Cooper, Demetrius v. Meyer et al

Filing 179

ORDER denying plaintiff's 143 motion for assistance in recruiting counsel; granting plaintiff's 164 motion to strike affirmative defenses as to qualified immunity and discretionary immunity and denying the 164 motion as damages caus ed by plaintiff's actions; denying plaintiff's 146 request for a subpoena form, granting plaintiff's 132 petition for writs of habeas corpus ad testificandum, denying plaintiff's 148 motion to meet with incarcerated witness es, denying plaintiff's 152 , 165 motions to compel discovery, denying plaintiff's 154 motion for sanction as moot and denying plaintiff's 176 motion for an order regarding his legal loan as moot. Within seven days of the date of this order, defendants must attempt to assist plaintiff in locating Dr. Desiree Grin. Within seven days of the date of this order, defendants should provide their responses to any of plaintiff's discovery requests for which timelines s was their only objection. The clerk of court is directed to issue writs of habeas corpus ad testificandum for the attendance of plaintiff Demetrius Cooper and witnesses Remo Daniels, Jermaine Smith Capoeira, Michael Ramos, Ryan Pruitt, and Deandrae Mayweathers at trial beginning on April 30, 2018. Plaintiff and the witnesses should arrive at the courthouse no later than 8 a.m. Signed by District Judge James D. Peterson on 3/19/2018. (jef),(ps)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

DEMETRIUS COOPER,
Plaintiff,
v.

ORDER

JEFFREY MEYER, PATRICK GORMAN, and
CORY SABISH,

16-cv-526-jdp

Defendants.
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. The trial in this case will begin on April 30, 2018.
This order addresses the several motions now pending before the court.
A. Recruitment of counsel
Cooper moves for recruitment of counsel for the sixth time. Dkt. 143. I have denied
each of his previous motions because he had 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 had he identified what tasks, specifically,
he is unable to perform without counsel.
Cooper now identifies several tasks that counsel could help him with, including
engaging in discovery, creating an exhibit list, locating witnesses, and explaining things to the
jury. But Cooper has not shown that he is unable to perform these tasks without the assistance
of counsel. In fact, Cooper has demonstrated that he is able to perform some of these tasks—

such as engaging in discovery, see, e.g., Dkt. 165, and creating an exhibit list, see Dkt. 168—
without counsel. Cooper reiterates that he has mental health problems and has access to only
limited legal materials because he is often in segregation. As I have explained before, mental
health conditions, a lack of education, and limited access to legal materials are, unfortunately,
common among prisoners litigating in this court and are not alone reasons to recruit counsel.
Finally, Cooper notes that he will be transferred to another institution at some point and, as a
result, will lose the assistance of his jailhouse lawyer. Defendants have indicated that if Cooper
is transferred before trial, their counsel will ensure that he is able to access his legal paperwork
to prepare for trial. See Dkt. 149. And regardless whether he is transferred, he will not have
another inmate’s assistance at trial—and at this point, trial is the only thing left to do in this
case: Cooper’s claims have survived summary judgment and discovery is closed.
I do not take Cooper’s hardship lightly. “Almost everyone would benefit from having a
lawyer, but there are too many indigent litigants and too few lawyers willing and able to
volunteer for these cases.” Olson v. Morgan, 750 F.3d 708, 711 (7th Cir. 2014). I must choose
from “a sea of people lacking counsel, those who need counsel the most.” Id. It does not appear
that a jury trial will exceed Cooper’s abilities. So I will deny Cooper’s motion for assistance in
recruiting counsel.
B. Motion to strike affirmative defenses
Cooper moves to strike several of defendants’ affirmative defenses. Dkt. 164.
Defendants indicate that they intend to pursue only one of those defenses at trial: they wish
to introduce evidence that Cooper’s “actions may have caused or exacerbated any injuries he
claims from the wrist restraint placement.” Dkt. 174, at 1. Cooper argues that defendants
should be barred from asserting this defense because they “admitted Cooper did not have any

