Cooper, Demetrius v. Meyer et al
ORDER that Plaintiff Demetrius Cooper's motion for leave to amend his complaint, Dkt. 121 , is DENIED.Plaintiff's motions to compel, Dkt. 72 and Dkt. 83 , are DENIED as moot.Plaintiff's motions for sanctions, Dkt. 102 and Dkt. 103 , are DENIED.Plaintiff's motion for entry of default, Dkt. 126 , is DENIED. Plaintiff's motions for assistance in bringing criminal charges and asserting jurisdiction over criminal prosecutions, Dkt. 118 and Dkt. 127 , a re DENIED. Plaintiff's motion for partial summary judgment, Dkt. 56 , is DENIED. Defendants' motion for summary judgment, Dkt. 73 , is DENIED. Plaintiff's motion for leave to file a surreply, Dkt. 128 , is DENIED as moot. Plaintiff's motion for assistance in recruiting counsel, Dkt. 105 , is DENIED without prejudice. Plaintiff's motion for appointment of an expert, Dkt. 129 , is DENIED without prejudice. Signed by District Judge James D. Peterson on 12/4/2017. (jef),(ps)
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN
OPINION & ORDER
JEFFREY MEYER, PATRICK GORMAN, and
Pro se plaintiff Demetrius Cooper, a state prisoner confined at the Waupun
Correctional Institution (WCI), is proceeding on claims under the First and Eighth
Amendments against defendants Jeffrey Meyer, Patrick Gorman, and Cory Sabish, WCI
employees. He alleges that Meyer used excessive force when restraining him with handcuffs,
that Gorman and Sabish failed to intervene despite witnessing the use of excessive force, that
Meyer and Gorman demonstrated deliberate indifference to his mental health needs, that all
three defendants demonstrated deliberate indifference to his medical need caused by Meyer’s
excessive force, and that Gorman later retaliated against him by placing a razor blade in him
food. Several motions are ripe for a decision, including the parties’ cross-motions for summary
judgment. Each of Cooper’s claims turns on genuinely disputes issues of material fact, so I will
deny both summary judgment motions.
A. Motion for leave to amend
Cooper moves for leave to amend his complaint to add state-law claims of negligence,
battery, and attempted homicide. Dkt. 121. Under Federal Rule of Civil Procedure 15, the
court should freely give leave to amend a complaint when justice so requires. “[L]eave to amend
need not be given if there is an apparent reason not to do so, such as ‘undue delay, bad faith
or dilatory motive on the part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the opposing party by virtue of allowance
of the amendment, [or] futility of amendment.’” Payne v. Churchich, 161 F.3d 1030, 1036 (7th
Cir. 1998) (alteration in original) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). Here,
the issue is undue delay. Cooper filed his motion to amend his complaint to include claims of
negligence, battery, and attempted homicide shortly before the parties’ cross-motions for
summary judgment were fully briefed. He offers no explanation for why he waited so long to
bring these claims. To allow him to amend his complaint now, when summary judgment
motions are briefed, would prejudice defendants and contradict the purpose of a complaint,
which is to “give the defendant fair notice” of the plaintiff’s claims. Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
Were I to grant Cooper’s motion, I would have to screen his proposed new claims under
28 U.S.C. § 1915A, just as I screened the claims in his original complaint. Cooper’s new claims
are under state law, but he does not allege that he has filed a notice of his claims with the state
attorney general, as required by Wisconsin’s notice-of-claim statute, Wis. Stat. § 893.82(3),
which is a jurisdictional requirement for state-law claims against state employees. Ibrahim v.
Same, 118 Wis. 2d 720, 726, 348 N.W.2d 554, 557–58 (1984). So I would have to allow
Cooper a short time to supplement his complaint explaining whether he has complied with the
notice-of-claim statute, which would cause further delay. Also, attempted homicide is a criminal
offense in Wisconsin. Cooper offers no authority that permits him to recover damages in a civil
suit for attempted homicide, and I can think of none. In any event, I would not allow Cooper
to proceed on this claim because he brings it so late. Cooper’s motion for leave to amend his
complaint is denied.
