Speculation Is Not Prejudice: Seventh Circuit Clarifies Prejudice Review and Practical Limits on Recruiting Counsel in Prisoner Medical-Care Trials

Case: Armin Wand, III v. Beckey Kramer

Court: United States Court of Appeals for the Seventh Circuit

Docket No.: 23-2204

Date: July 15, 2025

Panel: Circuit Judges Rovner, Hamilton, and Scudder; opinion by Judge Hamilton

Introduction

This appeal sits at the intersection of two recurring challenges in federal civil rights litigation: the difficulty prisoners face in prosecuting complex medical-care claims without counsel, and the limited judicial power to conscript pro bono representation. Plaintiff-appellant Armin Wand, III, a Wisconsin prisoner, sued a prison nurse, defendant-appellee Beckey Kramer, for failing to recognize appendicitis during a February 13, 2018 clinic visit, asserting Eighth Amendment deliberate indifference and Wisconsin negligence. The next day, Kramer identified likely appendicitis and promptly sent Wand to the hospital, where he underwent emergency surgery for a ruptured appendix.

After the district court denied summary judgment for Kramer, it recruited an experienced personal-injury lawyer for settlement only. When settlement failed and counsel withdrew, the court denied Wand’s final motion to recruit trial counsel. That motion—unlike earlier requests—disclosed that Wand is legally blind and has a severe stutter. Proceeding pro se, Wand tried the case to a jury, which returned a defense verdict. On appeal, the Seventh Circuit addressed two questions: whether the denial of recruited counsel was an abuse of discretion under 28 U.S.C. § 1915(e)(1) and Pruitt v. Mote, and, even if so, whether Wand showed the requisite prejudice to obtain a new trial. The court affirmed, resting primarily on the absence of prejudice given the substantive weakness created by Wand’s own trial testimony and the impracticality of securing supportive expert testimony.

Summary of the Opinion

The Seventh Circuit affirmed the judgment for Nurse Kramer. Applying the framework of Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc), the court declined to decide whether the district court abused its discretion in denying Wand’s final request to recruit trial counsel. Instead, it held Wand failed to demonstrate prejudice: there was no reasonable likelihood that the presence of counsel would have produced a different outcome.

Two considerations drove the prejudice analysis:

Pivotal trial testimony: At trial, Wand testified he did not report right-lower-quadrant (RLQ) pain—a classic appendicitis sign—to Kramer on February 13. That testimony contradicted his pretrial account but was clear and consistent. Given the case’s posture, that admission effectively foreclosed liability on a “classic symptoms ignored” theory and left only a theory requiring expert proof of a breach of professional standards even in the absence of RLQ pain.
Expert feasibility: The court saw no realistic prospect that counsel could have secured a qualified expert to opine that Kramer’s February 13 response—considering Wand’s symptoms and normal vitals, without RLQ pain—was negligent or deliberately indifferent. Nurse Kramer’s actions conformed to DOC nursing protocols, and the record lacked public or comparable authorities suggesting a contrary standard of care.

The court also emphasized that district judges may consider the likely merits and practical constraints (including prior counsel’s withdrawal and the scarcity of experts willing to testify) in ruling on counsel recruitment, and that active judicial accommodations at trial can mitigate, though not eliminate, disadvantages from a pro se litigant’s disabilities. Because Wand did not show a reasonable likelihood that counsel would have changed the outcome, reversal was unwarranted.

