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Cooper v. McGowan

United States District Court, W.D. Wisconsin

May 15, 2018


          OPINION & ORDER


         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.


         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.

         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 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 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 ...

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