Armin Wand Iii V Beckey Kramer
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 23-2204
ARMIN WAND, III,
Plaintiff-Appellant,
v.
BECKEY KRAMER,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Western District of Wisconsin.
No. 3:18-cv-00500-wmc — William M. Conley, Judge.
____________________
ARGUED APRIL 2, 2024 — DECIDED JULY 15, 2025
____________________
Before ROVNER, HAMILTON, and SCUDDER, Circuit Judges.
HAMILTON, Circuit Judge. This appeal deals with the
challenges a district court faces when a prisoner sues prison
officials alleging inadequate medical care under the Eighth
Amendment to the United States Constitution and/or state
law of negligence. Plaintiff Armand Wand III was a Wisconsin
prisoner when he developed appendicitis in February 2018.
When a prison nurse, defendant Beckey Kramer, first saw
Wand on February 13, 2018, she did not immediately
2 No. 23-2204
diagnose appendicitis or any other condition requiring
emergency treatment. When she saw Wand again the next
day, on February 14, she recognized that he probably had
appendicitis. She immediately contacted a doctor, and within
minutes she sent Wand to a hospital for emergency care and
surgery. Without a lawyer, Wand brought this suit against
Nurse Kramer and other officials. He seeks damages from
Nurse Kramer for failing to recognize that he needed
emergency care in that first visit on February 13. A jury found
in favor of Kramer after a trial in which Wand did not have a
lawyer. His lack of a lawyer presents the issue in this appeal.
After denying summary judgment on claims against Kra-
mer and another defendant, the district court managed to re-
cruit for Wand an experienced personal-injury lawyer. The
lawyer was willing to accept the appointment only for the lim-
ited purpose of helping Wand try to settle the case. After that
attempt was not successful, the court granted the lawyer’s
motion to withdraw. Plaintiff then filed his last motion seek-
ing recruitment of another lawyer, this time to try the case.
That last motion was the first writing that alerted the court
that plaintiff is legally blind and has a severe stutter, which
would pose unusual challenges for plaintiff representing him-
self in an already challenging jury trial focused on prison
health care.
The district court denied that final motion. Without decid-
ing whether that denial was an abuse of discretion, we find
that plaintiff has not shown prejudice such that reversal for a
new trial could be required. See generally Pruitt v. Mote, 503
F.3d 647, 659–60 (7th Cir. 2007) (en banc) (“Even if a district
court’s denial of counsel amounts to an abuse of its discretion,
we will reverse only upon a showing of prejudice.”). We reach
No. 23-2204 3
this conclusion primarily because of the substantive weakness
of plaintiff’s case. Plaintiff testified at trial that he first told
Nurse Kramer only on February 14, not February 13, that his
severe abdominal pain was located in the lower right quad-
rant, consistent with appendicitis. His trial testimony on this
point contradicted his earlier claims, but it was clear and con-
sistent on this key point. He could not credibly disavow that
testimony. We also see no reasonable prospect that a second
recruited lawyer could have found a qualified expert to testify
that Nurse Kramer’s response to Wand’s symptoms on Feb-
ruary 13—without acute abdominal pain in the lower right
quadrant—was a negligent or deliberately indifferent re-
sponse to a serious medical emergency. We therefore affirm
the district court’s judgment for defendant Kramer pursuant
to the jury’s verdict.
I. Plaintiff’s Abdominal Pain and Emergency Appendectomy
We take the facts primarily from the trial record, drawing
where needed from the pleadings and summary judgment
record. Plaintiff Armin Wand III is a Wisconsin prisoner.
Around 6:00 p.m. on February 12, 2018, Wand started to ex-
perience stomach pain. By 11:30 p.m., the pain intensified and
he began vomiting. Wand testified that he reported his symp-
toms to Correctional Officer Leonard Johnson around mid-
night. According to Wand, Johnson walked off without a re-
sponse. 1
1 Johnson testified at trial that he did not recall any interaction with
Wand that evening. The district court had found a material factual dispute
and denied Johnson’s motion for summary judgment. The jury ruled in
favor of Johnson, and in an earlier appeal, we affirmed that verdict. Wand
4 No. 23-2204
Around 7:30 the next morning, February 13, Wand re-
ported to another correctional officer that he was still having
severe stomach pain and had been vomiting. He asked for a
referral to the prison’s health services unit. The officer called
health services, and Wand was placed on the list to be seen
that day by prison medical staff. Wand was eventually sent to
the health services unit around 2:30 p.m. He was seen twenty
minutes later by defendant Beckey Kramer, a registered nurse
at the facility.
That February 13 examination is the crux of the case. Eve-
ryone agrees that the next day, February 14, Wand saw Nurse
Kramer again and complained of severe abdominal pain in
his lower right quadrant, and that Nurse Kramer responded
appropriately. She immediately contacted a physician, who
directed her to send Wand to a hospital right away. Wand was
on his way to a local hospital within minutes, and he quickly
had emergency surgery for a ruptured appendix. Wand’s
claim against Kramer is that she should have recognized a day
earlier, on February 13, that he needed emergency attention
and that her failure to do so amounted to negligence under
state law and/or deliberate indifference under the Eighth
Amendment.
The parties’ pretrial accounts of Kramer’s initial examina-
tion of Wand on February 13 agreed on many facts but dif-
fered on one key point. Wand and Kramer agree that he told
Kramer he was unable to keep food down, he could not sleep
because of his stomach pain, and his level of pain was ten on
a scale of one to ten. All of that is reflected in Kramer’s clinical
v. Kramer, No. 22-1989, 2023 WL 4045242 at *5 (7th Cir. June 16, 2023).
Wand’s claim against Johnson is not at issue in this appeal.
No. 23-2204 5
notes and both parties’ trial testimony. Before trial, however,
in his complaint, discovery responses, and summary judg-
ment briefing, Wand asserted that he also told Kramer during
that February 13 visit that his severe pain was located on the
right side of his abdomen near his appendix and that he be-
lieved the pain was caused by his appendix. See Dkt. 15 at 5,
¶8 (amended complaint).
Kramer’s account differed on that key point about local-
ized pain. She testified that on February 13, Wand said his
pain was focused on his stomach, above his navel, and not in
the lower right quadrant. She also testified, consistently with
her clinical notes, that his vital signs on February 13 were
within normal limits, his abdomen was soft and non-
distended, he had bowel sounds present in all four quadrants,
and his lips were dry.
Based on those symptoms and her nursing experience,
Kramer testified, she believed Wand’s symptoms on February
13 were gastrointestinal with a potential for dehydration. She
did not believe his symptoms signaled appendicitis or any
other urgent condition that would require immediate consul-
tation with a physician.
As the February 13 examination ended, Kramer provided
Wand an order for Pepto Bismol to settle his stomach, aceta-
minophen for pain, and ice chips for dehydration. (Prisoners
were not allowed ice chips without a medical order.) She also
ordered that he be placed on a liquid diet and rest for two
days with no work or recreation. She scheduled him for a fol-
low-up appointment two days later and told him to notify the
health services unit if his symptoms worsened.