Analysis

Precedents Cited and Their Influence

Pruitt v. Mote, 503 F.3d 647 (7th Cir. 2007) (en banc): Anchors the two-step inquiry under § 1915(e)(1)—(1) plaintiff’s efforts to secure counsel, and (2) whether, given case difficulty, the plaintiff appears competent to litigate. Critically, Pruitt holds that even if denial of counsel is an abuse of discretion, reversal requires a showing of prejudice: a “reasonable likelihood” that counsel would have made a difference. The panel hewed closely to this standard, using it to resolve the appeal on prejudice without deciding abuse of discretion.
Mallard v. U.S. District Court, 490 U.S. 296 (1989): Reaffirmed no power to compel lawyers to serve; § 1915(e)(1) is permissive (“may” request). This underlies the court’s sensitivity to the scarcity of volunteer counsel and the practicality of limited appointments (e.g., for mediation only).
Farmer v. Haas, 990 F.2d 319 (7th Cir. 1993), and Johnson v. Doughty, 433 F.3d 1001 (7th Cir. 2006): Support that recruitment is discretionary and that, in medical cases, parties may rely on defendants’ testimony to establish standards of care. The opinion cites Johnson n.6 and Wisconsin authority to validate using a defendant clinician’s testimony to set the standard.
James v. Eli, 889 F.3d 320 (7th Cir. 2018); Pennewell v. Parish, 923 F.3d 486 (7th Cir. 2019); Dewitt v. Corizon, 760 F.3d 654 (7th Cir. 2014); Henderson v. Ghosh, 755 F.3d 559 (7th Cir. 2014): Recognize that medical complexity and physical impediments often favor recruitment for trial but do not create categorical entitlements. The opinion balances these considerations against practicality and the case’s substance.
Watts v. Kidman, 42 F.4th 755 (7th Cir. 2022); McCaa v. Hamilton (McCaa II), 959 F.3d 842 (7th Cir. 2020), and McCaa v. Hamilton (McCaa I), 893 F.3d 1027 (7th Cir. 2018): Clarify district courts may consider the likely merits when deciding recruitment and that prejudice requires more than speculation. The court invokes these cases to validate consideration of whether expert support is realistically attainable.
Harrington v. Richter, 562 U.S. 86 (2011), and Strickland v. Washington, 466 U.S. 668 (1984): Employed by analogy to explain that “reasonable likelihood” prejudice is akin to Strickland’s “reasonable probability” standard—a substantial likelihood, not a mere conceivable possibility, of a different result.
Brown v. Osmundson, 38 F.4th 545 (7th Cir. 2022); Sherrod v. Lingle, 223 F.3d 605 (7th Cir. 2000); Estate of Cole v. Fromm, 94 F.3d 254 (7th Cir. 1996); Petties v. Carter, 836 F.3d 722 (7th Cir. 2016) (en banc): Establish that appendicitis can be difficult to diagnose early, that deliberate indifference requires more than malpractice—i.e., a substantial departure from accepted judgment—and that classic appendicitis signs (e.g., RLQ pain, guarding, fever) matter. These cases inform the panel’s conclusion that absent RLQ pain and with normal vitals on February 13, expert support would be hard to muster.
Carney‑Hayes v. Northwest Wisconsin Home Care, Inc., 2005 WI 118, 284 Wis. 2d 56, 699 N.W.2d 524, and Shurpit v. Brah, 30 Wis. 2d 388, 141 N.W.2d 266 (1966): Wisconsin law permitting use of a defendant provider’s testimony to establish the standard of care in malpractice. The Seventh Circuit leverages these authorities to validate the district court’s plan to have Kramer supply standard-of-care testimony under Wisconsin law for Wand’s parallel negligence claim.
Rivera v. Kettle Moraine Correctional Institution, No. 14‑C‑6, 2016 WL 2766642 (E.D. Wis. May 12, 2016), and related 2014 order, 2014 WL 2875897: A close factual comparator used to test prejudice. The panel distinguishes Rivera on two decisive facts—HIV status triggering urgent referral protocols and repeated observations of the prisoner clutching the RLQ—neither present here. The court also highlights Rivera’s practical-cost discussion as relevant guidance when weighing whether recruitment (and expert procurement) is realistic and justified.
Rowe v. Gibson, 798 F.3d 622 (7th Cir. 2015), and Goodvine v. Ankarlo, No. 12‑CV‑134‑WMC, 2013 WL 1192397 (W.D. Wis. Mar. 22, 2013): Address the possibility and complications of appointing neutral experts under Rule 706. The panel notes the tool exists but emphasizes it is not mandatory and can raise complex compensation issues.

