Cooper, Demetrius et al v. McGowan, Allison et al

Filing 94

ORDER denying plaintiff's 58 , 60 motions to compel, denying plaintiff's 77 motion for default judgment; granting plaintiff's 81 motion to supplement his summary judgment motion; denying plaintiff's 86 motion to st rike affirmative defenses; denying defendants' 63 motion for partial summary judgment for failure to exhaust administrative remedies; denying plaintiff's 76 , 93 motions for sanctions; denying plaintiff's motion 35 for partial s ummary judgment; denying 87 plaintiff's motion for preliminary injunction; and denying plaintiff's 79 , 80 motions for assistance recruiting counsel. By May 29, 2018, defendants must explain whether plaintiff has adequate access to the law library or legal materials while in segregation. Plaintiff may file a response by June 8, 2018. Signed by District Judge James D. Peterson on 5/15/2018. (jef),(ps)

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

DEMETRIUS L. COOPER,
Plaintiff,
v.
ALLISON McGOWAN, KHRYSTYNA
ROSENAU,
PATRICK GORMAN, MICHAEL BRITTEN,
NATHAN SANCHEZ, TERANCE LASH, and
KYLE TRITT,

OPINION & ORDER
17-cv-383-jdp

Defendants.
Pro se plaintiff Demetrius L. Cooper is currently incarcerated at the Waupun
Correctional Institution (WCI). I previously 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. 9 and Dkt. 14. Several motions are before the court, including Cooper’s
motion for partial summary judgment and defendants’ motion for partial summary judgment
for failure to exhaust administrative remedies. Both summary judgment motions focus on
Cooper’s claims against defendant Kyle Tritt, a WCI captain who allegedly refused to provide
Cooper with an extra pillow necessary to treat Cooper’s gastroesophageal reflux disease. I will
begin by reciting the undisputed facts material to the summary judgment motions, which
provide a useful background to the remaining motions. I will deny all of the pending motions,
save one, for the reasons explained below.

UNDISPUTED FACTS
I begin by noting deficiencies in defendants’ summary judgment response. Defendants
purport to dispute some of Cooper’s proposed facts by stating that they have “not had an
opportunity to depose him regarding this allegation.” See, e.g., Dkt. 73, ¶ 36. Defendants had
an opportunity to conduct discovery before responding to Cooper’s summary judgment
motion; their failure to depose Cooper is not a valid basis to dispute a proposed fact. As
explained in the preliminary pretrial conference order, I “will conclude that a proposed fact is
undisputed unless the responding party explicitly disputes it and either identifies contradictory
evidence in the record, or demonstrates that the proponent of the fact does not have admissible
evidence to support it.” Dkt. 57, at 17. So any fact proposed by Cooper that is opposed only
on the basis that defendants have not deposed him will be deemed to be undisputed.
The following facts are undisputed except where noted.
Cooper has severe gastroesophageal reflux disease (GERD). His symptoms include chest
pain and vomiting. During his incarceration, he has been treating his symptoms with
prescription and over-the-counter medication. In December 2016, the WCI special needs
committee approved a “restriction” for an extra pillow so that Cooper could elevate his head
while in bed to treat his GERD. Dkt. 38-1, at 11, 12. Cooper says that he wanted the pillow
to prevent him from choking on his vomit at night, but there is no evidence that the special
needs committee approved the pillow for that specific purpose rather than to offer more general
relief from the symptoms of GERD. Cooper was given an extra pillow, which he kept in his
cell. His WCI paperwork reflected that he was to be allowed an extra pillow “to elevate head
of bed for GERD.” Dkt. 66-1, at 1.

