Michael Davis v. Donald Moroney, et al

Filing

Filed opinion of the court by Judge Posner. The denial of Davis's motion for relief from final judgment is REVERSED and the case is REMANDED for further proceedings consistent with this opinion. Richard A. Posner, Circuit Judge; Michael S. Kanne, Circuit Judge, concurring, and David F. Hamilton, Circuit Judge. [6842793-1] [6842793] [16-2471]

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In the

United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-2471
MICHAEL DAVIS,
Plaintiff-Appellant,
v.
DONALD MORONEY,
Defendant-Appellee.
____________________
Appeal from the United States District Court
for the Central District of Illinois.
No. 1:13-cv-01462-SLD — Sara Darrow, Judge.

____________________
ARGUED APRIL 25, 2017 — DECIDED MAY 22, 2017
____________________
Before POSNER, KANNE, and HAMILTON, Circuit Judges.
POSNER, Circuit Judge. Michael Davis, an inmate at Illinois
Pontiac Correctional Center, sued a guard, Donald Moroney,
for allegedly using excessive force against him, but the district court dismissed the suit for failure to prosecute. Davis
now challenges the denial of a subsequent motion for relief
from judgment under Federal Rule of Civil Procedure 60(b).
He argues that exceptional circumstances warrant relief
from the judgment, principally because mental impairments

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prevented him from prosecuting the case without the aid of
counsel.
Davis filed this suit under 42 U.S.C. § 1983 in 2013
against guard Moroney along with the prison’s warden and
other prison officials responsible for the prison’s grievance
process. In his complaint Davis alleged that while speaking
with another inmate he accidentally bumped into Moroney,
apologized, but Moroney responded by hitting Davis in the
jaw, throat, and chest, twisting his arm behind his back,
slamming his head against a wall, and handcuffing him. Davis charges that the other defendants, in an effort to cover up
Moroney’s assault, conspired to deny him access to the prison’s grievance procedure by failing to process and return his
grievances.
Davis asked the district court to recruit counsel for him,
stating that he “had to obtain complete assistance” in order
to be able to prosecute his suit. He had tried to secure counsel on his own, he added, and referred to a letter from a law
firm corroborating his attempt to obtain representation; but
no letter was attached to his motion.
The district court screened Davis’s complaint, see
28 U.S.C. § 1915A, and allowed him to proceed on his excessive-force claim against Moroney. But the court dismissed
the conspiracy claim against the other defendants on the
ground that Davis had no federal constitutional right to a
grievance procedure and therefore could not “present a meritorious claim.” The court also denied Davis’s motion for
counsel, on the ground that he’d failed to demonstrate that
he’d made a reasonable attempt to obtain counsel.

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Discovery ensued, but Davis failed to respond to interrogatories propounded by Moroney concerning Davis’s attempts to exhaust his administrative remedies.
Two months later Davis repeated his request for recruitment of counsel, stating that he had a mental illness and was
unable to aid the inmate who was preparing his court filings.
Davis attached to his motion an affidavit from the assisting
inmate, Claude McGee, who asserted that “it is almost
common knowledge that Mr. Davis has a mental illness” and
that Davis’s “judgment is substantially impaired, along with
his perceptions of reality, all of which rendered it essentially
impractical to effectively communicate with Mr. Davis to
meet deadlines, [or to] fully and fairly participate in the discovery process.” Two months later the district court denied
Davis’s request for counsel on the ground that he’d failed to
demonstrate that he had tried to secure counsel on his own
and because his claim was “not unduly complex and relies
largely on information of his personal knowledge.”
The court allowed Davis 21 more days to respond to
Moroney’s interrogatories. On the twenty-first day Davis renewed his motion for recruitment of counsel, asserting that
the case was difficult for him because he reads at a 6th-grade
reading level, lacks communication skills, and has a “paranoid delusional disorder.” He also attached his “legal mail
card,” which cataloged his incoming and outgoing mail to a
number of law firms. And he asked the court to order the
prison to turn over his medical records. Moroney, having
still received no response to his interrogatories, filed another
motion to compel Davis to respond.
The district judge took no further action for nine months,
then issued a scheduling order stating that “there are no

