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Cooper v. Meyer

United States District Court, W.D. Wisconsin

December 4, 2017


          OPINION & ORDER


         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's requests.

         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. ...

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