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In May 2017, Cooper filed this lawsuit against several WCI officials, including
defendant WCI captain Kyle Tritt. In his complaint, he asserted claims concerning defendants’
alleged failure to respond appropriately to Cooper’s serious mental health needs.
On July 17, 2017, Cooper was transferred to disciplinary segregation. Tritt oversees
segregation at WCI. On July 19, Cooper wrote an “interview/information request” to Tritt with
the following message:
I need my pillow that was in my cell when I was packed up. I can
choke. I have a medical restriction. Also, why am I not receiving
my phone call I am allowed while on TLU? There were no phone
list for today, I should have received my phone call.
Dkt. 38-1, at 15. The note was stamped as “received” on July 20. At some point, Tritt
responded “I will look into it.” Id. He didn’t date his response, and at this point he doesn’t
remember when he wrote it.
On July 20, Cooper filed a grievance explaining that he was “approved a pillow for [his]
medical needs” but had “been refused [a] pillow” upon transfer to segregation and that Tritt
had “ignored” Cooper’s written request for a pillow. Dkt. 67-2, at 8. The institution complaint
examiner received Cooper’s grievance on July 24 and rejected it as moot two days later,
explaining, “Capt Tritt stated that he did not get a request regarding the pillow until 7.25.17
and stated inmate was given an extra blanket in place of the extra pillow with the approval of
HSU.” Id. at 2. Two days after that, Cooper appealed the rejection to Brian Foster, the WCI
warden, arguing that the issue was “not moot” because he still hadn’t received a pillow or
blanket. Id. at 10. Foster received the appeal on July 31 and issued a decision on August 4,
confirming that the rejection was appropriate.
Meanwhile, according to Cooper, he asked Tritt why Tritt lied about giving Cooper an
extra blanket or pillow; Tritt responded, “whether it’s for your medical needs or not, I will not

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provide you either. You should have thought of that before you filed a lawsuit on me.” Dkt.
38, ¶ 29. According to Tritt, he never said anything to that effect, nor did he lie about the extra
blanket—he does not remember what happened, but he believes that he “would have” reported
to the institution complaint examiner what he was told by other WCI staff in segregation. Dkt.
66, ¶ 15.
On August 5, Cooper contacted the HSU, complaining of chest pain. He explained that
he didn’t have an extra pillow in his cell, that he was vomiting at night, and that he was
concerned he would choke. HSU staff “reassured” him. Dkt. 38-1, at 25.
On August 6, Cooper wrote another interview/information request to Tritt, which
included the following message:
I still never received my pillow or extra blanket that you told the
ICE dept you already gave me. I’m at risk to choke. When do you
think I’m going to get it?
Id. at 21. Tritt responded, “You should have received it now.” Id. Again, the response is
undated.
Also on August 6, Cooper filed another grievance, complaining that Tritt was
“retaliating against [Cooper] because [Cooper] filed a lawsuit.” Id. at 22. In the grievance,
Cooper accused Tritt of lying to the institution complaint examiner about when he received
and responded to Cooper’s July 19 interview/information request (Cooper said Tritt responded
on July 20) and about giving an extra blanket to Cooper (Cooper said he still didn’t have an
extra blanket or pillow). On August 9, the institution complaint examiner refused to accept the
grievance, stating, “I talked with Capt Tritt and he verified that you were given a blanket on
8/7. If this is not true let me know.” Id. at 23. According to Cooper, Tritt didn’t give him a
blanket on August 7; again, Tritt says that he doesn’t remember what happened, that he didn’t

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personally give Cooper a blanket, but that he “would have” reported to the institution
complaint examiner what he was told by other WCI staff in segregation. Dkt. 66, ¶ 19.
The night of Saturday, August 19, Cooper “vomit[ed] acid and blood on [his] shirt and
blanket.” Dkt. 38, ¶ 35. He believes that this was the result of not having an extra pillow. Nurse
Vick, a member of the HSU, noted that Cooper was to receive a “clean shirt” from “security,”
Dkt. 38-1, at 26, but he was not provided with clean clothes until Tuesday or with clean
bedding until the following Saturday, in accordance with segregation policy. (Tritt says that
segregation policy “does not in any way prevent inmates from receiving clean linens or receiving
showers if circumstances warrant it,” Dkt. 66, ¶ 21, but he does not dispute when Cooper
received clean linens or clothing.)
The same night, Cooper wrote an interview/information request to Vick, stating,
Nurse Vick, tonight you came to my cell and as you can see, I do
not have the pillow per my medical restriction. Nor do I have any
extra blanket as an alternative. As a result I continue to vomit and
have to sleep in it because they refuse to give me a change of
clothes. Although you stated you would ask them to provide me
a change of clothes after seeing the vomit and blood they still
refused. Is there something you can do to force them to honor my
medical pillow?
Dkt. 38-1, at 27. On August 21, Vick responded by sending Cooper a copy of a standard memo
concerning requests for new pillows or mattresses, which read,
We have been notified that you are requesting a new pillow or
mattress. If you feel that your pillow or mattress needs replacing
then please notify your cell hall officers or sergeant. If extras are
available and your need deemed appropriate, they will coordinate
the exchange. HSU has nothing to do with getting pillows and
mattresses exchanged or handed out. HSU only places the special
needs for extra pillows if deemed medically necessary by the
special needs committee or a medical provider.
Id. at 28.