6 No. 23-2204
Wand returned to his cell. He continued to suffer from se-
vere pain all that night of February 13 and into the next day,
February 14. In the late afternoon of February 14, Wand’s con-
dition had deteriorated to the point that he called over the
prison intercom that he needed to go to the hospital. He was
escorted to the health services unit, where Kramer saw him
again at approximately 5:45 p.m. Kramer observed that Wand
needed help to walk, was holding (in medical parlance,
“guarding”) his lower right abdominal quadrant, and was gri-
macing. Kramer testified that Wand said his nausea and vom-
iting had stopped overnight, but that the pain had localized
to his lower right quadrant on the afternoon of February 14.
Kramer took Wand’s vital signs. They had worsened from the
day before. These changes, especially the pain localized in the
lower right quadrant, were indications of appendicitis. Kra-
mer contacted the physician on call, who ordered that Wand
be sent to the nearest hospital emergency room immediately.
Kramer made the arrangements, and Wand was taken to the
nearest hospital fifteen minutes after he arrived at the clinic.
At the hospital, doctors determined that Wand’s appendix
had ruptured, and he underwent surgery. While he was still
recovering at the hospital, a CT scan revealed a buildup of flu-
ids in his stomach and lungs. On February 21, Wand was
transferred to a larger hospital for management of an ab-
dominal abscess and a buildup of excess fluid around his
right lung. Wand received antibiotics, as well as placement of
an abdominal drain and insertion of a chest tube. Two weeks
after the surgery, on February 28, Wand’s chest tube was re-
moved, and he was discharged from the hospital and re-
turned to prison.
No. 23-2204 7
II. Pre-Trial Proceedings
Wand filed this case under 42 U.S.C. § 1983 and state law
seeking compensation for pain and suffering resulting from
what he claimed was the delayed treatment of his appendici-
tis by Kramer and others. After the court screened the
amended complaint under 28 U.S.C. § 1915A, the case pro-
ceeded against Nurse Kramer and several other prison offi-
cials on Eighth Amendment and state-law negligence claims
based on allegations that those defendants failed to respond
adequately to his symptoms that turned out to be appendici-
tis.
With help from other inmates, Wand filed over two dozen
pretrial motions in the district court before the denial of his
final motion for recruited counsel. These included a motion
for leave to proceed in forma pauperis, motions for leave to
amend his complaint, and motions for summary judgment.
Wand also responded to defense motions, including a motion
to dismiss and motions for summary judgment.
During the pretrial proceedings, other inmates also helped
Wand file several motions for recruitment of counsel. Those
motions made no mention of Wand’s vision impairment or his
stutter, and they said little about the case other than that it was
a medical case that would be difficult to handle pro se. The
district court denied those motions on familiar grounds, in-
cluding the limited availability of volunteer counsel, but al-
ways without prejudice to reconsideration in case circum-
stances changed.
In the summer of 2020, all defendants who were still in the
case moved for summary judgment. In a detailed order, the
court granted summary judgment for another defendant but
8 No. 23-2204
denied summary judgment for defendants Kramer and John-
son. Wand v. Kramer, No. 18-cv-500-WMC, 2021 WL 311285, at
*5–8 (W.D. Wis. Jan. 29, 2021). In the summary judgment evi-
dence, there was a factual dispute about whether Wand had
complained to Kramer of lower right quadrant pain on Feb-
ruary 13. The district court reasoned that if a jury believed
Wand’s (pretrial) account of that examination, it could find
that Kramer’s response amounted to deliberate indifference
in violation of the Eighth Amendment. 2
At the end of the summary judgment order, facing the
prospect of a jury trial against Johnson and Kramer, the dis-
trict judge returned to the issue of recruiting counsel for
Wand. The court wrote that Wand had “ably and aggressively
litigated this case, and the court continues to believe that he
has a clear command on the relevant facts and legal stand-
ards.” Id. at *8. The court thought Wand could manage to try
his claim against Johnson, which would not require expert
testimony but only resolution of his and Johnson’s conflicting
accounts of what happened the evening of February 12. The
court recognized, though, that the claim against Nurse Kra-
mer would be more challenging because it might require ex-
pert testimony on the standard of care. Wand had told the
court that he had tried but failed to secure an expert witness.
The court also recognized that doing so would be especially
difficult for an incarcerated pro se litigant. Accordingly, the
2 In the January 29, 2021 order, the district court granted summary
judgment for Kramer and Johnson on Wand’s state-law negligence theory
based on a failure to provide a notice required by statute, Wand, 2021 WL
311285 at *8, but later realized the notice requirement did not apply. The
court reinstated the theory on November 23, 2021. Dkt. 243 at 3–4.
No. 23-2204 9
court granted Wand’s motion for recruitment of counsel. Id.
at *9.
The court’s order did not indicate an intention to recruit
counsel for only mediation. In fact, it discussed recruited
counsel’s role in retaining an expert “for purposes of trial.” Id.
Two weeks later, however, the court issued an order appoint-
ing an experienced trial attorney to represent plaintiff only
“for the limited purpose of representing plaintiff at least
through the mediation process.” Dkt. 217. The order also said
that if mediation were not successful, the lawyer could choose
whether to continue or stop representing plaintiff. The court
warned plaintiff that he would need to work with the re-
cruited lawyer and that, if plaintiff preferred not to work with
that lawyer, “it is highly unlikely that the court will recruit a
second attorney to represent him.” Id. at 2.
The attorney reported to the court that he had spent con-
siderable time with Wand but was not successful in resolving
the case. He told the court he wished to withdraw as counsel
for plaintiff. The court granted the lawyer’s motion to with-
draw and thanked him for his time and effort. The record does
not contain anything more specific from the attorney, but
plaintiff later complained that the attorney had recommended
that he settle for a sum that would have “barely covered the
cost of the filing fees, copies, postage and hours I spent litigat-
ing the case.”
III. Wand’s Final Motion for Recruitment of Counsel
After recruited counsel withdrew, Wand filed his final mo-
tion for recruitment of counsel, which also requested help in
finding expert witnesses. He supported the motion with his
most detailed brief on the subject, along with affidavits from
10 No. 23-2204
himself, his brother, and Marcellous L. Walker, a fellow in-
mate who called himself a jailhouse lawyer. This was the first
motion in which he told the court about his legal blindness
and stuttering. 3
Wand argued that his “physical and neurological” disabil-
ities surpassed “the general difficulties ascribed to incarcer-
ated litigants.” His stutter “causes him … more often than not
to take as long as one minute or more to say a simple phrase
or to ask a simple question.” Wand “is also legally blind,
which causes him to hold any written material to his nose and
which takes far more time than what it would normally take
even a person with simply poor reading vision.” He also ar-
gued that appointment of both counsel and a medical expert
was required because his claims involved “the untreated, de-
layed or inappropriate response to the plaintiff’s … serious
medical issues,” proof of which “almost always require[s] the
assistance of experienced counsel.” He noted that, “[a]s
demonstrated through discovery, in this case,” there is “a
question of [the] professional standard of care.” As an alter-
native to recruiting a new lawyer, Wand asked the court to
allow his brother, also an inmate at the same facility, to repre-
sent him at trial.
Wand’s supporting affidavit included records confirming
his status as legally blind and reminded the court of his “se-
vere speech impediment,” which “presents in the form of
stutters and pauses which has been a life-long issue.” Wand’s
brother said that Wand “relied upon [him] and other[s] to
3 Our count of Wand’s motions does not match his or the district
court’s, and the count is muddied a bit by motions to reconsider denials.
