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Cooper v. Roach

United States District Court, W.D. Wisconsin

November 1, 2019

DEMETRIUS COOPER, Plaintiff,
v.
BRITTANY ROACH, SANDRA McARDLE, MICHAEL KEMERLING, ALEXANDRIA LEIBERT, and HEATHER SCHWENN, Defendants.

          OPINION AND ORDER

          JAMES D. PETERSON DISTRICT JUDGE

         Pro se 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.)

         For the 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.

         A. Motion for leave to amend

         Cooper 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.

         Cooper 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.

         Under 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.

         Cooper 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.

         Cooper 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 pillow.

         I will 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.

         B. Motions for injunctive relief

         Cooper 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.

         Defendants 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.

         Cooper 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 ...


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