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In the early morning of August 28, Cooper experienced chest pain and vomiting again,
and was seen by Vick. Again, he was not allowed to change his clothes or bedding right away.
The night of September 10, Cooper was seen by Vick for chest pain and shortness of
breath. Vick noted that Cooper was “upset [that he didn’t] have pillow that [he] has restriction
for.” Id. at 26. Vick advised him to “complain up chain of command.” Id.
On September 15, Cooper was released from segregation, having never obtained an
extra pillow or blanket.

ANALYSIS
A. Cooper’s motion to compel copies of medical records
In September 2017, Cooper indicated that WCI officials would not let him use his legal
loan to make copies of part of his medical record. Defendants’ counsel instructed the WCI
official in charge of the legal loan program to provide copies of the medical records Cooper
requested and any other records he requested in the future, so I determined that a court order
compelling access to the records was unnecessary. See Dkt. 44, at 3–4.
Now, Cooper has filed another motion to compel, contending that WCI officials are
still barring him from using his legal loan to make copies of his medical record. Dkt. 58. Cooper
is seeking to compel WCI officials to make copies using his legal loan, not to compel
defendants’ discovery responses, so I will construe his motion as one raising an access-to-thecourts issue. As I previously explained, Cooper has a right to meaningful access to the courts,
including the ability to acquire copies of important exhibits. See Dkt. 20, at 3–4 (citing Bounds
v. Smith, 430 U.S. 817, 823–25 (1977)).

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Cooper points to evidence that he asked defendants to produce “PSU (psych) notes,
progress notes while in observation,” but defendants refused, objecting that the request was
too vague. Dkt. 59-1, at 1. Defendants’ counsel noted that Cooper could review and copy his
psychological records on his own. So Cooper submitted a request for copies of two pages, to be
paid for with legal loan funds. He noted that the reason for the request was “Case No. 17-cv383, Western District.” Dkt. 59-2. But his request was denied with the following explanation:
“Not allowed without proof of need from court.” Id. When Cooper objected, another WCI
official explained to him,
[Y]ou may not obtain copies of your [medical] files without
showing proof of need from the courts. This is clearly listed in the
legal loan policy 309.51.01. . . . Until you are able to provide a
court document stating that you must obtain copies from your
PSU record all request will be denied . . . .
Dkt. 59-5. The explanation Cooper received is supported by the legal loan policy, which states:
Inmates may not use legal loan funds for copies of documents in
their Health Care Records, except when an inmate can
demonstrate a clear need for the records for the litigation for
which the loan has been approved.
Dkt. 24-1, at 6.
It’s unclear from these explanations exactly what constitutes sufficient proof of “clear
need.” Requiring a court order commanding WCI officials to make copies of the medical record
would be unreasonable. But defendants explain that to meet the “clear need” requirement,
Cooper need only submit a copy of the screening order for this case with his request for copies.
The screening order makes clear that Cooper’s claims concern mental health issues. I
sympathize with Cooper’s frustration, but it appears that Cooper may obtain copies of the
records he seeks if he follows the proper procedure. Defendants’ counsel indicates that Cooper
may also obtain the records from counsel if he narrows his request—I agree that his original

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request was too vague to allow for a response. Because it appears that Cooper has reasonable
access to copies of his medical records, at least going forward, I will deny his motion to compel.
And as there is no indication that Cooper needs copies of his psychological records to support
or respond to any of the motions currently pending before the court, I will not delay my
consideration of the remaining motions.
B. Cooper’s motion to compel defendants’ discovery responses
Cooper has also moved to compel defendants’ responses to his discovery requests. Dkt.
60. Before turning to the discovery requests, I begin with Cooper’s “motion for default
judgment,” in which he asks that I grant his motion to compel because defendants failed to
respond by the deadline. Dkt. 77. An entry of default is made only “[w]hen a party against
whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed.
R. Civ. P. 55(a). Defendants are vigorously defending Cooper’s claims in this suit, so default
judgment would be inappropriate. If a party fails to respond to a motion by the deadline
established by the court, it is sometimes appropriate to grant the motion as unopposed. But
here, defendants did respond by the deadline. See Dkt. 70. So I will deny Cooper’s motion for
default judgment and address Cooper’s motion to compel.
Three specific requests are at issue. First, Cooper contends that Tritt failed to respond
to his first set of requests for admission. Defendants’ counsel states in a declaration that he
never received this first set of requests. Cooper points to evidence that he purchased a stamp
to mail the requests to defendants’ counsel, but that doesn’t prove that counsel actually
received the requests. Regardless, counsel has since sent Cooper Tritt’s responses to Cooper’s
requests for admission, so there’s no need to compel a response. Cooper asks for leave to
supplement his summary judgment motion with these responses. Dkt. 81. I will grant him leave

