Pyles v. Gaetz et al

Filing 14

ORDER REFERRING CASE to Magistrate Judge Stephen C. Williams. IT IS HEREBY ORDERED that COUNT 1 fails to state a claim upon which relief can be granted and thus is DISMISSED with prejudice. The Court lacks subject-matter jurisdiction over COUNT 2. COUNTS 3 and 4 shall receive further review. DEFENDANT GAETZ is dismissed from this action without prejudice to Plaintiff bringing a claim in state court. IT IS FURTHER ORDERED that as to the medical malpractice claim in COUNT 4 against Defendants FAHIM, Plaintiff shall file the required affidavits pursuant to 735 ILL. COMP. STAT. §5/2-622, within 35 days of the date of this order (see date certain above). Should Plaintiff fail to timely file the required affidavits, COUNT 4 shall be dis missed with prejudice. IT IS FURTHER ORDERED that the Clerk of Court shall prepare for Defendants FAHIM and WEXFORD HEALTH SERVICES: (1) Form 5 (Notice of a Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of Service of Summons). (Action due by 9/13/2012). Signed by Judge Michael J. Reagan on 8/9/2012. (tjk)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
CHRISTOPHER PYLES, # R-43795,
Plaintiff,

vs.
WARDEN GAETZ, DR. FAHIM, and
WEXFORD HEALTH SERVICES,
Defendants.

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Case No. 3:11-cv-378-MJR

MEMORANDUM AND ORDER
REAGAN, District Judge:
Plaintiff Christopher Pyles, an inmate in Menard Correctional Center
(“Menard”), brings this action for deprivations of his constitutional rights pursuant to 42
U.S.C. § 1983, based on incidents that occurred while Plaintiff was housed at Menard.
Plaintiff is serving a life sentence for murder. This case is now before the Court for a
preliminary review of Plaintiff’s First Amended Complaint (Doc. 13) pursuant to 28
U.S.C. § 1915A, which provides:
(a) Screening.– The court shall review, before docketing, if feasible or, in any
event, as soon as practicable after docketing, a complaint in a civil action in
which a prisoner seeks redress from a governmental entity or officer or employee
of a governmental entity.
(b) Grounds for Dismissal.– On review, the court shall identify
cognizable claims or dismiss the complaint, or any portion of the
complaint, if the complaint–
(1) is frivolous, malicious, or fails to state a claim on which
relief may be granted; or
(2) seeks monetary relief from a defendant who is immune
from such relief.

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An action or claim is frivolous if “it lacks an arguable basis either in law or
in fact.” Neitzke v. Williams, 490 U.S. 319, 325 (1989). An action fails to state a claim
upon which relief can be granted if it does not plead “enough facts to state a claim to
relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007).

Conversely, a complaint is plausible on its face “when the plaintiff pleads

factual content that allows the court to draw the reasonable inference that the defendant
is liable for the misconduct alleged.”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Although the Court is obligated to accept factual allegations as true, see Smith v.
Peters, 631 F.3d 418, 419 (7th Cir. 2011), some factual allegations may be so sketchy
or implausible that they fail to provide sufficient notice of a plaintiff’s claim. Brooks v.
Ross, 578 F.3d 574, 581 (7th Cir. 2009). Additionally, Courts “should not accept as
adequate abstract recitations of the elements of a cause of action or conclusory legal
statements.” Id.

At the same time, however, the factual allegations of a pro se

complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv.,
577 F.3d 816, 821 (7th Cir. 2009).
Upon careful review of the Plaintiff’s amended complaint and any
supporting exhibits, the Court finds it appropriate to exercise its authority under §
1915A; portions of this action are subject to summary dismissal.
The Complaint
The facts below are taken from Plaintiff’s First Amended Complaint (Doc.
13). Plaintiff, on June 21, 2009, sent a grievance to Defendant Gaetz describing a
dangerous staircase, stating that a certain flight of stairs are “wet/slick . . . during the
duration ‘shower lines’ are ran.” Furthermore, Menard had an “unwritten policy/practice