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pending issues requiring discussion.” The order directed
Moroney to provide Davis with, among other things, Davis’s
“relevant medical records” and “relevant grievances and all
responses to those grievances.”
Without it appears responding to the court’s directive, a
month later Moroney filed a motion to dismiss Davis’s suit
under Fed. R. Civ. P. 41(b) for lack of prosecution because
Davis still had not answered the interrogatories. The district
judge responded with two orders: the first denied Davis’s
renewed motion for recruitment of counsel because his
“claim is not unduly complex and relies largely on information within his personal knowledge,” and instructed Davis to request his medical records through his institution—
whatever that means. The judge’s second order warned Davis that his case would be dismissed unless he filed answers
to Moroney’s interrogatories within 14 days. Twenty days
later Davis filed a motion to reconsider the denial of his motion for recruitment of counsel but did not respond to the
interrogatories. The district court then granted Moroney’s
motion to dismiss Davis’s suit, explaining that Davis had
failed to comply with the judge’s orders directing him to respond to the interrogatories. The judge denied Davis’s motion to reconsider the denial of his motion for recruitment of
counsel as moot.
Almost a month later Davis filed a “Motion to Reconsider/Reinstate Cause” and argued that the court had disregarded his “possible mental impairments” that prevented
him from effectively litigating his case. He also asked the
court to give him more time to find an attorney. The court
did not find Davis’s arguments “persuasive” and so denied
the motion. Nine days later Davis filed a Rule 59(e) motion

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to alter or amend the judgment, stating that he was “extremely slow mentally,” that he lacked the ability “to produce any form of effort to pursue this cause,” and that the
circumstances were exceptional because he had “insufficient
knowledge of any complexity of the case” and could not
represent himself. The motion also alleged that prison staff
had retaliated against the inmates who had prepared Davis’s
filings for him. The court denied this motion the next day as
untimely, pointing out that Davis had missed the 28-day
deadline for making a “genuine” motion under Fed. R. Civ.
P. 59(e).
Five months later Davis filed still another motion for recruitment of counsel (his fourth) based on his mental deficiencies. He stated that his I.Q. was under 73 and that he
could not understand Moroney’s filings. The court denied
this motion, presumably because the case had been dismissed, but noted that it was not clear whether Davis intended to request counsel to assist him with an appeal.
Two months later Davis moved for relief from judgment
under Fed. R. Civ. P. 60(b)(1) and (b)(6), again mentioning
his mental shortcomings. He stated that he has an I.Q. of only 66 and the “mind of a child,” is barely literate, and could
not meet the court’s deadlines without aid or supervision. In
light of these difficulties (as well as his inability to understand Moroney’s interrogatories), he added, the court should
have recruited counsel for him.
In May 2016 the district court denied his motion for relief
from the judgment, noting that Davis had not responded to
Moroney’s interrogatories despite two orders directing him
to do so, and adding that Moroney’s defense had been prejudiced by Davis’s failure to respond.

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The only issue in this appeal, as agreed by the parties,
concerns the denial of Davis’s Rule 60(b) motion. Assisted by
counsel that this court recruited, Davis argues that the district judge decided that motion incorrectly because she
didn’t account for his exceptional circumstances—namely
his mental impairments. He also contends that like the plaintiff in Donald v. Cook County Sheriff’s Department, 95 F.3d 548
(7th Cir. 1996), his difficulty in litigating this case has
stemmed from the district court’s handling of it—notably the
judge’s nine-month delay in responding both to Moroney’s
second motion to compel a response to his interrogatories
and to Davis’s renewed motion for recruitment of counsel.
The controlling issue is whether Davis has established a
basis for relief under Fed. R. Civ. P. 60(b), which so far as relates to this case allows a court to relieve a party from a final
judgment on grounds of “excusable neglect” (Rule 60(b)(1)),
or “any other reason that justifies relief” (Rule 60(b)(6)).
While relief under that rule has been described as “an extraordinary remedy … granted only in exceptional circumstances,” Bakery Machinery & Fabrication, Inc. v. Traditional
Baking, Inc., 570 F.3d 845, 848 (7th Cir. 2009), the circumstances of this case are extraordinary—notably Davis’s intellectual limitations.
Davis also argues that the district court did not properly
consider his impairments and lack of resources in its denials
of his motions for counsel, and also that the court erred by
not considering his motion to reconsider the entry of judgment as a motion under Rule 59(e). He contends that the district court did not evaluate that motion under the proper
standard and that as a result he (Davis) may not have understood that he should have filed an appeal. But as Moroney