B. Motion to compel
Cooper moves to compel defendants to respond to his discovery requests under Federal
Rule of Civil Procedure 37. Dkt. 72 and Dkt. 83. Defendants indicate that they have since
responded to Cooper’s requests. One of Cooper’s requests was for a list of all WCI inmates
housed on A Range on February 4, 2016. Defendants initially responded to this request by
sending Cooper a list of inmates housed on A Range on February 2, 2016. They have realized
their error and have now supplied Cooper with a list for February 4, 2016. That list was
processed on the morning of February 5, 2016, but defendants explain that it reflects cell
assignments on February 4. So it appears that defendants have adequately responded to
Cooper complains that some of defendants’ responses are untruthful. Rule 37 does not
concern the content of responses; it allows parties to move to compel a response when a party
fails to respond entirely or provides and incomplete or evasive response. Cooper has not shown
that defendants failed to respond or provided an incomplete or evasive response to any of his
requests, so I will deny his motions to compel as moot.
C. Motion for sanctions
Cooper moves the court to impose sanctions on defendants’ counsel for deliberately
sending him the February 2 housing list despite knowing that he wanted the February 4 housing
list. Dkt. 103. Defendants’ counsel admitted his error and promptly corrected it. Cooper has
suffered no prejudice. I will not impose a sanction for this error.
Cooper also moves the court to impose sanctions on defendants Meyer and Gorman.
Dkt. 102. He contends that they committed perjury. He points to an inconsistency between
defendants’ answer to his amended complaint, which states that “Gorman and Meyer together”
escorted Cooper back to his cell, Dkt. 42, ¶ 23, and Gorman’s and Meyer’s later declarations,
which indicate that only Meyer escorted Cooper back to his cell. See Dkt. 74, ¶ 31 (“[Meyer]
removed Cooper from the strip cell to escort him back to his regular cell . . . .”); Dkt. 76, ¶ 12
(“Sometime later, Cooper was escorted back to his cell, however, [Gorman] was not one of the
officers who escorted him . . . .”). Human memory is not infallible. Cooper may point out these
inconsistencies in an attempt to impeach Meyer and Gorman, but I will not sanction them for
inconsistent statements about their memories of a detail that is likely immaterial anyway.
D. Motion for default
Cooper moves for entry of default against defendants. Dkt. 126. The clerk’s office is
responsible for entering default under Federal Rule of Civil Procedure 55(a) but has not done
so in this case because default is inappropriate.
Rule 55(a) provides that default must be entered against a party against whom
affirmative relief is sought, but who fails “to plead or otherwise defend.” Defendants have
vigorously defended themselves, so default is inappropriate. Cooper argues that defendants
failed to reply in support of their summary judgment motion by the deadline. This is not true:
defendants filed their reply materials on August 21, well before the deadline of September 15.
See Dkt. 90 (“Defendants’ reply deadline . . . is extended to September 15, 2017.”); Dkts. 123–
25. And even if defendants had not replied, default would still be inappropriate. Cooper’s
motion for entry of default is denied.
E. Motions concerning criminal prosecution
Cooper filed a motion asking the court to assist him in pressing criminal charges against
Meyer and Gorman. Dkt. 118. He has since successfully filed a John Doe petition in Wisconsin
state court, which has been referred to the Dodge County District Attorney, so it appears he
no longer needs assistance. See Dkt. 130 and Dkt. 130-1. Cooper also moves the court to
exercise supplemental jurisdiction under 28 U.S.C. § 1367 over criminal charges against Meyer
and Gorman or to “allow the jury to decide” if Meyer and Gorman should face criminal charges.
