Armin Wand, III v. Beckey Kramer (7th Cir. 2025)

Opinion

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.