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points out, this court lacks jurisdiction to consider the district court’s denial of this motion because Davis did not file a
timely notice of appeal.
Although Moroney and the district judge made points
that would be compelling in another setting, involving a different type of grievant, they are outweighed by the equities
in favor of Davis that stem from his severe intellectual limitations, coupled with his lack of legal assistance; and while
review of a district court’s denial of a Rule 60(b) motion is
deferential, if the judge is “very far off base … or omitted to
consider some important relevant factor,” the denial cannot
stand. Tolliver v. Northrop Co., 786 F.2d 316, 319 (7th Cir.
1986). Davis’s intellectual limitations, asserted in his and
McGee’s affidavits, are not contradicted by Moroney, who
did not dispute the assertions in the affidavits submitted by
Davis and McGee. Nor had the district judge been given any
reason to doubt that Davis was intellectually disabled.
Furthermore the judge attached far too much weight to
Davis’s failure to respond to Moroney’s interrogatories—for
they were little better than a ploy aimed at a person incapable of responding intelligently. The information sought included “the number of grievances you wrote related to the
issues in your complaint, … the date on which you wrote
each grievance[;] the date(s) of submission of each grievance
to your counselor; the date(s) of submission of each grievance
to the Grievance Officer; the date(s) of submission of each
grievance to the Administrative Review Board; whether you
submitted the grievance(s) to anyone else; the manner in
which you submitted the grievance(s) at each level; the
name of any person to whom you gave the grievance(s) at
each level of the process; the date(s) of response(s) at any

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level; the date(s) of final determination(s) by the Administrative Review Board; and whether you are in possession
of any grievance(s) or grievance response(s) related to this
lawsuit. If you are not, state why you are not.” Not only did
most of these questions exceed Davis’s capacity to answer
them, but almost all the information requested from Davis
resided in the files of the prison and were thus immediately
accessible by Moroney. While Davis was unlikely to have
retained the dates demanded by Moroney, copies of the
grievances he had submitted, or the names of most of the
persons to whom he had submitted his grievances, or to understand “each level of the process,” Moroney, as a member
of the prison’s staff and in cahoots with the other defendants, had access to everything Davis had filed with the prison
administration and so had no need to seek information from
Davis. The Prison Litigation Reform Act provides that “no
action shall be brought [under federal law] with respect to
prison conditions … by a prisoner … until such administrative remedies as are available are exhausted.” 42 U.S.C.
§ 1997e(a). Moroney was therefore entitled to argue as a defense that Davis had failed to exhaust his administrative
remedies—had failed to timely submit a grievance to the
prison’s Administrative Review Board. But in the particular
circumstances of this case the insistence on a response
amounted to cruel harassment of a mental defective.
To cast some additional light on whether Davis, given
his mental handicaps, could have been expected to understand most of the orders he received from the district judge
and Moroney, we conducted an experiment using the Flesch
Reading Ease Readability Formula. Downloadable free of
charge from the Internet (see, e.g., Readability Formulas,
“The Flesch Reading Ease Readability Formula,” www.read

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abilityformulas.com/flesch-reading-ease-readability-formula
.php, visited May 22, 2017), Flesch is a test used to estimate
the difficulty for given readers of understanding a given
text. The formula is simple: it measures the ratio of syllables
to words, and words to sentences, in the text; the higher
those ratios, the more difficult the text is to understand. Of
course other qualities of a text contribute to how difficult it
is to understand, but the Flesch formula is a helpful heuristic that correlates well with difficulty—for example, the average ratios of random samples of the Harvard Law Review
are higher than the average ratios of random samples of
Time magazine; the Harvard Law Review is more difficult to
read than Time. See Rudolf Flesch, How to Write Plain English
26 (1979). Having determined how difficult the text is, the
Flesch test translates that score into a prediction of what educational level a reader would have to have attained in order to be able to understand the text.
Applied to Moroney’s interrogatories, the Flesch test reveals that their comprehension requires a reading ability
consistent with having completed 8th, maybe 9th, grade in
school. The most optimistic assessment of Davis’s reading
ability is that he can read at a 6th-grade level—two or three
levels below the reading ability required for an understanding of the interrogatories.
Davis needs help—needs it bad—needs a lawyer desperately. He did not have a fair opportunity to prosecute his
case. As in Donald v. Cook County Sheriff’s Dept., 95 F.3d 548,
554 (1996), “the plaintiff’s difficulties are traceable in considerable part to the way the matter was handled by the district court.” The district judge, although purporting to apply
the standard for deciding whether to recruit pro bono coun-