We focus on his final motion, Dkt. 235, and the court’s denial, Dkt. 243.
No. 23-2204 11
read written or typed materials, or to re-write certain things
in thick, black marker, in larger print so that he could better
make out the shapes of the letters and words.” Walker said
that other prisoners seek his “assistance in drafting their legal
materials and help in understanding the processes involved
in criminal and civil procedure.” Walker said he had helped
Wand with his case and noted Wand’s reliance on other jail-
house lawyers, calling Wand a “layman” with “very little,
hardly ANY knowledge about civil litigation.”
On November 23, 2021, the district court denied Wand’s
final motion for recruitment of counsel and for recruitment of
expert witnesses. The court’s reasoning for declining to try to
recruit an expert overlapped with its reasons for declining to
recruit counsel. The court noted that “the most crucial evi-
dence related to [Wand’s] claims against defendants were
likely to be what Wand himself told each of them and their
individual responses.” Dkt. 243 at 2. Thus, “Wand does not
need an expert to present the evidence most crucial to his
claims: he can testify about his interactions with Johnson and
Kramer; and he can cross-examine each of them about those
interactions.” Id.
The court recognized the need to establish the requisite
standard of care but noted that everyone agreed “that lower
right quadrant pain would be a symptom of appendicitis.” In
denying further recruitment of counsel, the judge wrote that
he would “permit Wand to question Kramer as an adverse ex-
pert, so that he can establish the appropriate standard of
care.” Id. “Although not a perfect solution, this appears to be
the best path forward, given recruited counsel’s declining to
pursue an expert further and the likelihood that an expert’s
12 No. 23-2204
opinion would not differ as to the basic standard of care from
that of Nurse Kramer.” Id. at 2–3.
In response to Wand’s argument that his speech impedi-
ment and legal blindness called for recruitment of counsel
and an expert about his impairments, the court wrote:
“Wand’s physical limitations have nothing to do with his de-
sire to recruit a medical expert and by themselves do not jus-
tify recruitment of another pro bono counsel.” Id. at 3. Instead,
the court promised to “grant Wand the time and leniency he
needs to explain himself and present his case in a fair way and
… instruct the jurors about the nature of Wand’s limitations,
as well as explain both at voir dire and during trial that these
limitations must not interfere with their consideration of the
evidence.” Id. at 3. The court reasoned from its “prior interac-
tions” with Wand that he had thus far “litigated this case ag-
gressively and demonstrated a clear understanding of the ap-
plicable legal standards and this court‘s procedures.” Id. at 3.
Consequently, it considered him “more than capable of rep-
resenting himself” with the benefit of the court’s guidance. Id.
at 3. 4
IV. Wand’s Performance at Trial
After his motion to recruit trial counsel was denied, Wand
prepared for trial with help from other inmates. He reached
out to 21 doctors in an effort to retain a medical expert. But
only one even responded, and none were willing to offer their
services. Wand also struggled to contact lay witnesses and to
4 The district judge at that point had seen Wand in person only once,
but Wand had appeared before the magistrate judge numerous times. We
have no reason to doubt that the district and magistrate judges communi-
cated about the case.
No. 23-2204 13
prepare them for trial. He was repeatedly unable to comply
with procedural requirements for obtaining subpoenas and
writs of habeas corpus ad testificandum.
The three-day trial began on the morning of May 23, 2022.
Wand’s stutter interfered with his reading of his opening
statement to such an extent that the district judge stopped him
and offered to read the remainder of it for him. Wand ac-
cepted. In substance, the opening statement was clear, con-
cise, and focused on the issues. Some of Wand’s witnesses (in-
mates appearing by video) were unprepared. They took the
stand unaware of the subject matter of the trial. All, however,
remembered Wand’s illness and his efforts to obtain medical
care.
At other times, Wand was unable to follow the rules of ev-
idence. He did not understand the need for an immediate ob-
jection if he thought defense evidence was not admissible.
Wand waited to raise one objection until the court called for a
side bar—at which point he was told that he had missed his
opportunity to object. He also struggled with the rules for ad-
mitting trial exhibits, and the judge explained to him, in front
of the jury, what he was and was not allowed to do with ex-
hibits. His examination of witnesses also drew a number of
interventions by the court. During Wand’s first direct exami-
nation, for example, the judge interrupted nine times to clar-
ify what Wand had said or to pursue a more helpful line of
questioning. The same thing happened during Wand’s exam-
ination of Nurse Kramer. The judge intervened fourteen times
to ask a question or to clarify Wand’s comments or the testi-
mony. The judge intervened in similar ways with defense
counsel, though not as often, to clarify testimony for the jury
14 No. 23-2204
and to guide counsel toward proper use of exhibits and at-
tempts to impeach.
After two days of evidence, the jury deliberated for ap-
proximately two and a half hours. It returned a verdict for
Kramer on both counts, finding that Kramer did not violate
Wand’s Eighth Amendment rights and that she was not neg-
ligent in caring for him.
Still acting without a lawyer, Wand appealed, raising over
thirty distinct issues with the district court proceedings. We
screened the appeal and affirmed the district court’s disposi-
tive rulings on all claims except his claim against Kramer.
Wand v. Kramer, No. 22-1989, 2023 WL 4045242 (7th Cir. June
16, 2023). We requested additional briefing and oral argument
on (1) whether the district court abused its discretion by deny-
ing Wand’s final motion to recruit counsel and (2) whether
that denial caused reversible prejudice to Wand. We recruited
appellate counsel for those purposes, and we address those
issues in turn. 5
V. Analysis
A. Standard for Recruiting Counsel
As a rule, lawsuits work better when the parties are repre-
sented by lawyers. But in most civil cases where a prisoner
claims he has been denied health care or received inadequate
care, the prisoner is indigent and unable to find a lawyer will-
ing to take his case. The prisoner-plaintiff has no statutory or
constitutional right to a lawyer in such a civil case, and a court
5 We thank attorneys Michael Heckmann, Alex Potapov, and Lauren
Shelepak and the law firm of Jones Day for their generous and able assis-
tance to their client and to the court.
No. 23-2204 15
has no power to compel a lawyer to represent the plaintiff. See
Pruitt, 503 F.3d at 653, citing Mallard v. United States District
Court, 490 U.S. 296, 310 (1989). Federal law provides, though,
that the court “may” try to recruit counsel for the prisoner-
plaintiff. 28 U.S.C. § 1915(e)(1).
“[T]he language of § 1915(e)(1) is entirely permissive; it
says the court ‘may’ request an attorney to represent a person
unable to afford counsel.” Pruitt, 503 F.3d at 654. The statute’s
“language suggests no congressional preference for recruit-
ment of counsel in any particular circumstance or category of
case. Instead, the decision whether to recruit pro bono counsel
is left to the district court’s discretion.” Id., citing Johnson v.
Doughty, 433 F.3d 1001, 1006 (7th Cir. 2006); Farmer v. Haas,
990 F.2d 319, 323 (7th Cir. 1993).
In exercising its discretion under section 1915(e)(1), a dis-
trict court should first ask whether the plaintiff has made rea-
sonable efforts on his own to find a lawyer. If those efforts are
not successful, and they usually are not, district courts should
ask, “given the difficulty of the case, does the plaintiff appear
competent to litigate it himself?” Pruitt, 503 F.3d at 654, citing
Farmer, 990 F.2d at 321–22. This second question focuses on
both the nature of the case and the plaintiff’s abilities and lim-
itations.