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requiring inmates to only wear ‘shower shoes’” while walking to and from the showers.
On July 25, 2009, Plaintiff slipped while walking down this flight of stairs, sustaining
injuries to his neck and spine. Officers transported Plaintiff to Chester Memorial Hospital
(Chester), and from there airlifted him to St. Louis University Hospital where he
remained until July 30, 2009. Chester performed a CAT scan and an M.R.I. upon
Plaintiff.
On July 30, 2009, Chester released Plaintiff to Menard, where Defendant
Fahim (Medical Director at Menard) treated his injuries. Defendant Fahim “[c]ontinually
refused to allow the plaintiff to see a specialist or receive an M.R.I.,” motivated by his
desire to reduce costs. Plaintiff states that the injuries he sustained on July 25, 2009,
have caused him severe and worsening pain within his lower spine, for over two years,
and that Defendant Fahim’s prescription of pain medication did not alleviate these
symptoms. Defendant Fahim’s treatment of Plaintiff is a result of Defendant Wexford’s
“written policy to save money”. Defendant Fahim denies Plaintiff certain treatments
because his employer, Defendant Wexford, provides monetary incentives to Defendant
Fahim in exchange for cost savings.
Plaintiff requests an injunction to receive an M.R.I. and back exam by
specialists. Further, Plaintiff requests compensatory and punitive damages totaling $1.5
million. Finally, Plaintiff requests a trial by jury and an injunction transferring Plaintiff to
Hill Correctional Center in Galesburg, Illinois.
Discussion
Based on the allegations of the complaint, the Court finds it convenient to
divide the pro se action into four (4) counts. The parties and the Court will use these

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designations in all future pleadings and orders, unless otherwise directed by a judicial
officer of this Court. The designation of these counts does not constitute an opinion as
to their merit.
Count 1 – Deliberate Indifference to Unsafe Prison Conditions
Plaintiff alleges that Defendant Gaetz was deliberately indifferent to a
hazardous condition at Menard that led to Plaintiff’s injuries. The Eighth Amendment
prohibiting cruel and unusual punishment is applicable to the states through the
Fourteenth Amendment. It has been a means of improving prison conditions that were
constitutionally unacceptable. See, e.g., Robinson v. California, 370 U.S. 660, 666
(1962); Sellers v. Henman, 41 F.3d 1100, 1102 (7th Cir. 1994). As the Supreme Court
noted in Rhodes v. Chapman, 452 U.S. 337, 346 (1981), the amendment reaches
beyond barbarous physical punishment to prohibit the unnecessary and wanton
infliction of pain and punishment grossly disproportionate to the severity of the crime.
Id., (quoting Gregg v. Georgia, 428 U.S. 153, 173 (1976)).

The Constitution also

prohibits punishment that is totally without penological justification. Gregg, 428 U.S. at
183.
Not all prison conditions trigger Eighth Amendment scrutiny – only
deprivations of basic human needs like food, medical care, sanitation, and physical
safety. Rhodes, 452 U.S. at 346; See also James v. Milwaukee Cnty., 956 F.2d 696,
699 (7th Cir. 1992). In order to prevail on a conditions of confinement claim, a plaintiff
must allege facts that, if true, would satisfy the objective and subjective components
applicable to all Eighth Amendment claims. McNeil v. Lane, 16 F.3d 123, 124 (7th Cir.
1994); see also Wilson v. Seiter, 501 U.S. 294, 302 (1991). The objective component

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focuses on the nature of the acts or practices alleged to constitute cruel and unusual
punishment. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992). The objective
analysis examines whether the conditions of confinement exceeded contemporary
bounds of decency of a mature civilized society.

Id.

The condition must result in

unquestioned and serious deprivations of basic human needs or deprive inmates of the
minimal civilized measure of life’s necessities. Rhodes v. Chapman, 452 U.S. 337, 347
(1981); accord Jamison-Bey v. Thieret, 867 F.2d 1046, 1048 (7th

Cir. 1989);

Meriwether v. Faulkner, 821 F.2d 408, 416 (7th Cir 1987).
In addition to showing objectively serious conditions, a plaintiff must also
demonstrate the subjective component to an Eighth Amendment claim. The subjective
component of unconstitutional punishment is the intent with which the acts or practices
constituting the alleged punishment are inflicted.

Jackson, 955 F.2d at 22.