Legal Reasoning

The court frames its analysis under § 1915(e)(1) and Pruitt around two distinct lenses: (1) abuse-of-discretion review for the denial of recruitment, and (2) prejudice as an independent predicate for reversal. It then resolves the appeal on the second lens.

Abuse-of-discretion framework (but no holding required): The court recites the familiar Pruitt factors—plaintiff’s efforts; case difficulty; plaintiff’s competence; and contextual factors such as literacy, communication skills, education, litigation experience, and physical or psychological impediments. It also notes that courts may consider the likely merits when allocating scarce attorney resources (Watts, McCaa II). Without deciding whether the district court erred, the panel acknowledges the motion presented a “close question” in light of Wand’s blindness and stutter, the complexity of medical proof, and the reality that prior recruited counsel had limited his appearance to mediation and then withdrew.
Record scope rules: On abuse-of-discretion review, the court may consider only the record as it existed when the motion was denied. However, for prejudice, the analysis properly compares the actual trial to a hypothetical trial with counsel and may consider the substantive viability of the claims and the practical prospect of developing necessary expert proof.
Prejudice standard applied: Following Pruitt, prejudice requires a reasonable likelihood that counsel would have altered the outcome, not merely that counsel would have performed better. Here, two “paths” framed potential liability:
- Path 1—“Classic symptom” theory: If Wand had reported RLQ pain on February 13, Kramer’s failure to escalate would likely have presented a straightforward credibility contest not requiring expert proof. But Wand testified he did not report RLQ pain until February 14. That clear, consistent trial testimony undercut the core factual premise, and attempting to rehabilitate with prior inconsistent statements would have been both evidentiary problematic (hearsay if offered by Wand himself) and strategically damaging (self‑impeachment on the central issue).
- Path 2—“Non‑RLQ symptoms still required escalation” theory: Absent RLQ pain, Wand needed expert testimony to show Kramer breached the professional standard of care on February 13. The record showed normal vitals, generalized pain above the navel, soft and non‑distended abdomen, present bowel sounds, dehydration from vomiting, and nursing orders consistent with DOC protocols (ice chips, liquid diet, rest, acetaminophen, Pepto‑Bismol, follow‑up, and instructions to report worsening). The court saw no realistic prospect that counsel could have secured an expert to opine that this response was negligent or a substantial departure from accepted judgment constituting deliberate indifference.
Use of defendant testimony and protocols: The court approved the district court’s approach—permitting Wand to elicit the standard of care from Kramer and her supervisor and to use Wisconsin DOC nursing protocols—citing Wisconsin authority (Carney‑Hayes; Shurpit) and Seventh Circuit precedent (Johnson n.6). While not ideal, this was a permissible and practical alternative to recruited experts, especially where the standard was undisputed regarding RLQ pain.
Role of accommodations and trial management: The district judge’s active trial management—including reading Wand’s opening when his stutter impeded delivery, instructing jurors about his disabilities, and repeatedly clarifying questions and evidentiary use for both sides—counted as reasonable accommodations. The panel rejected the argument that such judicial interventions rendered the trial unfair; rather, they mitigated Wand’s disadvantages without demonstrating prejudice tied to the denial of counsel.
Neutral experts under Rule 706: The panel reaffirmed that appointment is discretionary, not required, and raises compensation issues. Given the substantive record, it would not have solved Wand’s prejudice problem.