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injuries before Meyer placed the handcuffs on.” Dkt. 164, at 1. But that simply doesn’t
matter—it appears that defendants want to argue that Cooper’s injuries were caused by his
own actions after Meyer placed handcuffs on him. I see no reason to bar defendants from
presenting evidence in support of that argument, so I will deny Cooper’s motion to strike that
affirmative defense. I will grant the remainder of the motion as unopposed.
C. Request for a subpoena form
Cooper wants to subpoena Dr. Desiree Grin. Dkt. 146. Grin noted that a cut on
Cooper’s wrist “looked infected,” Dkt. 75-1, at 36, which is relevant to Cooper’s claim that
defendants were deliberately indifferent to his wrist injury. See Dkt. 131, at 13. Grin is a former
WCI employee, and Cooper has had trouble locating her. I previously instructed Cooper to ask
defendants to locate Grin for him. See Dkt. 142, at 13–14. It’s not clear whether he’s done so.
The court will not grant a request for a subpoena form unless the request is accompanied
by an affidavit stating that the witness refuses to testify voluntarily, among other things. See
Dkt. 20, at 42–43. Cooper has not submitted an affidavit supporting his request, presumably
because he has been unable to contact Grin. It is Cooper’s responsibility to complete the
subpoena form and send it to the United States Marshal for service, see id. at 43, and he would
not be able to do that without Grin’s contact information. So I will deny his motion. But I will
order defendants to assist Cooper in locating Grin. They must attempt to do so within seven
days of the date of this order. If, after Cooper contacts her, Grin refuses to testify voluntarily,
Cooper may renew his motion.
D. Petition for writs of habeas corpus ad testificandum
Cooper requests writs of habeas corpus ad testificandum for Remo Daniels, Jermaine
Smith Capoeira, Michael Ramos, Ryan Pruitt, and Deandrae Mayweathers, all prisoners at

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WCI. Dkt. 132. Defendants have not opposed Cooper’s request. In determining whether to
grant a petition for a writ of habeas corpus ad testificandum, I must consider whether the
prisoner’s testimony is sufficiently important to outweigh “the costs and inconvenience of
transporting a prisoner from his place of incarceration to the courtroom” and “any potential
danger or security risk which the presence of a particular inmate would pose to the court.” Stone
v. Morris, 546 F.2d 730, 735–36 (7th Cir. 1976). Cooper states that each witness
communicated their willingness to testify voluntarily when they signed their declarations,
which Cooper adduced in support of his summary judgment motion, and he explains that each
witness will testify consistent with the content of those declarations. In short, Ramos, Pruitt,
and Mayweathers will testify about what they heard Cooper and defendants say during the
February 4 incident; Daniels and Smith Capoeira will testify about what they heard Cooper,
Gorman, and non-party Correctional Officer Jason Rosenthal say during the March 8 incident.
(Most, if not all, of these statements appear to qualify for an exclusion or exception from the
rule against hearsay.) Because these witnesses’ declarations support Cooper’s claims, I will grant
the petition.
Cooper also asks to be allowed to meet with these incarcerated witnesses. Dkt. 148. He
explains that he has not communicated with them since obtaining their declarations and wants
to inform them of the date they are expected to testify at trial, “explain the court’s expectations
for courtroom behavior,” and “refresh” their memories. Id. at 1. The witnesses will learn of the
date they are expected to testify at trial when they are transferred to the court, and the court
will inform them of its expectations, if necessary. Should the witnesses forget or misremember
events while on the stand, Cooper may provide their prior written statements to them to refresh

