
Navejar attempted to present his side of the story at
summary judgment through his affidavits and specific
references to his deposition testimony. He contended
that after he was subdued and handcuffed, Iyiola

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10 No. 12-1182
kicked him in the face, a prison guard stomped his
head, guards dragged him across the floor, Grant and
Iyiola pepper-sprayed him, and then left him alone for
30 minutes screaming in pain. With Navejar lacking
counsel to reply to the defendants’ erroneous con-
tention that the district court may safely disregard
his “self-serving” evidence, the district court accepted
that contention and thereby prejudiced Navejar.
Second, the defendants argued that Navejar’s excessive-
force claim was Heck-barred because the prison board
found Navejar guilty of disobeying orders and as-
saulting Iyiola. See Edwards v. Balisok, 520 U.S. 641, 648
(1997); Heck v. Humphrey, 512 U.S. 477, 487 (1994). The
district court again agreed with the guards, ruling
that Heck bars the excessive-force claim. We disagree,
observing as we have before that pro se prisoners are
often tripped up by Heck’s complexities. See Evans v.
Poskon, 603 F.3d 362, 364 (7th Cir. 2010); Gilbert v. Cook,
512 F.3d 899, 901 (7th Cir. 2008). Navejar cannot deny
that he disobeyed orders or assaulted Iyiola because
those denials would “necessarily imply” the invalidity
of his discipline. See Moore v. Mahone, 652 F.3d 722, 724-
25 (7th Cir. 2011); Evans, 603 F.3d at 364; Gilbert, 512
F.3d at 900. But Navejar’s assault on Iyiola is not neces-
sarily inconsistent with his sworn contention that the
guards answered his assault with excessive force
after they subdued him. See Gilbert, 512 F.3d at 901-
02 (reversing Heck-based judgment as a matter of
law against inmate, remanding for trial on inmate’s
excessive-force claim despite prison board finding that
inmate punched guard, and ordering district court to

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No. 12-1182 11
consider recruiting counsel); Skrtich v. Thornton, 280
F.3d 1295, 1301-02, 1304-05 (11th Cir. 2002). “Otherwise
guards (and for that matter any public employee)
could maul anyone who strikes them, without risk of civil
liability as long as the private party is punished by
criminal prosecution or prison discipline for the initial
wrong.” Gilbert, 512 F.3d at 901. Without a lawyer for
Navejar to advocate the limits of Heck, the court
mistakenly barred Navejar from arguing that, after he
assaulted Iyiola, the guards responded with dispropor-
tionate force. See Gilbert, 512 F.3d at 901-02.
Beyond these two errors, Navejar was also prej-
udiced by proceeding without a lawyer after he was
transferred from Stateville. Like the plaintiff who was
transferred to a new prison in Santiago, once Navejar
was transferred, he faced “significant problems” in liti-
gating pro se because, once at another institution, he
was not readily able to “identify key witnesses, depose
the defendants and gather pertinent evidence,” or
proceed against John Doe defendants because he
couldn’t ascertain their identities. Santiago, 599 F.3d
at 763, 766; see also Pruitt, 503 F.3d at 660. Navejar em-
phasizes that he was restricted from corresponding
with individuals at Stateville, including those who
might have been witnesses to the brawl. See ILL. ADMIN.
CODE tit. 20, § 701.180(a). Aware of these limits, the
named defendants avoided producing virtually every-
thing he requested in discovery. Counsel would
likely not have faced the same obstacles. See Santiago,
599 F.3d at 765.

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We conclude that there is a reasonable likelihood
that Navejar would have overcome summary judgment
with the assistance of counsel. Accordingly, we REVERSE
the grant of summary judgment on the excessive-force
claim and REMAND for further proceedings consistent
with this order, including the recruitment of counsel
for Navejar. See Pruitt, 503 F.3d at 661. In all other re-
spects the judgment is AFFIRMED.
5-29-13

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