The

subjective component requires that a prison official had a sufficiently culpable state of
mind. Wilson, 501 U.S. at 298; see also McNeil v. Lane, 16 F.3d 123, 124 (7th Cir.
1994). In conditions of confinement cases, the relevant state of mind is deliberate
indifference to inmate health or safety; the official must be aware of facts from which the
inference could be drawn that a substantial risk of serious harm exists, and he also
must draw the inference. See, e.g., Farmer v. Brennan, 511 U.S. 825, 837; Wilson, 501
U.S. at 303; Estelle v. Gamble, 429 U.S. 97, 104 (1976); DelRaine v. Williford, 32 F.3d
1024, 1032 (7th Cir. 1994).

The deliberate indifference standard is satisfied if the

plaintiff shows that the prison official acted or failed to act despite the official’s
knowledge of a substantial risk of serious harm. Farmer, 511 U.S. at 842. A failure of

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prison officials to act in such circumstances suggests that the officials actually want the
prisoner to suffer the harm. Jackson v. Duckworth, 955 F.2d 21, 22 (7th Cir. 1992).
Plaintiff has not pled sufficient facts to state a claim that Defendant Gaetz
was deliberately indifferent to the “unwritten policy/practice” that made a particular flight
of stairs unsafe. While prisons have an obligation to keep their residents physically
safe, “conditions that cannot be said to be cruel and unusual under contemporary
standards are not unconstitutional.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981).
As such, a prison’s failure to maintain dry stairwells at all times cannot be considered
cruel and unusual in light of contemporary standards. Specifically, there is nothing cruel
or unusual about walking on wet stairs after taking a shower.
Furthermore, to state an Eighth Amendment claim, Plaintiff must show that
Defendant Gaetz acted with a sufficiently culpable state of mind. Plaintiff’s assertions
that Defendant Gaetz was deliberately indifferent to an unsafe condition are groundless,
as the same wet staircase would also be used by guards and other officials, and thus,
not a condition unique to confinement. See Tunstall v. Rowe, 478 F.Supp. 87, 89 (N.D.
Ill. 1979). Plaintiff has failed to allege conditions unique to his confinement, conditions
that are objectively cruel and unusual, or facts supporting the inference that Defendant
Gaetz was deliberately indifferent.

Therefore, Plaintiff’s Eighth Amendment claim

against Defendant Gaetz shall be dismissed with prejudice.
Count 2 – Negligence
In addition to his Eight Amendment claim, Plaintiff brings a claim for
“professional and personal negligence” against Defendant Gaetz for his alleged failure
to correct the dangerous flight of stairs. A defendant can never be held liable under

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§ 1983 for negligence.

Daniels v. Williams, 474 U.S. 327, 328 (1986); Zarnes v.

Rhodes, 64 F.3d 285, 290 (7th Cir. 1995). “[T]he Due Process Clause is simply not
implicated by a negligent act of an official causing unintended loss of or injury to life,
liberty, or property.” Daniels v. Williams, 474 U.S. 327, 328 (1986) (Inmate injured in a
fall caused when guard negligently left a pillow on a stairway). Plaintiff’s claim that
Defendant Gaetz was negligent does not rise to an Eighth Amendment violation. As
Plaintiff’s constitutional claim for deliberate indifference has been dismissed, he cannot
use supplemental jurisdiction as a means to proceed on his negligence claim. Thus,
this claim shall be dismissed without prejudice to Plaintiff bringing a claim in state court.
Count 3 – Deliberate Indifference to a Medical Need
The Supreme Court has recognized that “deliberate indifference to serious
medical needs of prisoners” may constitute cruel and unusual punishment under the
Eighth Amendment. Estelle v. Gamble, 429 U.S. 97, 104 (1976); Farmer v. Brennan,
511 U.S. 825 (1994); see Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). This
encompasses a broader range of conduct than intentional denial of necessary medical
treatment, but it stops short of “negligen[ce] in diagnosing or treating a medical
condition.” Estelle, 429 U.S. at 106. See also Sanville v. McCaughtry, 266 F.3d 724,
734 (7th Cir. 2001).
To prevail on an Eighth Amendment claim, a plaintiff must show that the
responsible prison officials were deliberately indifferent to his serious
medical needs. See Farmer v. Brennan, 511 U.S. 825, 837 (1994);
Dunigan ex rel. Nyman v. Winnebago Cnty., 165 F.3d 587, 590 (7th Cir.
1999). Deliberate indifference involves a two-part test. The plaintiff must
show that (1) the medical condition was objectively serious, and (2) the
state officials acted with deliberate indifference to his medical needs,
which is a subjective standard.