Few if any prisoner-plaintiffs can present their cases to a
jury as effectively as a lawyer. Rarer still is the indigent pris-
oner-plaintiff who can, without a lawyer, locate and engage a
medical expert to testify that the care he received violated an
applicable standard of care. Yet in many prison health-care
cases, a plaintiff will need testimony from a medical expert to
prevail. Thus, virtually any indigent prisoner challenging his
medical care can seem, at least superficially, to satisfy the two
16 No. 23-2204
steps of the Pruitt analysis so that it would seem to be an abuse
of discretion not to try to recruit counsel. We have made clear,
however, that there is no categorical rule requiring recruit-
ment of counsel in health-care cases. 503 F.3d at 656 (“we have
resisted laying down categorical rules regarding recruitment
of counsel in particular types of cases”); accord, James v. Eli,
889 F.3d 320, 328 (7th Cir. 2018) (no one factor is necessary or
conclusive). We have also made clear that a district court may
evaluate the likely merits of a case when deciding whether
some of the finite resource of volunteer lawyer time should be
devoted to the particular case. E.g., Watts v. Kidman, 42 F.4th
755, 763–66 (7th Cir. 2022); McCaa v. Hamilton (“McCaa II”),
959 F.3d 842, 845 (7th Cir. 2020); Pruitt, 503 F.3d at 663 (Rov-
ner, J., concurring).
These discretionary and case-specific decisions are often
difficult, but they are still subject to review for abuse of that
discretion. In the rare case where we find an abuse of discre-
tion, we will still reverse only if the plaintiff was prejudiced
by the error. To show prejudice, a plaintiff does not need to
show he probably would have won with a lawyer, but he
must show “a reasonable likelihood that the presence of counsel
would have made a difference in the outcome of litigation.”
Pruitt, 503 F.3d at 659; accord, e.g., McCaa v. Hamilton (“McCaa
I”), 893 F.3d 1027, 1034 (7th Cir. 2018); Henderson v. Ghosh, 755
F.3d 559, 566 (7th Cir. 2014). We reject claims of prejudice
“when it is clear that counsel could have done nothing to sal-
vage the plaintiff’s case.” Eagan v. Dempsey, 987 F.3d 667, 687
(7th Cir. 2021).
To show an abuse of discretion, a party must show “(1) the
record contains no evidence upon which the court could have
rationally based its decision; (2) the decision is based on an
No. 23-2204 17
erroneous conclusion of law; (3) the decision is based on
clearly erroneous factual findings; or (4) the decision clearly
appears arbitrary.” Pruitt, 503 F.3d at 658, quoting Musser v.
Gentiva Health Services, 356 F.3d 751, 755 (7th Cir. 2004). “A
trial court can also abuse its discretion ‘when it overlooks es-
sential evidence or fails to consider relevant factors.’” James,
889 F.3d at 328, quoting Jardien v. Winston Network, Inc., 888
F.2d 1151, 1159 (7th Cir. 1989).
Wand’s efforts to obtain counsel himself are not disputed
here, so we focus on the district court’s assessment of Wand’s
ability to present his case at trial. Although the inquiry into
the plaintiff’s competence and the difficulty of the case is nec-
essarily specific to the individual and the circumstances, we
have identified the factors that are typically most relevant:
There are no fixed requirements for determin-
ing a plaintiff’s competence to litigate his own
case; the judge will normally take into consider-
ation the plaintiff’s literacy, communication
skills, educational level, and litigation experi-
ence. To the extent there is any evidence in the
record bearing on the plaintiff’s intellectual ca-
pacity and psychological history, this, too,
would be relevant. To inform the decision, the
judge should review any information submitted
in support of the request for counsel, as well as
the pleadings, communications from, and any
contact with the plaintiff. We recognize that the
volume of pro se prisoner cases is great, and in
some cases—perhaps many cases—the record
may be sparse. The inquiry into the plaintiff’s
capacity to handle his own case is a practical
18 No. 23-2204
one, made in light of whatever relevant evi-
dence is available on the question.
Likewise, there are no hard and fast rules for
evaluating the factual and legal difficulty of the
plaintiff’s claims. We have previously observed
that some cases—those involving complex med-
ical evidence, for example—are typically more
difficult for pro se plaintiffs. See Zarnes v.
Rhodes, 64 F.3d 285, 289 n.2 (7th Cir. 1995). But
because the decision belongs to the district
court, we have resisted laying down categorical
rules regarding recruitment of counsel in partic-
ular types of cases. Id. at 288–89 (refusing to rec-
ognize a rule of “automatic appointment of
counsel whenever a litigant alleges a violation
of due process”). There are no presumptions for
or against recruitment of counsel, whether
based on the nature of the case or the degree of
plaintiff competence. The inquiry into plaintiff
competence and case difficulty is particularized
to the person and case before the court. It is un-
dertaken with due regard for the nature of the
request at hand; before a judge will invoke his
discretionary authority to press a lawyer into
service on an indigent plaintiff's case pro bono,
he first rules out the possibility that the plaintiff
is competent to litigate it himself.
Pruitt, 503 F.3d at 655–56 (footnote omitted).
Apropos of this case, our cases recognize that the medical
nature of a case and a plaintiff’s physical impediments are fac-
tors that certainly weigh in favor of trying to recruit counsel,
No. 23-2204 19
especially for a jury trial. See Pennewell v. Parish, 923 F.3d 486,
491–92 (7th Cir. 2019) (reversing denial of counsel); James, 889
F.3d at 329–31 (same); Dewitt v. Corizon, Inc., 760 F.3d 654, 658,
660 (7th Cir. 2014) (same); Henderson, 755 F.3d at 566, 568
(same).
The district court “can only make a determination based
on the record as it exists when the motion is brought, and our
review is limited to the record at the time the decision was
made .…” Pruitt, 503 F.3d at 656. “Although it is tempting to
consider the evidence postdating the court’s ruling—espe-
cially where (as here) the pro se plaintiff’s trial performance
is particularly incompetent—this evidence [is] … improper
on abuse-of-discretion review.” Id. at 659. “If the judgment
was sensible when made, the fact that after the trial it is ap-
parent that the plaintiff was not competent to try the case after
all will not establish error.” Farmer, 990 F.2d at 322, citing
McCarthy v. Weinberg, 753 F.2d 836, 838 (10th Cir. 1985). “As
with any discretionary determination, the question on appel-
late review is not whether we would have recruited a volun-
teer lawyer in the circumstances, but whether the district
court applied the correct legal standard and reached a reason-
able decision based on facts supported by the record.” Pruitt,
503 F.3d at 658. In the next section, we apply the standard
from Pruitt to the district court’s denial of Wand’s final motion
to recruit counsel.
B. The Denial of Plaintiff’s Final Motion to Recruit Counsel
By the time Wand was approaching trial before a jury, his
final motion presented the district court with a difficult prob-
lem. Wand faced all the usual challenges of an indigent, pro
se prisoner with limited (eleventh-grade) education and no
prior litigation or trial experience. His challenges would be
20 No. 23-2204
enhanced by the nature of the case against Nurse Kramer,
where the focus would be whether she responded properly to
his symptoms on February 13, and where expert testimony
would be either helpful (on one theory) or indispensable (on
a second theory). Further, Wand’s final motion told the judge
for the first time in writing that he was legally blind and had
a severe stutter. Both conditions would be additional obsta-
cles at trial.
