United States District Court, W.D. Wisconsin
DEMETRIUS L. COOPER, Plaintiff,
ALLISON McGOWAN, KHRYSTYNA ROSENAU, PATRICK GORMAN, MICHAEL BRITTEN, NATHAN SANCHEZ, TERANCE LASH, and KYLE TRITT, Defendants.
OPINION & ORDER
D. PETERSON DISTRICT JUDGE
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
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
following facts are undisputed except where noted.
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.
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.
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
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.
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
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 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.
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.
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
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 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.
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
same night, Cooper wrote an interview/information request to
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 ...