Cooper, Demetrius et al v. McGowan, Allison et al
ORDER denying 47 Motion for Reconsideration ; denying 49 Motion for Reconsideration ; denying 50 Motion for Entry of Default. 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
DEMETRIUS L. COOPER,
ALLISON McGOWAN, KHRYSTYNA
PATRICK GORMAN, MICHAEL BRITTEN,
NATHAN SANCHEZ, TERANCE LASH, and
OPINION & ORDER
Several motions are pending in this pro se prisoner suit. Plaintiff Demetrius L. Cooper
is currently incarcerated at the Waupun Correctional Institution (WCI). On September 19,
2017, I granted him leave to proceed on deliberate indifference, conditions-of-confinement,
and retaliation claims against defendant WCI officials concerning their refusal to place Cooper
in clinical observation status and subsequent retaliatory acts. Dkt. 20. I also denied Cooper’s
motion for appointment of a special expert. Less than a month later, Cooper moved for
summary judgment against defendant Kyle Tritt. Dkt. 35. Defendants moved to stay briefing
on the motion, pointing out that otherwise, their opposition brief would be due four days
before their answer. Dkt. 45. Magistrate Judge Stephen Crocker granted defendants’ motion,
staying briefing on the summary judgment motion until a new briefing schedule can be set at
the preliminary pretrial conference. Dkt. 46.
I have amended the caption to reflect defendants’ full names.
Now, Cooper asks me to review the magistrate judge’s order. Dkt. 47. He contends that
he will be unfairly prejudiced by a stay because he won’t be able to receive the help of a
jailhouse lawyer. He explains that this jailhouse lawyer is in high demand and must be booked
in advance. I infer that Cooper booked the jailhouse lawyer’s help for a November 27 reply
date and that he is concerned that the jailhouse lawyer may not be available for another reply
date. But if Cooper needs additional time to prepare his reply brief, he may request an
extension from the court. There is no need to barrel forward with the summary judgment
motion while defendants are still in the early stages of formulating their defense.
Cooper contends that the fact that defendants have not yet answered the complaint
doesn’t matter, citing Electro-Catheter Corp. v. Surgical Specialties Instrument Co., 587 F. Supp.
1446 (D.N.J. 1984). Decisions from the U.S. District Court for the District of New Jersey—
indeed, decisions from any district court, including this one—are not binding on this court.
And regardless, Electro-Catheter merely held that a summary judgment motion filed before the
defendant answered the amended complaint was timely and therefore could be addressed on
the merits. Id. at 1456. I agree that Cooper’s summary judgment motion is timely and can be
addressed on the merits. The question is simply whether it should be briefed now or later.
Because the case is still in the very early stages of litigation and the potential prejudice to
defendants outweighs the potential prejudice to Cooper, a short stay is appropriate.
Cooper also asks me to reconsider my order denying his motion for a special expert.
Dkt. 49. In his original motion, Cooper asked me to appoint an expert on deliberate
indifference. Dkt. 16. I denied his motion because it was very early in the litigation and because
deliberate indifference is often not a topic on which expert testimony is required. Now, Cooper
points to his summary judgment motion and argues that he needs a gastroenterologist to
“address the medical issues” in the case. Dkt. 49, at 2. I will deny Cooper’s motion. It remains
very early in the litigation; discovery has not yet commenced, and Cooper’s case still may not
survive a motion to dismiss or a motion for summary judgment based on a statute of limitations
or exhaustion of administrative remedies. And Cooper does not explain why an expert would
be useful to him now that his summary judgment motion is already filed. So I will deny his
motion for an expert.
Finally, Cooper moves for entry of default against defendants. Dkt. 50. 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 answered Cooper’s complaint, see Dkt. 48, so default is
IT IS ORDERED that:
1. Plaintiff Demetrius L. Cooper’s motion for reconsideration of the order staying
summary judgment briefing, Dkt. 47, is DENIED.
2. Plaintiff’s motion for reconsideration of the order denying his motion for a
special expert, Dkt. 49, is DENIED.
3. Plaintiff’s motion for entry of default, Dkt. 50, is DENIED.
Entered December 4, 2017.
BY THE COURT:
JAMES D. PETERSON
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