Those factors all weighed in favor of trying to recruit an-
other lawyer for Wand, as the court’s order recognized. But
other factors weighed against trying to recruit another lawyer,
beyond the scarcity of willing lawyers. The court had previ-
ously recruited an experienced lawyer for Wand. After an at-
tempt to settle, that lawyer had withdrawn. Like the district
court, we are grateful for that attorney’s time and effort. Read-
ing between the lines, though, we can infer that he was not
willing to commit to represent Wand through trial. The dis-
trict court’s order saying it would try to recruit counsel had
not said that the appointment would be limited to mediation.
The judge, we are sure, would have preferred to have counsel
in the case for all purposes, especially for trial. The more lim-
ited appointment would have been what the attorney was
willing to take on. The judge left open the possibility that if
the case did not settle, the lawyer might decide the case was
strong enough that he should take on the trial and possible
recruitment of an expert as well. But that did not work out.
Moreover, any further efforts to recruit a new lawyer would
have faced a new obstacle. Any new candidate would have
wanted to know from the first attorney why he had chosen
not to pursue the case further. If Wand had such a good case,
why had the first attorney withdrawn?
No. 23-2204 21
So trying to recruit another lawyer looked problematic,
and the judge considered what he could do without another
lawyer. Recognizing Wand’s vision impairment and stutter,
the judge wrote that he would “grant Wand the time and le-
niency he needs to explain himself and present his case in a
fair way” and would “instruct the jurors about the nature of
Wand’s limitations, as well as explain both at voir dire and
during trial that these limitations must not interfere with their
consideration of the evidence.” Dkt. 243 at 3. That is indeed
what happened. The district judge was quite active during
trial, interrupting examinations by both sides to clarify the ev-
idence and to keep the evidence focused on what mattered.
We have no doubt that these accommodations were less than
ideal, certainly as compared to having a veteran lawyer han-
dle the trial, but they were not insignificant.
Having Wand question Nurse Kramer on the relevant
standard of care was also not an ideal solution, as the judge
noted. But Nurse Kramer acknowledged that if the facts were
as Wand had claimed before trial—if he told her on February
13 his severe pain had localized in the lower right quadrant of
his abdomen—then she should have responded differently.
Given that common ground, the critical issue for Wand’s
claim against Kramer—on both Eighth Amendment and neg-
ligence theories—was the factual issue of what he told her and
what she observed about his pain on February 13. That factual
dispute did not necessarily require expert testimony to re-
solve.
In addition, having a plaintiff rely on a defendant medical
provider to establish the standard of care is “not a novel con-
cept.” Johnson, 433 F.3d at 1008 n.6 (affirming denial of re-
cruited counsel in medical deliberate indifference case).
22 No. 23-2204
Wisconsin law allows this method to establish the standard of
care in medical malpractice cases. Carney-Hayes v. Northwest
Wisc. Home Care, Inc., 2005 WI 118, ¶¶ 36–39, 284 Wis. 2d 56,
81–82, 699 N.W.2d 524, 537 (2005), quoting Shurpit v. Brah, 30
Wis. 2d 388, 397, 399, 141 N.W.2d 266 (1966).
One might question aspects of the district court’s ap-
proach to this difficult recruitment of counsel issue—includ-
ing whether its written order sufficiently addressed all rele-
vant factors, and in particular Wand’s reliance before trial on
help from other inmates who would not be available to help
during trial. But we must assess the court’s exercise of discre-
tion in light of the practical alternatives actually available. The
options were limited, and none was optimal. In the end,
though, this appeal can be resolved without deciding whether
the district judge abused his discretion in declining to make a
further attempt to recruit counsel for plaintiff—a close ques-
tion, to be sure. The decisive issue is whether Wand was prej-
udiced by that decision. He was not.
C. Prejudice
Even if we assumed the district court abused its discretion
in denying Wand’s final motion for recruitment of counsel, we
would reverse only if the plaintiff was prejudiced by the error.
See, e.g., McCaa I, 893 F.3d at 1033–34. We find prejudice if
“counsel could have strengthened the preparation of the case
in a manner reasonably likely to alter the outcome,” Pruitt, 503
F.3d at 660, but as noted above, we reject claims of prejudice
“when it is clear that counsel could have done nothing to sal-
vage the plaintiff’s case.” Eagan, 987 F.3d at 687.
The question of prejudice in a recruitment-of-counsel case
does not ask merely whether a recruited lawyer would have
No. 23-2204 23
done a better job of presenting a plaintiff’s case to the jury. We
assume the answer to that question is always yes. Instead, the
question is whether recruited counsel would have been rea-
sonably likely to produce a better outcome for the prisoner-
plaintiff. See Jackson v. Kotter, 541 F.3d 688, 701 (7th Cir. 2008)
(“speculating about how counsel might have done a better job
prosecuting the case is neither necessary nor appropriate”
(quoting Johnson v. Doughty, 433 F.3d at 1008)). We consider
both the substance and the process of the trial of Wand’s de-
liberate indifference and negligence claims against Nurse
Kramer.6
1. Trial Evidence
The decisive problem for plaintiff is the inconsistency be-
tween his pretrial statements and his trial testimony about
what he told Nurse Kramer about the location and nature of
his abdominal pain in their first encounter on February 13. As
noted, he saw her for the second time at about 5:45 pm on
February 14. By then he was complaining of continuing severe
abdominal pain, his vital signs had deteriorated from the day
before, and most important, he was complaining of severe
6 The “reasonable likelihood” standard for prejudice echoes the “rea-
sonable probability” standard for claims of ineffective assistance of coun-
sel in criminal cases. A convicted defendant need not show it is more likely
than not that the outcome would have been different. He must show in-
stead a “reasonable probability” of a better outcome, which is “a probabil-
ity sufficient to undermine confidence in the outcome,” meaning a “sub-
stantial” likelihood of a different result, not just a “conceivable” possibil-
ity. Harrington v. Richter, 562 U.S. 86, 104, 112 (2011), quoting Strickland v.
Washington, 466 U.S. 668, 693–94 (1984). In Harrington, the Supreme Court
added that the difference between the Strickland prejudice standard and a
more-probable-than-not standard is “slight and matters ‘only in the rarest
case.’” Id. at 112, quoting Strickland, 466 U.S. at 697.
24 No. 23-2204
pain localized in the lower right quadrant of his abdomen, a
clear symptom associated with appendicitis. Within minutes,
he was on his way to the local hospital where he had emer-
gency surgery to remove his burst appendix. Wand has no
claim under the Eighth Amendment or state negligence law
concerning Kramer’s treatment of him on February 14.