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Sherrod v. Lingle, 223 F.3d 605, 619 (7th Cir. 2000). However, the Supreme Court
stressed that this test is not an insurmountable hurdle for inmates raising Eighth
Amendment claims:
[A]n Eighth Amendment claimant need not show that a prison official acted
or failed to act believing that harm actually would befall an inmate; it is
enough that the official acted or failed to act despite his knowledge of a
substantial risk of serious harm . . . . Whether a prison official had the
requisite knowledge of a substantial risk is a question of fact subject to
demonstration in the usual ways, including inference from circumstantial
evidence . . . and a factfinder may conclude that a prison official knew of a
substantial risk from the very fact that the risk was obvious.
Farmer, 511 U.S. at 842.
The Seventh Circuit has held that a medical need is “serious” where it has
either “been diagnosed by a physician as mandating treatment” or where the need is so
obvious that even a lay person would easily recognize the necessity for a doctor’s
attention.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir. 1997). See also Laaman
v. Helgemoe, 437 F.Supp. 269, 311 (D. N.H. 1977); Mahan v. Plymouth County House
of Corr., 64 F.3d 14, 18 (1st Cir. 1995); Monmouth Cnty. Corr. Inst. Inmates v. Lanzaro,
834 F.2d 326, 347 (3d Cir. 1987), cert. denied, 486 U.S. 1006; Sheldon v. Penzley, 49
F.3d 1312, 1316 (8th Cir. 1995); Riddle v. Mondragon, 83 F.3d 1197, 1202 (10th Cir.
1996); Hill v. DeKalb Regional Youth Detention Ctr., 40 F.3d 1176, 1186 (8th Cir. 1994).
The Seventh Circuit considers the following to be indications of a serious
medical need: (1) where failure to treat the condition could “result in further significant
injury or the unnecessary and wanton infliction of pain”; (2) “[e]xistence of an injury that
a reasonable doctor or patient would find important and worthy of comment or
treatment”; (3) “presence of a medical condition that significantly affects an individual’s

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daily activities”; or (4) “the existence of chronic and substantial pain”.

Gutierrez v.

Peters, 111 F.3d 1364, 1373 (7th Cir. 1997).
The Seventh Circuit’s decisions following this standard for deliberate
indifference in the denial or delay of medical care require evidence of a defendant’s
actual knowledge of, or reckless disregard for, a substantial risk of harm. See Chavez
v. Cady, 207 F.3d 901, 906 (7th Cir. 2000) (officers were on notice of seriousness of
condition of prisoner with ruptured appendix because he “did his part to let the officers
know he was suffering”). The Circuit also recognizes that a defendant’s inadvertent
error, negligence or even ordinary malpractice is insufficient to rise to the level of an
Eighth Amendment constitutional violation. See Duckworth v. Ahmad, 532 F.3d 675,
679 (7th Cir. 2008); Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003) (courts will
not take sides in disagreements with medical personnel’s judgments or techniques).
However, a plaintiff inmate need not prove that a defendant intended the harm that
ultimately transpired or believed the harm would occur. Walker v. Benjamin, 293 F.3d
1030, 1037 (7th Cir. 2002) (discussing Haley v. Gross, 86 F.3d 630, 641 (7th Cir.
1996)).
Plaintiff claims that Defendant Fahim was deliberately indifferent in
refusing to refer him to a specialist or order M.R.I. testing for Plaintiff’s “severe and
worsening pain within his lower spine.”

Plaintiff describes what could plausibly be

termed a “serious medical need,” as he claims his spine injury resulted in severe pain
that persisted for over two years.

While Defendant Fahim has prescribed some

treatment, Plaintiff alleges that these measures have been ineffective in treating his
hernia.

Furthermore, as the ineffectiveness of these treatments became more

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apparent, Defendant Fahim continuously treated Plaintiff with hostility and an
unwillingness to listen during his visits, and at one point threatened to send Plaintiff to
segregation because Plaintiff persisted in his complaints. Therefore, Plaintiff’s claim
that Defendant Fahim was deliberately indifferent to his severe and persistent back
injury merits further review.
As to Defendant Wexford, the Seventh Circuit has held that a corporate
entity violates an inmate’s constitutional rights, in this case deliberate indifference to
Plaintiff’s serious medical needs, only when it has a policy that creates conditions that
infringe upon an inmate’s constitutional rights. See Woodward v. Corr. Med. Serv. of
Ill., Inc., 368 F.3d 917, 927 (7th Cir. 2004). See also Jackson v. Ill. Medi-Car, Inc., 300
F.3d 760, 766 n.6 (7th Cir. 2002) (private corporation is treated as though it were a
municipal entity in a § 1983 action).