Dkt. 118, ¶ 12, and Dkt. 127. Section 1367 allows for supplemental jurisdiction over state-law
civil claims, not criminal prosecutions. No federal court can assume jurisdiction over state
criminal proceedings. And “courts have long held that a civil litigant may not seek relief in civil
litigation in the form of an order directing the criminal prosecution of some third parties
[because] civil plaintiffs lack standing to make such claims and . . . such relief simply is
unavailable in a civil lawsuit.” Miller v. Zandieh, No. 15-cv-34, 2015 WL 999208, at *6 (M.D.
Penn. Mar. 5, 2015) (collecting cases). Federal courts cannot interfere with state criminal
prosecutions. See Younger v. Harris, 401 U.S. 37, 41 (1971). I will deny Cooper’s motions
concerning criminal prosecution.
A. Undisputed facts
The following facts, except where noted, are undisputed.
1. February 4, 2016
On February 4, 2016, defendants Jeffrey Meyer, Patrick Gorman, and Cory Sabish were
all working at the Waupun Correctional Institution (WCI), where plaintiff Demetrius Cooper
was incarcerated. Gorman and Meyer were correctional officers; Sabish was a captain.
The parties agree on the broad outline of the day’s events. Cooper, who was in his cell
in segregation, asked Meyer to place him in observation because he might harm himself if left
alone in his cell. Meyer asked Gorman to help him escort Cooper to a strip cell to wait for a
Psychological Services Unit (PSU) consultation. Under Division of Adult Institutions (DAI)
Policy 500.70.24, PSU staff, doctors, and wardens may approve placement of an inmate in
observation; correctional officers like Meyer and Gorman may not. Supervisors such as Sabish
may approve observation placement only if PSU staff “are not immediately available for
consultation.” Dkt. 74-1, at 2. When removing an inmate from his cell, WCI staff usually apply
a tether cuff to the inmate’s wrist; the other end is secured to the cell door. Then, the inmate
places his hands behind his back and the staff member applies handcuffs to the inmate’s wrists
and removes the tether cuff. Meyer followed this procedure while Gorman was present. Gorman
then placed leg restraints on Cooper. Meyer escorted Cooper to a strip cell, and applied the
tether cuff to Cooper’s wrist. Cooper complained that the handcuffs were too tight. At some
point, Sabish checked the handcuffs and did not loosen them. Eventually, Cooper asked to go
back to his cell and to see a nurse about his wrist. He was escorted back to the segregation cell
and told to submit a Health Services Request (HSR). Cooper did so that afternoon; he
submitted follow-up HSRs on February 5 and 7. At 9 a.m. on February 8, Cooper was seen by
a nurse. The nurse noted an abrasion measuring one-half inch by one-eighth inch on his left
wrist and provided Cooper with antibiotic ointment. She did not note any other redness or
swelling. At 9:45 a.m., a PSU staff member noted that Cooper had a “cut” on his wrist that
“looked infected.” Dkt. 75-1, at 36. Cooper has complained of weakness, pain, and tingling in
his wrist since then.
But the parties dispute many of the material details of the day’s events. According to
Cooper, when he asked to be placed in observation, Meyer said, “I don’t have time for your
suicidal bullshit.” Dkt. 58, ¶ 4. After Cooper said he was serious about his request, Meyer asked
Gorman to help escort Cooper to the strip cell. After Cooper placed his hands behind his back,
Meyer twisted his wrist, slammed his hands against the trap door, and applied the handcuffs
so tightly that they crushed Cooper’s wrists and caused his hands to become numb. Cooper
complained that the handcuffs were too tight, but Meyer refused to loosen them. Instead,
Meyer told Cooper, “Get on your fucking knees.” Dkt. 109, ¶ 11. Cooper did so, and Gorman
placed the leg restraints on him. Meyer escorted Cooper to the strip cell, and applied the tether
cuff very tightly, too. Despite Cooper’s continued complaints about the handcuff fit, Meyer
and Gorman never checked the handcuffs. Meyer told Cooper, “I fucking warned you not to
fuck the rest of my day up with your suicidal bullshit[.] Now you’re going to deal with mine.”