So we focus on February 13. The defense evidence from
Kramer was that Wand presented with complaints of vomit-
ing (eleven times since 11:30 the night before), nausea, and
stomach pain that he rated ten on a scale of one to ten. Kramer
checked Wand’s vital signs. His temperature, pulse, respira-
tion, and blood pressure were all normal. He was holding his
stomach in pain. She examined his abdomen, which was soft
rather than distended, and she heard bowel sounds in all four
quadrants of his abdomen. Wand seemed dehydrated from
vomiting, and Kramer concluded he probably was suffering
from gastroenteritis. She ordered ice chips (not ordinarily al-
lowed to prisoners) so that he could take in some water, as
well as acetaminophen for pain, Pepto-Bismol to settle his
stomach, a clear liquid diet for two days, and no work or rec-
reation for two days. She scheduled a follow-up visit for two
days later and told him to contact the health unit if his symp-
toms worsened. If that evidence is credited, there is no basis
for finding either deliberate indifference or negligence on the
part of Nurse Kramer.
Plaintiff Wand’s version of the February 13 examination
and treatment has been inconsistent on one key fact. In his
verified complaint and in discovery, he said that he com-
plained to Nurse Kramer on February 13 of severe pain local-
ized in the lower right quadrant of his abdomen. That evi-
dence was critical for the district court’s decision to deny
No. 23-2204 25
summary judgment on his claims against Nurse Kramer. See
Wand, 2021 WL 311285, at *6–7.
At trial, however, Wand’s story changed. He testified—as
Nurse Kramer also testified—that he did not complain of
lower right quadrant pain during that February 13 examina-
tion. The subject was addressed several times. His trial an-
swers were clear and consistent. We see no signs of confusion
or ambiguity in the transcript. In his direct testimony, pre-
sented in narrative form, Wand did not claim that he told Kra-
mer about lower right quadrant pain on February 13. Perhaps
that omission might be explained away as the effect of nerves
during trial. But defense counsel focused on the question in
cross-examination:
Q You never told Ms. Kramer that you had
pain on your lower right side on Tuesday
[February 13]; correct?
A Right.
Q Because the pain on Tuesday was in your
stomach; correct?
A Yes.
Q But the next day on Wednesday, February
14th, your pain moved to the right side?
A Yes.
Dkt. 457 at 38–39.
26 No. 23-2204
Defense counsel then turned to February 14:
Q And you recall that Nurse Kramer noted the
onset of pain around 3:30 to 4 o’clock that
day; correct?
A Yes.
Q Okay. And that’s when you began experi-
encing a sharp pain on your right side; cor-
rect?
A Yes.
Id. at 42. There followed a confusing and ultimately immate-
rial exchange about when plaintiff first thought he had appen-
dicitis and when he first told Kramer he thought it was ap-
pendicitis. 7
The questioning then returned to the pain:
Q And you thought it was appendicitis be-
cause the pain was on your right side on the
14th; correct?
A Yes.
Id. at 46. When plaintiff had an opportunity to offer what was
in effect redirect testimony, he made no effort to correct his
answers about his pain having moved to the lower right quad-
rant on February 14. At no later time in the trial did he argue
7 In those pages of the transcript, the judge stepped in to steer the trial
toward proper questions and to prevent the defense attorney from trying
to impeach Wand improperly and from trying to argue with him. Dkt. 457
at 43–46.
No. 23-2204 27
anything different or indicate his testimony had been mis-
taken on this critical point.
2. Effects of Plaintiff’s Trial Testimony
That change in Wand’s story proved to be pivotal. At the
close of evidence, the defense moved for judgment as a matter
of law. The judge commented on the difference between the
summary judgment evidence and the trial evidence, but he
decided prudently to go ahead and have the jury deliberate.
The judge explained to Wand: “It seems pretty clear now that
you did not report lower right-quadrant pain until the 14th
and that when you did, Nurse Kramer referred you to the hos-
pital.” Plaintiff did not indicate any disagreement or confu-
sion on that point.8
Before trial, Wand would have had two potential paths to
show liability under both the Eighth Amendment and state
negligence law. One path was to show that he complained to
Nurse Kramer on February 13 of appendicitis symptoms—es-
pecially severe pain localized in his lower right quadrant.
That theory probably would not have required any expert tes-
timony. From the testimony of both Kramer and her
8 During oral argument on appeal, counsel for Wand indicated that
the judge’s decision to submit the case to the jury rather than to grant judg-
ment as a matter of law under Federal Rule of Civil Procedure 50(a)
showed the substantial merit of the case. In view of both Wand’s testi-
mony and the judge’s comments about why he was sending the case to
the jury, that action does not persuade us the case had merit. The judge
gave every indication that plaintiff’s own trial testimony meant his claim
against Nurse Kramer could not succeed. Once the time and resources
have been committed to a jury trial, however, it is often more prudent to
allow the jury to deliberate rather than risk a need for a new trial by pre-
maturely resolving the case as a matter of law.
28 No. 23-2204
supervisor Waterman, the jury would have understood that
localized lower right quadrant pain would have been a clear
symptom of appendicitis calling for an emergency response,
not ice chips, Pepto-Bismol, and acetaminophen. If Wand had
testified that he reported such pain on February 13, his claim
against Nurse Kramer would have presented a fairly straight-
forward credibility contest, as the district judge had expected
in denying summary judgment for Kramer. But Wand’s own
trial testimony effectively blocked that path.
The second path might have been for Wand to show that
his symptoms on February 13—without the lower right quad-
rant pain—called for a much more aggressive response from
Nurse Kramer. Possible responses might have included send-
ing plaintiff immediately to the hospital or at least contacting
a supervising physician to see if a more aggressive response
was needed. All agree that showing either deliberate indiffer-
ence or negligence under such facts would have required
some expert testimony about the standard of care and evi-
dence that Nurse Kramer breached the standard of care.
On appeal, Wand has tried to show he would have had a
reasonable prospect of prevailing on one or both paths if the
district court had recruited counsel for him. We are not con-
vinced.
On the first path—that he told Nurse Kramer of lower
right quadrant pain on February 13—Wand’s appellate coun-
sel argue that a lawyer could have had him better prepared
for cross-examination or could have had him testify about his
prior statements in which he swore that he did tell Nurse Kra-
mer of lower right quadrant pain on February 13. We do not
see any reasonable likelihood of a different result on this path.
As noted above, Wand’s trial testimony on this critical fact
No. 23-2204 29
was clear and consistent. There is no sign of confusion or an
unreliable memory. It also is not obvious to us how his prior
inconsistent statements would even have been admissible if
Wand himself had offered them. And if they had been offered
with the help of counsel, he would have been impeaching
himself on the critical issue in what would have been for him
at best a credibility contest.
Plaintiff’s trial testimony probably surprised both the
judge and defense counsel, but it was what it was. It was so
clear on the critical point that we do not see a reasonable like-
lihood that he could have credibly rehabilitated his older
story even if he had been able to put his prior statements be-
fore the jury. Nor do we think we can find prejudice on the
theory that plaintiff’s sworn trial testimony was just wrong.
We are making that pragmatic judgment in light of the trial
evidence and our experience as judges and lawyers. When a
party contradicts himself on such a critical factual point, the
version less favorable to his case is, other things being equal,
more likely to be believed by a fact-finder. And this was no
minor inconsistency. It was a direct contradiction on the cen-
tral fact in the case. To borrow from tort law and traffic acci-
dents, it was as if Wand initially said that he had a green traffic
light but testified at trial that his light was red.
