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Cooper v. Meyer

United States District Court, W.D. Wisconsin

March 19, 2018

DEMETRIUS COOPER, Plaintiff,
v.
JEFFREY MEYER, PATRICK GORMAN, and CORY SABISH, Defendants.

          ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         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 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 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 ...


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