Id. ¶ 13. Cooper kept “screaming and begging” for them to loosen the handcuffs, but they
refused. Id. ¶ 19. Nor did they contact PSU. After 30 minutes, Cooper asked to return to his
cell because he was in so much pain. Sabish checked his handcuffs and said, “he’s only bleeding
a little bit, he’ll survive, leave him there a while.” Id. ¶ 18. At some point, Meyer and Gorman
told Cooper that he would not be seen by PSU. But they still didn’t take him back to his cell.
Several hours after Cooper’s initial request for observation, Gorman presented Cooper with a
choice: continue to request observation and remain in handcuffs, or go back to his cell. Cooper
asked to see a nurse about his wrist, which he believed to be broken. Sabish, Gorman, and
Meyer all refused his request. Instead, they told Cooper to submit an HSR. Gorman then
returned Cooper to the segregation cell, where he removed the handcuffs and leg restraints.
Once in his cell, Cooper attempted to hang himself.
Defendants offer a different version of events. According to them, Meyer didn’t twist
Cooper’s wrist, slam Cooper’s hands, or apply the handcuffs too tightly. When Cooper
complained about the handcuffs, Meyer checked the fit and determined that they weren’t too
tight because he could put the tip of his finger between Cooper’s wrist and the cuff, although
he did see a “superficial scratch which barely broke the skin on Cooper’s wrist.” Dkt. 74, ¶ 29.
Meyer also asked Gorman and Sabish to check; they agreed that the fit was proper. Meyer told
Cooper that the handcuffs and tether cuff would remain on until the PSU consultation, but
that if Cooper no longer needed observation, Meyer would return him to his cell. Meyer then
relayed Cooper’s request for observation to PSU. After a while, Cooper told Meyer that he
“didn’t need observation anymore and wanted to go back to his cell.” Id. ¶ 20. Meyer doesn’t
remember exactly when this happened, but notes that a PSU consultation usually occurs within
30 minutes to an hour after an inmate requests observation. Meyer contacted PSU and was
approved to return Cooper to his cell; he did so. While removing Cooper’s handcuffs and tether
cuff, Meyer saw “a slight redness” on one of Cooper’s wrists, but no other signs of injury. Id. ¶
33. Because Cooper was moving his wrists, Meyer surmised that Cooper was not suffering from
a severe injury. Cooper asked to see a nurse. Meyer described his observations to a nurse, who
agreed that Cooper did not need emergency medical treatment. Meyer instructed Cooper to
submit an HSR regarding his wrist pain.
2. March 8, 2017
Just before lunch on March 8, 2017, Cooper was discussing this lawsuit with another
inmate while Gorman was passing out lunch trays. Later, when Gorman and Correctional
Officer Jason Rosenthal collected his lunch tray, Cooper notified them that he had found a
razor blade in his soup and spit it out. He gave the razor blade to Rosenthal on his tray;
Rosenthal set the tray aside and continued to collect trays from other inmates. When Rosenthal
was done, he notified Captain Kyle Tritt and the Health Services Unit (HSU) about the
incident. He then took Cooper to HSU. A nurse there noted small cuts on Cooper’s tongue
and a slight cut on his lower gum. No treatment was required.
Again, the details are disputed. According to Cooper, while passing out trays, Gorman
said, “You won’t get a chance to enjoy any of it.” Dkt. 38, ¶ 3. Once Cooper told Rosenthal
and Gorman about the razor blade, Gorman told Rosenthal, “I put that there hoping [Cooper
would] swallow it.” Id. ¶ 6. Defendants, unsurprisingly, dispute this; they say that Gorman did
not make these statements and did not place a razor blade in Cooper’s soup.