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to do so, and I will consider these responses when deciding Cooper’s summary judgment
motion.
Second, Cooper contends that when responding to Cooper’s first set of interrogatories,
Tritt lied in response to interrogatories no. 8 and 9 and “did not respond” to interrogatories
no. 1 and 7. Dkt. 60, at 2. Beginning with interrogatories no. 8 and 9, Cooper can argue in his
summary judgment briefing or at trial that Tritt is lying, but I will not compel Tritt to respond
to Cooper’s interrogatories in a certain way. As for interrogatories no. 1 and 7, Tritt did
respond. See Dkt. 62, at 2, 4. Tritt acknowledges that the response to interrogatory no. 1 is
incomplete and states that he will send Cooper a supplemental response, so there is no need
for me to compel him to respond to interrogatory no. 1 at this point. But Tritt stands by his
answer to interrogatory no. 7, which states:
As attached as Exhibit 15 to Cooper’s motion for Summary
Judgment, isn’t true that Cooper contacted you on 7-19-17
informing you he was at risk to choke and in need of his pillow
authorized by health services?
RESPONSE: Cooper did write a request dated July 19, 2017
stating he did not have a pillow.
Dkt. 62, at 4. Cooper complains that Tritt did not respond to the portion of the interrogatory
concerning the risk of choking. That’s true, but it is clear from the context of the question that
Tritt admits in his response that Cooper wrote the July 19 interview/information request, which
states in relevant part, “I need my pillow that was in my cell when I was packed up. I can
choke.” Dkt. 38-1, at 15. There is no need to compel Tritt to supplement his response to
address the risk of choking, specifically—Tritt admits that Cooper wrote the note, and the
contents of the note speak for themselves. So I will not compel Tritt to respond to this
interrogatory, either.

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Third, Cooper moves to compel defendants’ responses to three requests for production
of documents. But Cooper did not attempt to raise his concerns about these responses with
defendants’ counsel before filing his motion, as he is required to do under Federal Rule of Civil
Procedure 33(a)(1). Defendants’ counsel indicates that he will respond to Cooper’s concerns.
If Cooper continues to believe defendants’ responses are incomplete, he may file another
motion to compel at that time. I will deny Cooper’s current motion to compel defendants’
discovery responses.
C. Cooper’s motion to strike affirmative defenses
Cooper moves to strike three affirmative defenses in defendants’ answer: failure to
exhaust, qualified immunity, and sovereign immunity. Dkt. 86. Generally, motions to strike
are disfavored because they potentially serve only to delay. Heller Fin., Inc. v. Midwhey Powder
Co., 883 F.2d 1286, 1294 (7th Cir. 1989). As the moving party, Cooper has the burden to
show “that the ‘challenged allegations are so unrelated to plaintiff’s claim as to be devoid of
merit, unworthy of consideration, and unduly prejudicial.’” Kaufman v. McCaughtry, No. 03-cv27, 2003 WL 23095690, at *1 (W.D. Wis. May 22, 2003) (quoting Carroll v. Chi. Transit
Auth., No. 01-cv-8300, 2002 WL 206064, at *1 (N.D. Ill. Feb. 8, 2002)). A motion to strike
should “not be granted unless it appears to a certainty that plaintiffs would succeed despite
any state of the facts which could be proved in support of the defense.” Williams v. Jader Fuel
Co., 944 F.2d 1388, 1400 (7th Cir. 1991) (quoting Glenside West Corp. v. Exxon Co., 761 F.
Supp. 1100, 1115 (D.N.J. 1991)). Cooper has not met his burden, so I will deny his motion.
This does not mean that these affirmative defenses are meritorious; it only means that
defendants are not barred from raising these defenses during the litigation.