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their memories. There is no need to Cooper to meet with the witnesses before trial, so I will
deny his motion.
E. Discovery-related motions
Cooper moves for an order compelling defendants to produce several categories of
documents and information. Dkt. 152. Cooper was satisfied with defendants’ responses to
several of his requests, so only two appear to still be at issue. First, Cooper wants “any and all
rules, regulations, and policies of the Wisconsin Department of Corrections about treatment,
protocol, policies, [or] procedures for inmates that ha[ve] suicidal ideation or threats of selfharm.” Id. at 1. Defendants already provided Cooper with copies of DAI Policy #500.70.24,
“Clinical Observation,” and DAI Policy #500.70.25, “Suicide Prevention in Adult Correctional
Facilities.” They have now provided him with a copy of the DAI Policy Index, as well. Cooper
still wants more, but it doesn’t appear that there are any other rules, regulations, or policies
that apply. I will not compel defendants to produce material that doesn’t exist.
Second, Cooper asks for “any and all excessive force complaints made by inmates
against each defendant during th[eir] employment in the DOC.” Dkt. 152, at 2. Defendants
indicate that they reviewed inmate complaints concerning each defendant and found no
affirmed complaints. There are some “dismissed inmate complaints” that were “deemed
unfounded after investigation.” Dkt. 161-1, at 3. Defendants object to providing those to
Cooper, arguing that they are irrelevant and would be inadmissible at trial. Information “need
not be admissible in evidence to be discoverable,” but it must be relevant to a claim or defense
and “proportional to the needs of the case.” Fed. R. Civ. P. 26(b)(1). Cooper argues that
dismissed inmate complaints are relevant “for impeachment purposes” because he plans to ask
each defendant “how many complaints of excessive force ha[ve] been filed about them.” Dkt.

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162, at 2. But complaints about defendants’ use of excessive force are not relevant to Cooper’s
claims—only defendants’ actual use of excessive force could be relevant to Cooper’s claims
(although likely inadmissible under Federal Rule of Evidence 404(b), as defendants point out).
Affirmed complaints of use of excessive force would tend to make it more probable that
defendants actually used excessive force, but there are no affirmed complaints concerning
defendants in this case. Unfounded complaints—that is, complaints that were investigated and
deemed to be untrue—would not tend to make it more probable that defendants actually used
excessive force. (I can imagine some situations in which unfounded complaints could be
relevant evidence—perhaps if the claim were that prison officials were routinely dismissing
complaints as unfounded without investigating them—but that’s not the case here.) So I will
deny Cooper’s motion to compel.
Cooper also moves for sanctions. Dkt. 154. He argues that defendants should have
produced an emergency call log in response to Cooper’s initial request for “all written
statements . . . identifiable as reports about the incident on 2-4-16, made by prison and civilian
employees or the Department of Corrections and prisoner witnesses.” Dkt. 154-1, at 1.
Defendants say they didn’t interpret “written reports” to include the emergency call log. I agree
that defendants’ initial nondisclosure was substantially justified, and because they disclosed
the call log once Cooper requested it specifically, sanctions aren’t called for. And even if
defendants should have produced the emergency call log sooner, I would not sanction them
because Cooper has not identified any expenses incurred in making his motion. Sanctions
under Federal Rule of Civil Procedure 37(a)(5) are limited to “the movant’s reasonable
expenses incurred in making the motion, including attorney’s fees.” Cooper appears pro se, so
he has not incurred any attorney fees. Due to this court’s e-filing program, he did not pay for