Cooper is proceeding on the following claims: (1) an Eighth Amendment excessive force
claim against Meyer concerning the February 4 incident; (2) Eighth Amendment failure-tointervene claims against Gorman and Sabish concerning the February 4 incident; (3) Eighth
Amendment deliberate indifference to mental health needs claims against Meyer and Gorman
concerning the February 4 incident; (4) Eighth Amendment deliberate indifference to medical
needs claims against Meyer, Gorman, and Sabish concerning the February 4 incident; (5) a
First Amendment retaliation claim against Gorman concerning the March 8 incident; and (6)
an Eighth Amendment excessive force claim against Gorman concerning the March 8 incident.
Defendants move for summary judgment on all of Cooper’s claims; Cooper moves for summary
judgment on the deliberate indifference to mental health needs claims.
Summary judgment is appropriate if the moving party “shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a). “Only disputes over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). Where, as here, the parties have filed cross-motions for
summary judgment, the court “look[s] to the burden of proof that each party would bear on
an issue of trial; [and] then require[s] that party to go beyond the pleadings and affirmatively
to establish a genuine issue of material fact.” Santaella v. Metro. Life Ins. Co., 123 F.3d 456, 461
(7th Cir. 1997). If either party cannot create a genuine dispute, summary judgment against
that party is appropriate. “As with any summary judgment motion, this [c]ourt reviews these
cross-motions ‘construing all facts, and drawing all reasonable inferences from those facts, in
favor of . . . the non-moving party.’” Wis. Cent., Ltd. v. Shannon, 539 F.3d 751, 756 (7th Cir.
2008) (quoting Auto. Mechs. Local 701 Welfare & Pension Funds v. Vanguard Car Rental USA,
Inc., 502 F.3d 740, 748 (7th Cir. 2007)). In this case, Cooper bears the burden of proving
defendants’ liability under 42 U.S.C. § 1983.
1. Excessive force
Cooper contends that Meyer subjected him to excessive force on February 4, 2016, in
violation of his Eighth Amendment right to be free from cruel and unusual punishment. To
withstand summary judgment, Cooper must point to admissible evidence that Meyer applied
force “maliciously and sadistically for the very purpose of causing harm,” rather than “in a good
faith effort to maintain or restore discipline.” Hudson v. McMillian, 503 U.S. 1, 6–7 (1992)
(quoting Whitley v. Albers, 475 U.S. 312, 320–21 (1986)). The factors relevant to this
determination include (1) why force was needed; (2) how much force was used; (3) the extent
of the injury inflicted; (4) whether the defendant perceived a threat to the safety of staff and
prisoners; and (5) whether efforts were made to temper the severity of the force. Whitley, 475
U.S. at 321.
Here, a reasonable juror could find that Meyer applied force to Cooper maliciously and
sadistically. It’s undisputed that Meyer needed to place handcuffs on Cooper’s wrists. But
Cooper adduces evidence in the form of his own testimony and medical records showing at
least some injury that Meyer twisted his wrist, slammed his hands against the trap door, and
applied the handcuffs very tightly. Cooper says this extreme force caused him great pain at the
time and that the pain continued for months after the incident. I will deny defendants’
summary judgment motion on this claim.
2. Failure to intervene
Cooper contends that Gorman and Sabish failed to intervene to prevent Meyer’s use of
excessive force against him on February 4, 2016, in violation of his Eighth Amendment right
to be free from cruel and unusual punishment. To withstand summary judgment on these
claims, Cooper must point to admissible evidence that Gorman and Sabish has a “realistic
opportunity to step forward and prevent [Meyer] from violating [Cooper’s] right through the
use of excessive force but fail[ed] to do so.” Harper v. Albert, 400 F.3d 1052, 1064 (7th Cir.
2005) (quoting Miller v. Smith, 220 F.3d 491, 495 (7th Cir. 2000)).
Defendants’ sole argument for summary judgment on this claim is that Meyer did not
use excessive force against Cooper. If that is true, then there was nothing for Gorman and
Sabish to prevent. But as discussed above, a reasonable juror could find that Meyer used
excessive force on Cooper. A reasonable juror could also find that Gorman and Sabish saw
Meyer apply excessive force and heard Cooper’s complaints that the handcuffs were too tight
and had a reasonable opportunity to intervene, but failed to do so. So I will deny defendants’
motion for summary judgment on these claims.