Plaintiff alleges conduct sufficient to subject

Defendant Wexford to liability under § 1983. In fact, Plaintiff asserts that Defendant
Wexford’s policy of compensating its employees for engaging in cost-cutting practices
ultimately informed Defendant Fahim’s treatment of his back injury.

A policy

encouraging the denial of MRIs and specialist referrals could plausibly show deliberate
indifference towards the medical conditions of inmates. Therefore, Defendant Wexford
shall not be dismissed at this time.
Count 4 – Medical Malpractice
Plaintiff brings a claim against Defendant Fahim for medical malpractice
based on the same conduct detailed above.

Where a district court has original

jurisdiction over a civil action such as a § 1983 claim, it also has supplemental
jurisdiction over related state law claims pursuant to 28 U.S.C. § 1367(a), so long as the

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state claims “derive from a common nucleus of operative fact” with the original federal
claims. Wisconsin v. Ho-Chunk Nation, 512 F.3d 921, 936 (7th Cir. 2008). “A loose
factual connection is generally sufficient.” Houskins v. Sheahan, 549 F.3d 480, 495 (7th
Cir. 2008) (citing Baer v. First Options of Chicago, Inc., 72 F.3d 1294, 1299 (7th Cir.
1995)). While this Court has supplemental jurisdiction over these state-law claims
pursuant to 28 U.S.C. § 1367, this is not the end of the matter.
Under Illinois law, a Plaintiff “[i]n any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death by reason of
medical, hospital, or other healing art malpractice,” must file an affidavit along with the
complaint, declaring one of the following:

(1) that the affiant has consulted and

reviewed the facts of the case with a qualified health professional who has reviewed the
claim and made a written report that the claim is reasonable and meritorious (and the
written report must be attached to the affidavit); (2) that the affiant was unable to obtain
such a consultation before the expiration of the statute of limitations, and affiant has not
previously voluntarily dismissed an action based on the same claim (and in this case,
the required written report shall be filed within 90 days after the filing of the complaint);
or (3) that the plaintiff has made a request for records but the respondent has not
complied within 60 days of receipt of the request (and in this case the written report
shall be filed within 90 days of receipt of the records). See 735 Ill. Comp. Stat. §5/2622(a) (as amended by P.A. 90-579, effective May 1, 1998). 1 A separate affidavit and
report shall be filed as to each defendant. See 735 Ill. Comp. Stat. §5/2-622(b).

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P.A. 94-677, effective August 25, 2005, which amended 735 ILL. COMP. STAT. §5/2-622(a) and
other portions of the Illinois statute governing health care and medical malpractice actions, was
held to be unconstitutional in its entirety in Lebron v. Gottlieb Mem. Hosp., 930 N.E.2d 895 (Ill.

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Failure to file the required affidavit is grounds for dismissal of the claim.
See 735 Ill. Comp. Stat. § 5/2-622(g); Sherrod v. Lingle, 223 F.3d 605, 613 (7th Cir.
2000). However, whether such dismissal should be with or without prejudice is up to
the sound discretion of the court. Sherrod, 223 F.3d at 614. “Illinois courts have held
that when a plaintiff fails to attach a certificate and report, then ‘a sound exercise of
discretion mandates that [the plaintiff] be at least afforded an opportunity to amend her
complaint to comply with section 2-622 before her action is dismissed with prejudice.’”
Id.; see also Chapman v. Chandra, 2007 WL 1655799 *4-5 (S.D. Ill. 2007).
In the instant case, Plaintiff has filed what he deems is a “certificate of
merit” (Doc. 13, p. 5) that in some ways resembles the required affidavit (See Doc. 13,
p. 29). However, this letter lacks crucial information required by Illinois law—namely,
the written report from a qualified health professional that Plaintiff’s claim is reasonable
and meritorious (not merely a treatment recommendation). Therefore, Plaintiff shall be
allowed 35 days (on or before September 13, 2012) to file the required affidavits.
Should Plaintiff fail to timely file the required affidavits, this claim shall be dismissed with
prejudice. See FED. R. CIV. P. 41(b).
Disposition
IT IS HEREBY ORDERED that COUNT 1 fails to state a claim upon which
relief can be granted and thus is DISMISSED with prejudice. The Court lacks subjectmatter jurisdiction over COUNT 2.

