United States District Court, W.D. Wisconsin
OPINION AND ORDER
D. PETERSON DISTRICT JUDGE
plaintiff Demetrius Cooper is incarcerated at Wisconsin
Secure Program Facility (WSPF). He is proceeding on Eighth
Amendment medical care, failure-to-protect, and
conditions-of-confinement claims, First Amendment retaliation
claims, and state-law negligence claims against various WSPF
officials. He says the officials failed to respond adequately
to his physical and mental health needs, subjected him to
unconstitutional conditions of confinement, and retaliated
against him for filing a grievance. There are six motions
currently before me: a motion for leave to file an amended
complaint, Dkt. 16; two motions seeking preliminary
injunctive relief, Dkt. 10 and Dkt. 13; a motion for
sanctions, Dkt. 26 and Dkt. 31; a motion to strike
defendants' affirmative defenses, Dkt. 40; and a motion
asking the court to strike his deposition and recruit counsel
for him, Dkt. 49. (Cooper recently filed two additional
motions related to discovery, Dkt. 50 and Dkt. 51, which are
not yet fully briefed.)
reasons explained below, I will grant Cooper's motion to
amend his complaint. I will grant his motion to strike
defendants' affirmative defenses in part. His remaining
motions will be denied.
Motion for leave to amend
seeks to amend his complaint to add additional claims against
defendant Heather Schwenn, a WSPF psychologist. Cooper says
that while he was in clinical observation on April 15, 2019,
Schwenn refused to give him an extra pillow, even though she
knew that Cooper is authorized to have an extra pillow as
treatment for his gastroesophageal reflux disease (GERD).
Cooper says that going without the extra pillow caused him to
“vomit and choke severely for three days.” Dkt.
16, ¶ 14. Schwenn also refused to give Cooper a blanket,
even though the temperature was so cold that Cooper
“could not stop shaking from the ice cold air.”
Id. ¶ 9. Cooper says that when he asked Schwenn
why she was giving other inmates blankets but not him,
Schwenn told him that she “do[esn't] give property
to people who ha[ve] lawsuits against [her].”
Id. ¶ 10.
asks for leave to proceed on an additional First Amendment
claim against Schwenn “because her action[s] were in
retribution for this lawsuit.” Id. ¶ 15.
He also seeks to add an Eighth Amendment medical care claim
based on Schwenn's denial of the medically necessary
extra pillow, and an Eighth Amendment
conditions-of-confinement claim based on Schwenn's denial
of the blanket.
Federal Rule of Civil Procedure 15(a)(2), courts should
freely give plaintiffs leave to amend their complaints when
justice so requires. It is still relatively early in the
case, and the claims that Cooper seeks to add are closely
related to the claims on which I have already granted him
leave to proceed. And his allegations state viable claims
under the First and Eighth Amendments.
states a First Amendment claim because he alleges that he
engaged in protected activity (filing this lawsuit) and
suffered a deprivation that would likely deter that activity
in the future as a result (denial of a blanket and an extra
pillow). See Bridges v. Gilbert, 557 F.3d 541, 546
(7th Cir. 2009) (discussing the elements of a First Amendment
retaliation claim). Typically I would not permit a prisoner
to add new claims based on an allegation that he has been
retaliated against for filing the underlying lawsuit.
See, e.g., Atkinson v. Mackinnon, No.
14-cv-736-bbc, 2015 WL 13658057, at *1-2 (W.D. Wis. Oct. 29,
2015) (“These types of retaliation claims risk delaying
resolution of the case indefinitely while the parties
litigate and conduct discovery on each discrete instance of
retaliation that may occur while the lawsuit
progresses.”). But I will make an exception here,
because it is still early in the case and because the
incident at issue is closely related to the existing claims.
also states additional claims against Schwenn based on the
April 15, 2019 incident under the Eighth Amendment standards
I explained in my earlier screening order. His allegation
that Schwenn refused to give him a blanket states a
conditions-of-confinement claim because Cooper says he was
subjected to dangerously cold temperatures as a result, and I
can infer that Schwenn was aware of those temperatures. And
his allegation that Schwenn refused to give him an extra
pillow states a medical care claim because I can infer at
screening that Cooper's GERD was a serious medical need,
that Schwenn was aware of that need, and that she consciously
disregarded that need when she refused to give him the extra
grant Cooper's motion and allow him to proceed on three
additional claims against Schwenn. I will consider Dkt. 1 and
Dkt. 16 to be the operative complaint.
Motions for injunctive relief
has filed two motions seeking immediate intervention by the
court. See Dkt. 10 and Dkt. 13. In the first motion,
Cooper asked me to order Schwenn to (1) provide
“adequate bedding, clothing, hygiene while in clinical
observation”; (2) “stop falsifying Cooper's
health records”; and (3) have “no further
interactions with Cooper.” Dkt. 10, at 1. In the second
motion, he asked me to “force WSPF to issue . . .
inmates a blanket while in clinical observation” to
combat the freezing temperatures. Dkt. 13, at 2. In my
earlier screening order, I denied Cooper's request for an
order directing Schwenn to “stop falsifying
Cooper's health records” and have “no further
interactions with Cooper, ” because Cooper failed to
provide specific facts that supported his need for such
relief. Dkt. 14, at 15. But I ordered defendants to respond
to Cooper's allegation that he was not being provided
with hygienic necessities and was enduring freezing
temperatures while in clinical observation. I asked them to
provide an account of what items Cooper is permitted to
retain in clinical observation and, if blankets, clothing,
and hygiene items are disallowed, an explanation why.
have filed a response. Dkt. 20. In it, they summarize the
institution's policies governing what property items an
inmate may have while in clinical observation. Generally,
inmates in clinical observation receive suicide-resistant
clothing (typically a smock or gown), a security mat, bar or
liquid soap, a washcloth, bag meals, toilet paper, health
service request and psychological service request forms, and
a crayon. Cooper didn't identify the dates of the
clinical observation stays in question in his original
motions, but defendants infer from exhibits Cooper attached
to his motions that he was complaining about conditions
during his March and June 2019 observation stays.
See Dkt. 20, at 3 (citing Dkt. 11-1, at 9 and Dkt.
13-3, at 1). Defendants say that Cooper received the property
items that were permitted under the clinical observation
property policy in March and June of 2019, including a
washcloth, soap, and toilet paper.
does not deny this in his reply brief. Instead, he says that
he was denied hygiene items during other stints in clinical
observations in November 2018, December 2018, and April of
2019. (I have already granted Cooper leave to proceed on a
conditions-of-confinement claim based on the December 2018
hygiene-item-denial incident. See Dkt. 14, at
11-12.) Because Cooper did not specifically identify the
dates associated with the allegations he made in his original
motions, defendants did not have an opportunity to respond to
these new, date-specific ...