3. Deliberate indifference to mental health needs
Cooper contends that Meyer and Gorman were deliberately indifferent to his mental
health needs on February 4, in violation of his Eighth Amendment right to be free from cruel
and unusual punishment. To prevail on these claims, Cooper must show that he “suffered an
objectively serious harm that presented a substantial risk to his safety” and that Meyer and
Gorman knew of and “intentionally disregarded the risk.” Minix v. Canarecci, 597 F.3d 824,
831 (7th Cir. 2010). A risk of suicide is an objectively serious harm. Id. There’s no dispute that
Meyer and Gorman knew about that risk. The sole question here is whether their response was
appropriate or whether they intentionally disregarded the risk of suicide.
Drawing all inferences from the facts in Cooper’s favor, a reasonable juror could find
that Meyer and Gorman were deliberately indifferent to his mental health needs. Cooper
adduces evidence that Meyer and Gorman refused to provide him with a PSU consultation or
place him in observation and instead restrained him in a painful manner for several hours
before returning him to his cell, where he attempted suicide. So I will deny defendants’
summary judgment motion on these claims.
This is the sole claim that Cooper moves for summary judgment on. Drawing all
inference from the facts in defendants’ favor, a reasonable juror could find that Meyer and
Gorman did not intentionally disregard Cooper’s mental health needs. Defendants adduce
evidence that Meyer and Gorman arranged for a PSU consultation so that Cooper could be
placed in observation and that they ensured, through the use of restraints, that Cooper could
not harm himself while waiting for the consultation. A reasonable juror could find that this
treatment was appropriate. So I will deny Cooper’s summary judgment motion on these claims,
4. Deliberate indifference to medical needs
Cooper contends that Meyer, Gorman, and Sabish were deliberately indifferent to his
wrist injury on February 4. Again, to prevail on these claims, Cooper must show that he suffered
an objectively serious harm and that defendants knew of and intentionally disregarded it. Delay
in treatment may constitute deliberate indifference if the delay unnecessarily prolonged the
plaintiff’s pain. Gevas v. McLaughlin, 798 F.3d 475, 480 (7th Cir. 2015).
Drawing all inferences from the facts in Cooper’s favor, a reasonable juror could find
that defendants intentionally disregarded an objectively serious harm. Cooper had an abrasion
on his wrist that, by the time he received medical care four days later, had become infected.
Defendants knew about the abrasion and heard Cooper ask to see a nurse, but refused, causing
a four-day delay in treatment and prolonged pain. So I will deny defendants’ summary
judgment motion on these claims.
Cooper contends that Gorman retaliated against him for filing this lawsuit by placing a
razor blade in his soup on March 8, 2017, in violation of his First Amendment rights. To prevail
on his First Amendment retaliation claim, Cooper must show that: (1) he engaged in activity
protected by the First Amendment; (2) Gorman took actions that would deter a person of
“ordinary firmness” from engaging in the protected activity; and (3) the First Amendment
activity was at least a “motivating factor” in Gorman’s decision to take those actions. Bridges v.
Gilbert, 557 F.3d 541, 546 (7th Cir. 2009). The filing of a lawsuit is protected by the First
Amendment. See Novoselsky v. Brown, 822 F.3d 342, 355 (7th Cir. 2016).
Here, a reasonable juror could find that Gorman placed a razor blade in Cooper’s soup
in retaliation for filing this lawsuit. Defendants argue that the only evidence of Gorman’s
statements (“You won’t get a chance to enjoy any of it” and “I put that [razor blade] there
hoping [Cooper would] swallow it”) are inadmissible “self-serving affidavits.” Dkt. 79, at 16–
17. This objection is frivolous: a party’s own affidavit is sufficient to support his position “as
long as it otherwise contains information that would be admissible if he were testifying
directly.” Rooni v. Biser, 742 F.3d 737, 740 (7th Cir. 2014). Besides, the affidavits Cooper
adduces aren’t his own, but those of other prisoners. See Dkt. 38 and Dkt. 39.