COUNTS 3 and 4 shall receive further review.

DEFENDANT GAETZ is dismissed from this action without prejudice to Plaintiff bringing
a claim in state court.
2010). As a result of Lebron, the previous version of the statute is now in effect. See Hahn v.
Walsh, 686 F. Supp. 2d 829, 832 n.1 (C.D. Ill. 2010).

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IT IS FURTHER ORDERED that as to the medical malpractice claim in
COUNT 4 against Defendants FAHIM, Plaintiff shall file the required affidavits pursuant
to 735 ILL. COMP. STAT. §5/2-622, within 35 days of the date of this order (see date
certain above). Should Plaintiff fail to timely file the required affidavits, COUNT 4 shall
be dismissed with prejudice.
IT IS FURTHER ORDERED that the Clerk of Court shall prepare for
Defendants FAHIM and WEXFORD HEALTH SERVICES: (1) Form 5 (Notice of a
Lawsuit and Request to Waive Service of a Summons), and (2) Form 6 (Waiver of
Service of Summons). The Clerk is DIRECTED to mail these forms, a copy of the
complaint, and this Memorandum and Order to Defendants’ places of employment as
identified by Plaintiff. If Defendants fail to sign and return the Waiver of Service of
Summons (Form 6) to the Clerk within 30 days from the date the forms were sent, the
Clerk shall take appropriate steps to effect formal service on Defendants, and the Court
will require Defendants to pay the full costs of formal service, to the extent authorized by
the Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that, if the Defendants cannot be found at the
addresses provided by Plaintiff, the employer shall furnish the Clerk with the
Defendants’ current work addresses, or, if not known, the Defendants’ last-known
addresses. This information shall be used only for sending the forms as directed above
or for formally effecting service. Any documentation of the address shall be retained
only by the Clerk. Address information shall not be maintained in the court file, nor
disclosed by the Clerk.

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IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants (or
upon defense counsel once an appearance is entered), a copy of every further pleading
or other document submitted for consideration by the Court. Plaintiff shall include with
the original paper to be filed a certificate stating the date on which a true and correct
copy of any document was served on Defendants or counsel. Any paper received by a
district judge or magistrate judge that has not been filed with the Clerk or that fails to
include a certificate of service will be disregarded by the Court.
Defendants are ORDERED to timely file an appropriate responsive
pleading to the complaint and shall not waive filing a reply pursuant to 42 U.S.C. §
1997e(g).
Pursuant to Local Rule 72.1(a)(2), this action is REFERRED to United
States Magistrate Judge Stephen C. Williams for further pre-trial proceedings.
Further, this entire matter is hereby REFERRED to United States
Magistrate Judge Williams for disposition, as contemplated by Local Rule 72.2(b)(2)
and 28 U.S.C. § 636(c), should all the parties consent to such a referral.
IT IS FURTHER ORDERED that if judgment is rendered against Plaintiff,
and the judgment includes the payment of costs under § 1915, Plaintiff will be required
to pay the full amount of the costs, notwithstanding that his application to proceed in
forma pauperis has been granted. See 28 U.S.C. § 1915(f)(2)(A).
Plaintiff is ADVISED that at the time application was made under 28
U.S.C. § 1915 for leave to commence this civil action without being required to prepay
fees and costs or give security for the same, the applicant and his or her attorney were
deemed to have entered into a stipulation that the recovery, if any, secured in the action

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shall be paid to the Clerk of the Court, who shall pay therefrom all unpaid costs taxed
against plaintiff and remit the balance to plaintiff. Local Rule 3.1(c)(1).
Plaintiff is ADVISED that he is under a continuing obligation to keep the
Clerk of Court and each opposing party informed of any change in his address; the
Court will not independently investigate his whereabouts. This shall be done in writing
and not later than 7 days after a transfer or other change in address occurs. Failure to
comply with this order will cause a delay in the transmission of court documents and
may result in dismissal of this action for want of prosecution. See Fed. R. Civ. P. 41(b).
IT IS SO ORDERED.
DATED: 8/9/2012

_s/ MICHAEL J. REAGAN_____
Michael J. Reagan
United States District Judge

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