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sel set forth in Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en
banc), overlooked our emphasis in that case on the need to
consider whether the particular plaintiff is competent to litigate his own claims, as by being able to “prepar[e] and respond[] to motions and other court filings” himself. Id. at
655. In combination, Davis’s severe intellectual handicaps,
his apparently diligent efforts to pursue his case despite
those handicaps, his potentially meritorious claim, and the
irregularities of the district court’s handling of the case,
amount to “extraordinary circumstances” justifying relief
under Rule 60(b)(6) of the Federal Rules of Civil Procedure
from the final judgment in this case. See Ramirez v. United
States, 799 F.3d 845, 851 (7th Cir. 2015); Donald v. Cook County Sheriff’s Dept., supra, 95 F.3d at 554. The denial of Davis’s
motion for relief from final judgment is therefore reversed
and the case remanded for further proceedings consistent
with this opinion.
REVERSED AND REMANDED.

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KANNE, Circuit Judge, concurring. I join in the majority’s
reversal of the district court’s decision denying Davis’s motion for relief from final judgment and the majority’s remand
for further proceedings. I write separately to briefly discuss
certain factors.
When reviewing a district court’s denial of an indigent
prisoner plaintiff’s motion to recruit counsel for him, we
make three inquiries: “(1) has the indigent plaintiff made
reasonable efforts to retain counsel or been effectively precluded from making such efforts before requesting appointment; (2) given the difficulty of the case, did the plaintiff appear to be competent to try it himself; and (3) if not,
would the presence of counsel have made a difference in the
outcome.” Pruitt v. Mote, 503 F.3d 647, 654 (7th Cir. 2007) (en
banc) (internal citations and quotations marks omitted).
Here, the district court erred at the mandatory first step
by not crediting Davis for following existing precedent in
attempting to obtain a lawyer to represent him. See Jackson v.
Cty. of McLean, 953 F.2d 1070, 1073 (7th Cir. 1992). In fact, the
defendant does not contest that Davis had contacted several
lawyers seeking representation in this litigation.
Moreover, the long extended give-and-take between the
district judge and the parties failed to get to the heart of the
matter: whether the district court should have tried to appoint counsel for Davis. The court could have addressed this
issue by appointing a magistrate judge to conduct a hearing
at the prison. The magistrate judge could have considered
both Davis’s efforts to obtain counsel and the difficulty Davis experienced in dealing with the case. In addition, but less
satisfactorily, the district judge could have held a hearing by
telephone to achieve the same end.

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With counsel, Davis likely would not have missed the
deadlines for written discovery. Thus, the outcome of the
case in the district court would have been different.
I agree that, in this case, the district court should have
tried to obtain counsel for Davis because of the totality of
extraordinary circumstances. However, the use of Davis’s
unverified (albeit undisputed) IQ score as a metric to determine his reading ability—and therefore, the need for legal
representation—is problematic. Davis first claimed that his
IQ score was under 73, and later that his IQ was only 66. Initially, as noted, the validity of Davis’s IQ is not supported
by any proper validation. Furthermore, his claimed 6thgrade reading level and lack of communication skills were
only unverified allegations.
In the general scheme of recruiting pro bono counsel, it
is extremely significant that the number of inmates in prison
with low IQs is substantial. See generally Brie Diamond, Robert G. Morris & J.C. Barnes, Individual and Group IQ Predict
Inmate Violence, 40:2 Intelligence 115 (2012) (“[T]he literature
suggests that IQ—at the individual and macro-level—is
negatively correlated with crime … .”).
If, therefore, an IQ score is routinely used to establish
reading ability and thus a need for counsel, it should be
based on valid testing. Indeed, the use of an IQ level will
certainly result in a much larger number of prisoner cases
being added to the dockets of district courts. Such an outcome would be contrary to the intent of Congress exhibited
by enacting the Prison Litigation Reform Act, 42 U.S.C.
§ 1997e. See Woodford v. Ngo, 548 U.S. 81, 84 (2006) (noting
that Congress enacted the Prison Litigation Reform Act to

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reduce the quantity of the ever-increasing number of prisoner lawsuits).
Nevertheless, given the totality of applicable extraordinary circumstances, and specifically, because the district
court did not credit Davis’s attempts to obtain legal representation, I agree that the final judgment must be reversed
and the case remanded.