United States District Court, W.D. Wisconsin
D. PETERSON DISTRICT JUDGE
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,
order addresses the several motions now pending before the
Recruitment of counsel
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.
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.
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
Motion to strike affirmative defenses
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.
Request for a subpoena form
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.
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.
Petition for writs of habeas corpus ad
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 ...