Defendants also cite Babcock v. White, which explained that courts “should ‘afford
appropriate deference and flexibility’ to prison officials in the evaluation of proffered legitimate
penological reasons for conduct alleged to be retaliatory.” 102 F.3d 267, 275 (7th Cir. 1996)
(quoting Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995)). But there is no legitimate
penological reason to place a razor blade in an inmate’s soup, so no deference is due. Cooper
adduces evidence sufficient to withstand summary judgment on this claim.
6. Excessive force
Finally, Cooper contends that Gorman’s placing a razor blade in his soup also violated
his Eighth Amendment right to be free from cruel and unusual punishment. Again, to withstand
summary judgment on this claim, Cooper must point to admissible evidence that Gorman
applied force “maliciously and sadistically for the very purpose of causing harm,” rather than
“in a good faith effort to maintain or restore discipline.” Hudson, 503 U.S. at 6–7 (quoting
Whitley, 475 U.S. at 320–21). A reasonable juror could find that Gorman placed a razor blade
in Cooper’s soup, cutting Cooper’s mouth, which is the kind of unnecessary and wanton
infliction of pain prohibited by the Eighth Amendment. I will deny defendants’ motion for
summary judgment on this claim.1
RECRUITMENT OF COUNSEL
Cooper has moved for assistance in recruiting counsel four times. I have denied each of
his previous motions because he has not demonstrated that his is one of those relatively few
cases in which it appears from the record that the legal and factual difficulty of the case exceeds
his demonstrated ability to prosecute it, nor has he identified what tasks, specifically, he is
unable to perform without counsel. Dkt. 10; Dkt. 22; Dkt. 24; Dkt. 61.
Now, Cooper renews his motion for the fifth time. Dkt. 105. He also moves for
appointment of an expert. Dkt. 129. He points out that defendants have disclosed two medical
professionals who may testify at trial. See Dkt. 88. Although both witnesses are expected to
testify about the care and treatment provided to Cooper—a topic on which Cooper is perfectly
able to address on his own—Cooper fears that they will provide expert testimony on medical
and mental health treatment, too. Without counsel, Cooper cannot obtain an expert on these
Because I am denying defendants’ summary judgment motion in full, I will deny Cooper’s
motion for leave to file a surreply, Dkt. 128, as moot.
The crux of this case is a factual dispute that requires no expert testimony. A juror must
simply decide who is telling the truth and who is lying. Expert testimony on medical and mental
health treatment is unnecessary for either party. And Cooper has done a fair job of representing
himself so far. There is no indication that a jury trial will exceed his abilities. So I will deny
Cooper’s motions for appointment of counsel and an expert. The case will continue to trial.
IT IS ORDERED that:
1. Plaintiff Demetrius Cooper’s motion for leave to amend his complaint, Dkt. 121, is
2. Plaintiff’s motions to compel, Dkt. 72 and Dkt. 83, are DENIED as moot.
3. Plaintiff’s motions for sanctions, Dkt. 102 and Dkt. 103, are DENIED.
4. Plaintiff’s motion for entry of default, Dkt. 126, is DENIED.
5. Plaintiff’s motions for assistance in bringing criminal charges and asserting
jurisdiction over criminal prosecutions, Dkt. 118 and Dkt. 127, are DENIED.
6. Plaintiff’s motion for partial summary judgment, Dkt. 56, is DENIED.
7. Defendants’ motion for summary judgment, Dkt. 73, is DENIED.
8. Plaintiff’s motion for leave to file a surreply, Dkt. 128, is DENIED as moot.
9. Plaintiff’s motion for assistance in recruiting counsel, Dkt. 105, is DENIED without
10. Plaintiff’s motion for appointment of an expert, Dkt. 129, is DENIED without
Entered December 4, 2017.
BY THE COURT:
JAMES D. PETERSON
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