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postage. Perhaps he paid for a few dozen sheets of paper, although Wisconsin institutions
sometimes provide paper for free. In any event, because Cooper has not identified any expenses
incurred, I will deny his motion for sanctions as moot.
Finally, Cooper recently filed a second motion to compel, indicating that he sent
additional discovery requests to defendants on January 10 and that defendants refused to
respond to the requests because discovery closed on January 19. Dkt. 165. In response to
Cooper’s request, defendants double-down on their objection. They argue that Cooper “was
required to propound discovery requests to defense counsel more than 30 days prior to the
discovery deadline in this case to allow defendants the time they are entitled to respond.” Dkt.
174, at 2. They cite no authority to support their argument, and I would not deny a motion to
compel discovery responses solely because the request was sent fewer than 30 days before the
cut off, at least not when the requesting party appears pro se: the court’s standard pretrial
conference order in pro se cases does not explicitly require discovery requests to be served 30
days before the close of discovery. See Dkt. 20, at 8. If timeliness was defendants’ only objection
to Cooper’s January 10 discovery requests, they should provide their responses to Cooper
within seven days of the date of this order. But Cooper does not explain what discovery he still
seeks from defendants, and without that information, I cannot grant a motion to compel, as I
have no way of determining whether the requested information falls within the scope of
discovery. See Fed. R. Civ. P. 26(b)(1). So I will deny Cooper’s second motion to compel
discovery. If defendants do not respond to Cooper’s requests, Cooper may renew his motion,
but he will have to explain what information he has requested from them.

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F. Motion concerning legal loan
Cooper asks the court for an order instructing the WCI Business Office to provide him
with copies of jury instructions that he has requested and offered to pay for with his legal loan,
as his request was previously denied as being beyond the bounds of the legal loan program.
Dkt. 176. Defendants have responded by indicating that their counsel has directed the WCI
Business Office to provide copies of the materials Cooper requested and any similar materials
he requests in the future, as these materials fall within the bounds of the legal loan program.
Dkt. 177. Defendants explain that Cooper need only “provide a concise explanation of what
materials he wants copied and where they are located.” Id. at 1. In reply, Cooper complains
that he did explain what copies he wanted and where the materials were and asks me to “issue
an order to . . . prevent so many hurdles in this case and award Cooper $5,000 as reasonable
expenses for obtaining this order.” Dkt. 178.
I will deny Cooper’s motion as moot. It appears that WCI officials now know what
materials may be copied with a legal loan, so an order compelling them to make copies is
unnecessary. The request that Cooper identify what materials he wants copied and where they
may be found is eminently reasonable; I cannot know without further information whether
Cooper’s first request was precise enough, nor does it matter. What matters is whether Cooper
is able to obtain copies of jury instructions and other trial preparation materials going forward,
and for now, it appears that he is.
G. Remaining motions
I will address the parties’ motions in limine, see Dkt. 139 and Dkt. 156, and Cooper’s
objections to defendants’ exhibits, see Dkt. 164 and Dkt. 167, at the final pretrial conference.

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ORDER
IT IS ORDERED that:
1. Plaintiff’s motion for assistance in recruiting counsel, Dkt. 143, is DENIED.
2. Plaintiff’s motion to strike affirmative defenses, Dkt. 164, is GRANTED as to
qualified immunity and discretionary immunity and DENIED as damages caused
by plaintiff’s actions.
3. Plaintiff’s request for a subpoena form, Dkt. 146, is DENIED.
4. Within seven days of the date of this order, defendants must attempt to assist
plaintiff in locating Dr. Desiree Grin.
5. Plaintiff’s petition for writs of habeas corpus ad testificandum, Dkt. 132, is
GRANTED.
6. Plaintiff’s motion to meet with incarcerated witnesses, Dkt. 148, is DENIED.
7. Plaintiff’s motions to compel discovery, Dkt. 152 and Dkt. 165, are DENIED.
8. Within seven days of the date of this order, defendants should provide their
responses to any of plaintiff’s discovery requests for which timeliness was their only
objection.
9. Plaintiff’s motion for sanctions, Dkt. 154, is DENIED as moot.
10. Plaintiff’s motion for an order regarding his legal loan, Dkt. 176, is DENIED as
moot.
11. The clerk of court is directed to issue writs of habeas corpus ad testificandum for the
attendance of plaintiff Demetrius Cooper and witnesses Remo Daniels, Jermaine
Smith Capoeira, Michael Ramos, Ryan Pruitt, and Deandrae Mayweathers at trial
beginning on April 30, 2018. Plaintiff and the witnesses should arrive at the
courthouse no later than 8 a.m.
Entered March 19, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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