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D. Defendants’ exhaustion motion
Defendants move for partial summary judgment, contending that Cooper failed to
exhaust his administrative remedies concerning Tritt’s alleged refusal to provide a second pillow
to Cooper when Cooper was transferred to segregation in July and August 2017. Dkt. 63.
Under the Prison Litigation Reform Act, “[n]o action shall be brought with respect to
prison conditions under section 1983 . . . by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.” 42
U.S.C. § 1997e(a). To satisfy the exhaustion requirement, a prisoner must “properly take each
step within the administrative process,” which includes filing grievances and appeals “in the
place, and at the time, the prison’s administrative rules require.” Pozo v. McCaughtry, 286 F.3d
1022, 1024, 1025 (7th Cir. 2002). The State of Wisconsin requires prisoners to file a grievance
within 14 calendar days after the occurrence giving rise to the complaint. Wis. Admin. Code §
DOC 310.09(6).1 Prisoners must appeal a rejected grievance within 10 calendar days of the
rejection. § DOC 310.11(6). The exhaustion requirement is mandatory, Woodford v. Ngo, 548
U.S. 81, 85 (2006), and failure to exhaust requires dismissal of a prisoner’s case. Perez v.
Wisconsin Dep’t of Corr., 182 F.3d 532, 535 (7th Cir. 1999). “[A] grievance suffices if it alerts
the prison to the nature of the wrong for which redress is sought.” Strong v. David, 297 F.3d
646, 650 (7th Cir. 2002). Because exhaustion is an affirmative defense, defendants bear the
burden of establishing that Cooper failed to exhaust his available remedies. Jones v. Bock, 549
U.S. 199, 216 (2007). At the summary judgment stage, they must show that there is no genuine

1

A new version of Chapter DOC 310 went into effect on April 1, 2018. All citations are to the
prior version of the administrative code, which was in effect at the time Cooper pursued
administrative remedies.

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dispute of material fact and that they are entitled to judgment as a matter of law. Fed. R. Civ.
P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
Cooper filed a grievance about Tritt’s refusal to supply him with an extra pillow. The
grievance was rejected as moot. Cooper timely appealed the rejection as required by
Wisconsin’s administrative code. A grievance rejected on procedural grounds usually does not
properly exhaust administrative remedies. But here, Cooper’s grievance was rejected on the
merits. Cooper did all he could to exhaust his administrative remedies. Thus, defendants have
not established that he failed to exhaust his available remedies concerning his claims against
Tritt based on Tritt’s alleged refusal to give Cooper an extra pillow in segregation.
Defendants focus on a separate grievance that Cooper attempted to file on August 6. In
the second grievance, Cooper accused Tritt of retaliating against him by lying to the institution
complaint examiner about giving him a blanket; he also reiterated that he still didn’t have an
extra pillow or blanket. See Dkt. 67-3, at 2–3. The institution complaint examiner refused to
accept this second grievance, stating, “I talked with Capt Tritt and he verified that you were
given a blanket on 8/7. If this is not true let me know.” Id. at 1. According to defendants,
Cooper should have followed up with the institution complaint examiner; he failed to do so,
and therefore he did not exhaust his administrative remedies. Cooper says that he did follow
up with the institution complaint examiner, but she never responded. Defendants concede that
this raises a factual dispute and “request that their exhaustion motion be denied without
prejudice to refiling at the dispositive motion deadline.” Dkt. 82, at 2. But the factual dispute
is immaterial; Cooper properly exhausted his administrative remedies with his first grievance,
so the outcome of the second grievance simply doesn’t matter. I will deny defendants’ motion
for partial summary judgment.