Impact

This decision refines and operationalizes the Pruitt prejudice requirement in several practical respects that will guide future prisoner medical-care litigation:

Prejudice must be concrete, not speculative: Prisoners cannot obtain reversal by hypothesizing that counsel might find a favorable expert. Courts will ask whether there is a realistic pathway—grounded in record facts, known standards, and comparable authorities—to expert support that could change the outcome.
Substantive weakness forecloses relief—even if the denial was a close call: Where the plaintiff’s own trial testimony negates a critical factual predicate (here, RLQ pain on the first day), appellate courts will not presume counsel could undo that damage.
District courts may consider merits and practical constraints when recruiting counsel: Beyond case difficulty and litigant capacity, judges can weigh prior counsel’s withdrawal, the unlikelihood of expert procurement, and the costs/benefits of recruiting when allocating finite pro bono resources.
Active judicial accommodations can matter: The opinion endorses robust trial management to help pro se litigants present admissible, comprehensible evidence. While not a substitute for counsel, such accommodations are relevant to the fairness inquiry and may blunt claims of prejudice.
No back-door right to counsel via expert necessity: Even in medically complex cases, there is no categorical entitlement to recruited counsel or neutral experts. The court expressly resists a rule that would effectively mandate counsel in most adverse-outcome medical claims brought by prisoners.
Guidance on evidentiary tactics for pro se litigants: The opinion implicitly cautions that a plaintiff’s prior inconsistent statements are not a safe vehicle to supply missing substantive proof; they are primarily impeachment tools and can backfire by undermining credibility on central facts.

Complex Concepts Simplified

Deliberate indifference vs. negligence: Negligence (malpractice) is failure to meet the professional standard of care. Deliberate indifference under the Eighth Amendment requires more: a treatment decision that is such a substantial departure from accepted professional judgment that it shows the provider was not exercising medical judgment at all.
Recruitment of counsel (§ 1915(e)(1)): Federal courts may request (but cannot compel) volunteer counsel for indigent civil litigants. The Pruitt test asks whether the plaintiff tried to find a lawyer and whether, given the case’s difficulty, the plaintiff appears competent to litigate. Even then, reversal for denial requires prejudice—a reasonable likelihood counsel would have changed the outcome.
Abuse-of-discretion vs. prejudice review: Whether the denial itself was an abuse looks only at the record at the time of the ruling. Prejudice review asks whether having counsel would likely have altered the verdict—assessed against the trial that occurred and realistic prospects for additional proof (like experts).
Standard of care proof without plaintiff’s expert: In Wisconsin, a defendant medical provider’s testimony and applicable institutional protocols can establish the standard of care. If facts are undisputed and show compliance, plaintiff must supply countervailing expert evidence to show breach.
RLQ pain and appendicitis: Localized right-lower-quadrant abdominal pain, “guarding,” fever, and worsening vitals are classic appendicitis indicators requiring urgent escalation. Generalized “stomach” pain with normal vitals can mimic benign gastrointestinal issues, complicating early diagnosis.
Prior inconsistent statements: A party generally cannot offer his own prior out-of-court statements as substantive evidence of what happened (hearsay). If introduced, they typically serve to impeach credibility, not to prove the truth of the matter asserted—especially problematic when the inconsistency goes to the case’s core fact.
Rule 706 neutral experts: Courts may appoint neutral experts but are not required to. Funding, neutrality, and scope issues make this an exceptional tool, not a routine substitute for party-retained experts.

Conclusion

The Seventh Circuit’s decision in Wand v. Kramer does not rewrite the law of appointed counsel for indigent civil litigants; instead, it sharpens the practical application of Pruitt’s prejudice requirement in prisoner medical-care cases. The court holds the line on two fronts. First, it refuses to transform the permissive recruitment statute into a de facto right to counsel by treating the mere possibility of locating an expert as sufficient prejudice. Second, it underscores that a plaintiff’s own trial concessions can fatally weaken a case beyond counsel’s power to salvage—particularly when those concessions negate the core factual premise (here, RLQ pain on the first day).

The opinion also provides pragmatic guidance to district judges: they may weigh the likely merits and feasibility of expert procurement in deciding whether to recruit counsel and may rely on active trial management and accommodations to ensure fairness when counsel is unavailable. For litigants, the decision highlights the imperative of consistency on central facts, the evidentiary limits of prior statements, and the need to understand when expert testimony is indispensable. In the broader legal landscape, Wand reaffirms a disciplined, evidence-grounded approach to prejudice, ensuring that scarce pro bono resources and judicial tools are deployed where they are reasonably likely to matter.