The second path—possible expert testimony that Nurse
Kramer breached the standard of care, whether deliberately,
recklessly, or negligently—is no more promising. Wand ar-
gues that recruited counsel would have been able to locate a
medical expert (physician or nurse or nurse practitioner) who
would have been able to testify credibly that Nurse Kramer
breached a professional standard of care even without com-
plaints of lower right quadrant pain. In theory, such a
30 No. 23-2204
hypothetical expert might have been able to support both
Wand’s Eighth Amendment and medical malpractice theo-
ries. Both theories would require proof of at least a breach of
a professional standard of care. See Carney-Hayes, 284 Wis. 2d
56, ¶37 (Wisconsin medical malpractice law); Brown v. Os-
mundson, 38 F.4th 545, 551–52 (7th Cir. 2022) (deliberate indif-
ference in appendicitis case). 9
We have no reason to think that such a hypothetical expert
could have been found. Nothing in the trial record suggests
that Nurse Kramer breached any standard of care. The only
indications of a standard of care in the trial record come from
Nurse Kramer’s own testimony and from the Nursing Proto-
cols of the Wisconsin Department of Corrections, which she
was supposed to follow. Those were admitted into evidence
through supervisor Waterman, who testified that Nurse Kra-
mer’s actions on February 13 were consistent with those pro-
tocols, taking as a given her version or plaintiff’s trial version
of their encounter that day.
In this analysis of prejudice, we are not limited to only the
record of the actual trial. We are trying to compare the actual
trial to a hypothetical trial with recruited counsel. But is there
9 To be clear, deliberate indifference under the Eighth Amendment
demands more than medical malpractice. It may be inferred “based upon
a medical professional’s erroneous treatment decision only when the med-
ical professional’s decision is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate that the
person responsible did not base the decision on such a judgment.” Estate
of Cole v. Fromm, 94 F.3d 254, 261–62 (7th Cir. 1996). The most important
difference between the theories is usually the defendant’s state of mind.
See Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016) (en banc) (distinguish-
ing between theories).
No. 23-2204 31
any other reason to believe that Nurse Kramer’s actions
breached a standard of professional care on February 13? No
one has identified any standard of care in public sources that
would support such a conclusion. Counsel for Wand sug-
gested that medical experts in other cases testified that the
standard of care for symptoms like Wand’s called for a differ-
ent response from a nurse.
With one exception that we discuss next, we have not been
directed to any experts in other cases who testified in ways
that offered any hope for Wand’s theory in this case. The prin-
cipal relevant teaching in our own case law is that appendici-
tis can be hard to diagnose in its early stages because its symp-
toms are consistent with a number of other disorders. See
Brown, 38 F.4th at 551–52 (affirming summary judgment for
defendants; “appendicitis is difficult to diagnose;” defendant
doctor monitored plaintiff for three days, and even then an
emergency room doctor noted that symptoms were general
rather than specific to appendicitis); Sherrod v. Lingle, 223 F.3d
605, 611 (7th Cir. 2000) (reversing summary judgment for de-
fendants; whether plaintiff’s symptoms over fourteen days,
which defendants recognized could be appendicitis, should
have prompted more aggressive response was disputed fac-
tual issue).
The one possible exception that Wand identifies is Rivera
v. Kettle Moraine Correctional Institution, No. 14-C-6, 2016 WL
2766642 (E.D. Wis. May 12, 2016), a case cited by the district
court here when denying summary judgment for Nurse Kra-
mer. The case is factually close to this case. It offers Wand’s
best argument for prejudice, but close attention shows two de-
cisive differences between that case and this one.
32 No. 23-2204
Rivera was a prisoner who complained to prison nurses of
severe abdominal pain. Not quite 48 hours later, he was sent
to a hospital for emergency surgery for a ruptured appendix.
Id. at *1–2. The district court granted plaintiff Rivera’s motion
for recruitment of counsel and later denied defendants’ mo-
tion for summary judgment. The evidence showed that when
Rivera first saw a nurse complaining of severe abdominal
pain, “[t]hroughout the evaluation, Plaintiff was hunched and
grabbing the right side of his abdomen.” That evening, he
again saw a nurse, and he was “bent over at the waist grasp-
ing the right side of his abdomen.” The next morning, he saw
another nurse. He was again “bent over at the waist grasping
the right side of his abdomen.” He asked several more times
that day to see a nurse or doctor, but prison medical staff re-
fused his requests as relayed by correctional officers. That
same afternoon, less than 48 hours after his first examination,
he was found unconscious on the floor of his cell. He was then
sent immediately to a hospital where emergency surgery was
performed the next day.
Recruited counsel for Rivera located and offered the testi-
mony of a medical expert, Dr. Holmburg, who opined that the
nurse who saw Rivera the morning before his collapse and
emergency trip to the hospital “should have sent Plaintiff to
the emergency room for urgent medical care and that the fail-
ure to do so was a reckless indifference to Plaintiff’s serious
medical need.” 2016 WL 2766642, at *4. The result, according
to the expert, was prolonged suffering and likely the ruptur-
ing of the plaintiff’s appendix before surgery could be per-
formed.
Given the substantial similarities to this case, appellate
counsel for Wand argue that Rivera indicates a reasonable
No. 23-2204 33
likelihood that recruited counsel for Wand could have simi-
larly identified a medical expert to offer comparable testi-
mony here. Two critical differences between the cases under-
mine that theory.
First, the plaintiff in Rivera was HIV-positive, and the de-
fendant nurses knew it. The Abdominal Pain Nursing Proto-
col for the Department of Corrections instructed “that an in-
mate who is suffering from severe abdominal pain and also
has an HIV diagnosis should be referred to a doctor on an ur-
gent basis.” 2016 WL 2766642, at *2. There is no indication of
any similar complication in Wand’s case, nor is there any evi-
dence that Nurse Kramer’s actions departed from department
nursing protocols.
Second, the evidence in Rivera showed that in each en-
counter with the nurses, the plaintiff was clutching the right
side of his abdomen, making the risk of emergency appendi-
citis obvious. See also Brown, 38 F.4th at 551 (affirming sum-
mary judgment for defendants where plaintiff had not shown
classic symptoms of appendicitis: fever, chills and “ab-
dominal guarding”).
We are not surprised that counsel for Rivera found an ex-
pert who supported his case, but given those differences, we
cannot extrapolate to find that a second recruited lawyer
would have had a reasonable prospect of doing the same for
Wand. According to his own trial testimony, he reported pain
on February 13 in his stomach area, above the navel. He did
not have localized pain around his appendix, nor did he have
a fever or chills or other conditions comparable to Rivera’s
HIV. He also did not have evidence that Nurse Kramer
breached any nursing protocol.
34 No. 23-2204
The natural rejoinder to this analysis is that we simply can-
not know what might have happened if counsel had been re-
cruited for Wand and, perhaps with financial assistance from
the court, tried to locate an expert willing to support his claim.
That’s true, but this theory is just speculation and would
prove too much. Without a more discriminating approach, if
the sheer speculative possibility of locating a supportive ex-
pert were enough to find prejudice, we would come very close
to holding that any pro se prisoner who suffered a serious ad-
verse health outcome would be entitled to recruited counsel
and enough cash to try to hire an expert.