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Cooper argues that defendants have raised the factual dispute concerning the second
grievance as a red herring in hopes of distracting attention from a frivolous motion. He moves
for sanctions under Rule 11. Dkt. 76. Defendants’ motion certainly was not meritorious, nor
was it especially well thought-out. But “[a] court should not impose sanctions on a party that
loses an argument, as long as the argument was not entirely groundless.” Philos Techs., Inc. v.
Philos & D, 802 F.3d 905, 917 (7th Cir. 2015). Here, defendants focused on an unaccepted
grievance that they believed Cooper failed to follow up on. Their argument, while ultimately
unpersuasive, was not entirely groundless. And once defendants learned of the factual dispute,
they conceded that their motion should be denied. Thus, Rule 11 sanctions are not warranted.
Cooper also contends that sanctions are warranted because defendants lied in their
filings. Dkt. 76 and Dkt. 93. First, he argues that Tritt lied about being unaware of Cooper’s
risk of choking. Cooper takes Tritt’s statement that Tritt was unware of the risk of choking to
mean that Tritt claims Cooper never told Tritt that Cooper could choke. But Tritt does not
dispute that Cooper told him about the choking; he disputes believing Cooper. It’s not for me,
or Cooper, to say that Tritt is lying about his subjective belief. Second, Cooper argues that
defendants lied about whether Cooper’s extra pillow was supposed to follow him to segregation.
Defendants’ explanation of what was “supposed” to happen with the extra pillow has shifted
over the course of the litigation—in February, they “disputed that the pillow actually should
have followed him to [segregation, as] the Special Housing Summary states the extra pillow
does not travel with inmate.” Dkt. 65, ¶ 41. But by April, they reversed course and argued that
WCI “staff are already trained that when an inmate with a medical restriction for an extra
pillow is placed in [segregation], the pillow is routed directly to [segregation].” Dkt. 88, at 4.
This apparent inconsistency doesn’t help defendants’ case, but each contention is supported

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by some evidence, so Rule 11 sanctions are not warranted. I will deny Cooper’s motions for
sanctions.
E. Cooper’s partial summary judgment motion
Finally, Cooper moves for summary judgment on his claims against Tritt concerning
Tritt’s refusal to provide him with an extra pillow when Cooper was transferred to segregation
in July 2017. Dkt. 35. As noted above, summary judgment in Cooper’s favor is proper if he
establishes that there is no genuine dispute of material fact and that he is entitled to judgment
as a matter of law.
I begin with Cooper’s deliberate indifference claim. Cooper contends that Tritt’s failure
to supply him with an extra pillow (or an adequate substitute) violated his Eighth Amendment
right to be free from cruel and unusual punishment. To prevail on this claim, Cooper must
show that he has a serious medical need, that Tritt was aware of that need, and that Tritt was
deliberately indifferent to it. Petties v. Carter, 836 F.3d 722, 728 (7th Cir. 2016). Tritt concedes
that GERD is a serious medical condition. He argues that Cooper didn’t have a serious medical
need for an extra pillow, but the evidence shows that the special needs committee allowed him
an extra pillow because it was “medically necessary.” Dkt. 38-1, at 28. WCI paperwork notes
that Cooper was allowed an extra pillow to treat his GERD, Cooper told Tritt that fact in his
very first interview/information request to Tritt, and Tritt never questioned whether Cooper
actually needed the extra pillow, so no reasonable juror could find that Tritt was not aware of
Cooper’s serious medical need.
But Tritt has pointed to evidence sufficient to raise a genuine dispute about whether he
was aware that Cooper’s serious medical need was going unmet. Viewing the evidence in the
light most favorable to Tritt, here’s what happened: Around July 25, Tritt received a note from

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Cooper asking for an extra pillow. Around the same time, the institution complaint examiner
asked Tritt whether Cooper had been supplied an extra pillow. Tritt talked to a WCI staff
member, believed that an extra blanket had been given to Cooper, and told the institution
complaint examiner the same thing. On August 6 or 7, Tritt received a second note from
Cooper and learned that Cooper never got the extra blanket. He tried to fix the mistake by
instructing another WCI staff member to give an extra blanket to Cooper on August 7. On
August 9, when the institution complaint examiner followed up with him, he explained that
Cooper got the extra blanket on August 7. Unbeknownst to him, Cooper still didn’t have the
blanket. In sum, Tritt tried to promptly address Cooper’s medical need and, when he learned
that the need hadn’t been addressed, he promptly attempted to rectify the problem. It turns
out that he didn’t succeed, but he didn’t know that. Thus, a reasonable juror could find that
Tritt was not deliberately indifferent to Cooper’s serious medical need. See Petties, 836 F.3d at
728 (“even objective recklessness—failing to act in the face of an unjustifiably high risk that is
so obvious that it should be known—is insufficient to make out a claim [of deliberate
indifference].”). To be clear, a reasonable jury could also believe Cooper’s version of the events.
But because material facts are in dispute, I will deny Cooper’s motion for summary judgment
on his deliberate indifference claim.
The same factual disputes preclude entry of summary judgment on Cooper’s remaining
claims. Cooper’s conditions-of-confinement claim also requires proof of deliberate indifference.
See Rice ex rel. Rice v. Corr. Med. Servs., 675 F.3d 650, 664–64 (7th Cir. 2012). And to prevail
on his First Amendment retaliation claim, Cooper must prove, among other things, that Tritt’s
harmful actions were motivated by Cooper’s filing of this lawsuit. See Massey v. Johnson, 457
F.3d 711, 716 (7th Cir. 2006). Under Tritt’s version of the events, he meant Cooper no harm;

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his only motivation was to ensure that Cooper received an extra pillow or blanket. So I will
deny Cooper’s motion for partial summary judgment.
F. Cooper’s motion for a preliminary injunction
Cooper moves for a preliminary injunction requiring WCI officials to allow him to take
medically necessary items, such as an extra pillow, with him to segregation. Dkt. 87. As I have
previously explained to Cooper, to obtain a preliminary injunction, Cooper must clearly show
that (1) he will suffer irreparable harm before the final resolution of his claim without a
preliminary injunction; (2) traditional legal remedies are inadequate; and (3) his claims have
some likelihood of success on the merits. Dkt. 44, at 2.
Cooper’s claims have some likelihood of success on the merits, but Cooper has not
demonstrated that he will suffer irreparable harm without a preliminary injunction. Cooper
says he needs an extra pillow to prevent him from choking. It’s true that choking, with its
attendant risk of death, would qualify as irreparable harm. But there’s no medical evidence
that an extra pillow truly prevents Cooper from choking, rather than merely helping reduce
Cooper’s GERD symptoms so that Cooper may sleep more comfortably. Because Cooper hasn’t
shown that he’s at risk of choking or that an extra pillow alleviates that risk, I will deny
Cooper’s motion for a preliminary injunction.
G. Cooper’s motions for assistance in recruiting counsel
On March 14 and 15, Cooper sent two letters to the court asking for assistance
recruiting counsel. Dkt. 79 and Dkt. 80. As I have previously explained to Cooper, this court
generally requires a pro se plaintiff to demonstrate that his is one of those relatively few cases
in which it appears from the record that the legal and factually difficulty of the case exceeds
his demonstrated ability to prosecute it. See Dkt. 9, at 7. Cooper contends that he needs a

16

lawyer because of his difficulties in conducting discovery, as evidenced by his motions to
compel. But Cooper has shown that he is capable of conducting discovery. He doesn’t need a
lawyer to follow WCI’s policy for obtaining copies of medical records with a legal loan, for
example. So I will deny his motion without prejudice to his renewing it later on.
Cooper also complains in his letters that he has been sent to segregation, where he is
only able to access the law library one hour per week. He also complains that the law library’s
computers have broken and that “the books are missing 90% of the pages.” Dkt. 79. These are
not reasons to recruit counsel, but they do raise questions about whether Cooper’s right of
access to the courts is being infringed. As the U.S. Supreme Court has explained, “the
fundamental constitutional right of access to courts requires prison authorities to assist inmates
in preparation and filing of meaningful legal papers by providing prisoners with adequate law
libraries or adequate assistance from persons trained in the law.” Bounds, 430 U.S. at 828. So
I will instruct defendants to explain whether Cooper has adequate access to the law library or
legal materials while in segregation. I will allow Cooper the opportunity to reply to defendants’
response.

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ORDER
IT IS ORDERED that:
1. Plaintiff’s motions to compel, Dkt. 58 and Dkt. 60, are DENIED.
2. Plaintiff’s motion for default judgment, Dkt. 77, is DENIED.
3. Plaintiff’s motion to supplement his summary judgment motion, Dkt. 81, is
GRANTED.
4. Plaintiff’s motion to strike affirmative defenses, Dkt. 86, is DENIED.
5. Defendants’ motion for partial summary judgment for failure to exhaust
administrative remedies, Dkt. 63, is DENIED.
6. Plaintiff’s motions for sanctions, Dkt. 76 and Dkt. 93, are DENIED.
7. Plaintiff’s motion for partial summary judgment, Dkt. 35, is DENIED.
8. Plaintiff Demetrius L. Cooper’s motion for preliminary injunction, Dkt. 87, is
DENIED.
9. Plaintiff’s motions for assistance recruiting counsel, Dkt. 79 and Dkt. 80, are
DENIED.
10. By May 29, 2018, defendants must explain whether plaintiff has adequate access to
the law library or legal materials while in segregation. Plaintiff may file a response
by June 8, 2018.
Entered May 15, 2018.
BY THE COURT:
/s/
________________________________________
JAMES D. PETERSON
District Judge

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