We have repeatedly rejected such a principle, and it would
be a serious mistake to adopt it, particularly given the volume
of such prison health-care cases and the wide range of the
merits of such cases, from frivolous to deadly serious. In
short, Rivera does not convince us that a second recruited
counsel would have given Wand a reasonable likelihood of
prevailing against Nurse Kramer.10
A deeper look at the Rivera case also shines a useful light
on the choice to recruit counsel in a prisoner’s medical care
case, and in particular in a case claiming late diagnosis of
10 Perhaps another alternative might be court appointment of a neu-
tral expert. See Rowe v. Gibson, 798 F.3d 622, 631–32, 634 (7th Cir. 2015)
(encouraging district judges to recruit neutral experts in prison health-care
cases and suggesting—somewhat optimistically—that it seemed “unlikely
that a gastroenterologist would charge more than a nominal fee” to pro-
vide an opinion that seemed obvious to author of majority opinion). To
our knowledge, however, we have not held before that a district court was
required to recruit and appoint a neutral expert. Compensation of neutral
experts can also pose knotty problems, as Judge Conley explained in
Goodvine v. Ankarlo, No. 12-CV-134-WMC, 2013 WL 1192397, *2 (W.D. Wis.
Mar. 22, 2013).
No. 23-2204 35
appendicitis. At the outset of the Rivera case in 2014, the dis-
trict court wrote an opinion on that question. Rivera v. Kettle
Moraine Correctional Institute, No. 14-C-6, 2014 WL 2875897
(E.D. Wis. June 24, 2014). Judge Griesbach fully appreciated
the difficulties posed by the case, so he tried a novel approach.
He asked a lawyer known to specialize in personal injury
work, including medical malpractice, to evaluate the case as
if Rivera were not a prisoner “to determine whether it was the
kind of case in which the members of his firm would be will-
ing to invest the time and resources that would be required to
handle the case, realizing that actual attorney fees and costs
would be recoverable in the event the plaintiff prevailed.” Id.
at *2.
The firm’s medical malpractice team, comprised of both
attorneys and paralegals with nursing degrees, concluded
that the case did not warrant the kind of investment that
would be required to handle the case. The report to the court
included observations that seem to apply directly here:
Appendicitis can be difficult to diagnose in its
earlier stages. Initially, symptoms can be some-
what vague and include generalized aching ab-
dominal pain across the entire abdomen. This
pain will then progress to become more right
sided abdominal pain. Symptoms can also in-
clude nausea, vomiting, diarrhea, and lack of
appetite. In addition, patients will develop a fe-
ver. The challenge in diagnosis is that these
symptoms can also be attributed to a gastroin-
testinal infection and, as a result, appendicitis is
often misdiagnosed. In our opinion, it would be
very difficult to prove medical negligence for
36 No. 23-2204
the delay in the diagnosis of appendicitis. Al-
though Mr. Rivera was having significant ab-
dominal pain, that was not relieved with antac-
ids, and saw the RN several times over 2–3 days,
he was afebrile and his pain was initially gener-
alized. Once he stated he was having right sided
abdominal pain, he was transferred to the hos-
pital.
Id. at *2. 11
The firm also noted that potential damages would not be
sufficient to justify the cost required to prosecute the case. Ri-
vera would have needed surgery in any event, and he suf-
fered no long-term effects from the delay. Also, he lost no
wages and incurred no medical expenses. The firm later sup-
plemented its report regarding the prospect of obtaining ex-
pert testimony to support the case. The case would require
hundreds of hours of attorney and paralegal time, and the
cost of experts and out-of-pocket expenses more than ten
years ago “could easily exceed $100,000 through trial.” Id.
Judge Griesbach wrote in restrained prose that this evalu-
ation “raises substantial questions about the wisdom of the
court recruiting counsel,” and he raised further questions
about whether such efforts on behalf of one side in a case,
which would impose further expenses on the defendants,
would be consistent with the court’s duty of impartiality. Id.
In Rivera in 2014, however, Judge Griesbach read our decision
11 To be fair, that assessment did not refer to Rivera’s HIV status,
which later turned out to be critical for the expert’s opinion and for the
court in denying summary judgment. But this assessment fits Wand’s case
quite closely.
No. 23-2204 37
in Pruitt as preventing him from considering the merits and
substance of the case in deciding whether to recruit counsel,
which he contrasted with the precedents from other circuits.
Id. at *4–6. He concluded that this court would likely deem
denial of recruited counsel for Rivera to be an abuse of discre-
tion, so he reluctantly decided to recruit counsel but without
requiring counsel to retain experts at their own expense. Id. at
*8. 12
Our principal point for this case is that Rivera provides no
basis to conclude that recruiting another lawyer for Wand
would have been reasonably likely to lead to a supportive ex-
pert whose testimony would have altered the outcome at trial.
Our secondary point is that in assessing how best to marshal
the limited time and resources of generous volunteer counsel,
such practical assessments of likely costs and potential bene-
fits can offer relevant guidance for district courts.
3. Fairness of the Trial?
We close with some observations about the trial process
itself. Appellate counsel for Wand emphasize the difficulties
Wand had in presenting his case. He did not know the rules
of evidence. He had difficulty in questioning witnesses. He
often succumbed to the temptation to argue with witnesses or
to have discussions with them rather than question them. He
did not know how and when to object to the defense evidence.
12 Some years after that opinion in Rivera, we issued opinions making
clear that a district court may indeed consider the likely merits of the case
when deciding whether to recruit counsel. See Watts v. Kidman, 42 F.4th
755, 763–65 (7th Cir. 2022) (noting this approach is consistent with other
circuits); McCaa II, 959 F.3d at 845.
38 No. 23-2204
These were all problems common to many pro se parties (and
many attorneys inexperienced with federal trials).
We know in general terms that Wand had stuttering prob-
lems, but it is hard to gauge the severity. In opening state-
ments, Wand was reading from a text. His stuttering was bad
enough that the judge stepped in and offered to read his open-
ing statement to the jury. In content, the opening statement
was clear and concise. The night before closing arguments, the
judge told Wand he had noticed that his stutter worsened
when he was trying to read, and he suggested that Wand
speak from an outline in closing arguments. Wand seems to
have done so, with enough success that at least the judge did
not repeat the reading process from openings. And, to Wand’s
credit, the closing argument was focused and coherent.
Appellate counsel for Wand are highly critical of Judge
Conley’s efforts to accommodate Wand’s limitations during
trial, criticizing him for often interrupting the questioning of
witnesses with his own questions. A reading of the full trial
transcript presents in our view, however, a different picture.
First, the judge was not a passive observer of this trial. He
was working hard to enable both sides to present admissible
evidence to the jury with as much clarity as possible, and to
do so without wasting jurors’ time. That active role requires a
delicate balance between patience and efficiency, and in being
fair and appearing fair to both sides while taking steps that
help the pro se party without showing bias or favoritism. Yes,
the judge interrupted Wand’s questioning often to clarify the
testimony, to keep inadmissible testimony out, and to focus
on what mattered for the substance of Wand’s claims and Kra-
mer’s defense. But the judge took similar steps when defense
lawyers were questioning witnesses. See, e.g., Dkt. 449 at 56–
No. 23-2204 39
57; Dkt 448 at 89–91, 95–100; Dkt. 457 at 43–46, 68–69, 80–81.
Not as often as with Wand, of course, but commensurate with
the need. The judge’s active role in the trial does not persuade
us that Wand was prejudiced to the extent that we could find
that recruitment of another lawyer for him would have been
reasonably likely to lead to a different outcome in the trial.
The judgment of the district court is AFFIRMED.