Tuduj v. Johnson et al
Filing
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ORDER REFERRING CASE to Magistrate Judge Donald G. Wilkerson. Signed by Magistrate Judge Donald G. Wilkerson on 3/8/2017. (tjk)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
TOM TUDUJ,
#MO5570,
Plaintiff,
vs.
ERIC M. JOHNSON,
DR. CHRISTINE LOCCHEAD,
SAM NOWABASI,
DR. JOHN L. TROST,
DR. RITZ,
COLLIGIAL,
JACKIE MARTELLA,
TODD BROOKS,
KIMBERLY BUTLER, and
JOHN R. BALDWIN,
Defendants.
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Case No. 17-cv-00219-NJR
MEMORANDUM AND ORDER
ROSENSTENGEL, District Judge:
Plaintiff Tom Tuduj, currently incarcerated in Menard Correctional Center (“Menard”),
brings this pro se action for deprivations of his constitutional rights pursuant to 42 U.S.C.
§ 1983. According to the Complaint, Defendants have been deliberately indifferent to Plaintiff’s
serious medical condition. Specifically, Plaintiff contends he suffers from a systemic virus or
infection that has damaged his eyes, necessitating the use of dark eyeglasses (transition lenses).
He further alleges that the virus or infection requires treatment and/or referral to a specialist.
In connection with his claims, Plaintiff names Eric M. Johnson (Optometrist), Christine
Locchead (Optometrist), Sam Nowabasi (Physician), Dr. John L. Trost (Physician and Menard
Medical Director), Dr. Ritz (Physician), Jackie Martella (CEO of Boswell Pharmacy, a private
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entity contracted to provide prescription medicine), Todd Brooks (Assistant Warden of Menard
at the time of the alleged violations), Kimberly Butler (Warden of Menard at the time of the
alleged violations), John R. Baldwin (Director of IDOC), and “Colligial” (not identified as a
Defendant in the body of the Complaint). Brooks, Butler, and Baldwin are sued in their official
capacities only. The other Defendants are sued in their individual capacities only.
Plaintiff seeks monetary damages, as well as declaratory and injunctive relief. Plaintiff’s
request for injunctive relief includes, among other things, a request to order Defendants to have
him treated by an infectious disease specialist. The Court construes Plaintiff’s request for
injunctive relief as including a Motion for Preliminary Injunction pursuant to Federal Rule of
Civil Procedure 65(a), as well as a general prayer for injunctive relief.
This case is now before the Court for a preliminary review of the Complaint 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.
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). Frivolousness is an objective standard that refers
to a claim that any reasonable person would find meritless. Lee v. Clinton, 209 F.3d 1025, 102627 (7th Cir. 2000). 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.
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Twombly, 550 U.S. 544, 570 (2007). The claim of entitlement to relief must cross “the line
between possibility and plausibility.” Id. at 557. At this juncture, the factual allegations of the
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 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
According to the Complaint, Plaintiff suffers from a systemic virus or infection. (Doc. 1,
p. 9). The virus or infection has damaged Plaintiff’s eyes, causing excruciating eye pain and
sensitivity to light. (Doc. 1, pp. 6-7). Aside from Plaintiff’s reported eye pain and sensitivity to
light, Plaintiff contends it is evident that he is suffering from a virus or infection because the skin
on his face and cranium is red and inflamed. (Doc. 1, p. 7). Plaintiff has exhibited one or more of
these symptoms since January 2007 to the present. (Doc. 1, pp. 7-12).
In February 2011, Dr. Fuentes, an ophthalmologist, 1 prescribed Doxycycline and
Acyclovir. (Doc. 1, pp. 7-9). Although not expressly alleged, apparently this was in an effort to
treat the infection and/or virus causing Plaintiff’s eye pain and related symptoms. Id. The
prescribed treatment was not effective. (Doc. 1, p. 9). On September 19, 2014, Dr. Fuentes
prescribed DMSO (Dimethyl Sulfoxide) as a treatment for Plaintiff’s symptoms. (Doc. 1, p. 9).
According to the Complaint, Boswell pharmacy is the entity responsible for providing prescribed
medication to prisoners at Menard. (Doc. 1, p. 3). DMSO is not part of Boswell’s formulary.
(Doc. 1, p. 10). Accordingly, Boswell did not fill Plaintiff’s prescription for DMSO.
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Dr. Fuentes is not a Defendant in this action.
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Plaintiff contends that he has met with Trost “numerous times” and requested treatment
for his condition. (Doc. 1, p. 11). Specifically, Plaintiff has asked that he receive his prescription
for DMSO. (Doc. 1, p. 11). Trost has refused to assist Plaintiff in obtaining DMSO, has not
provided any alternative treatment, and has failed to refer Plaintiff to an infectious disease
specialist. (Doc. 1, p. 11). Additionally, both Ritz and Trost participated in a collegial review that
resulted in denying Plaintiff’s request for treatment. (Doc. 1, p. 11).
Plaintiff also met with Caldwell regarding his condition on November 27, 2016. (Doc. 1,
p. 10). Plaintiff indicated he was suffering from a systemic virus or infection that required
treatment. (Doc. 1, p. 11). Plaintiff requested a prescription for DMSO. (Doc. 1, p. 10). Caldwell
refused to provide the requested prescription. (Doc. 1, p. 10). Caldwell indicated he could not
“get away with” prescribing DMSO because, unlike Dr. Fuentes, he is not an ophthalmologist.
(Doc. 1, p. 10). Caldwell did not conduct a physical examination of Plaintiff and apparently did
not provide a course of treatment. (Doc. 1, pp. 10-11). Caldwell indicated he would refer
Plaintiff to Trost, however, Plaintiff has yet to receive any such referral. (Doc. 1, p. 11).
Plaintiff has had several visits with Nowabasi. (Doc. 1, p. 10). These visits occurred
between 2011 and 2014. (Doc. 1, p. 10). Other than prescribing hydrogen peroxide in 2014
(which was subsequently confiscated by a guard), Nowabasi took no action with regard to
Plaintiff’s condition. (Doc. 1, p. 10). Additionally, Nowabasi failed to refer Plaintiff to an
infectious disease specialist. (Doc. 1, p. 10).
Plaintiff also contends that in January 2007 (prior to arriving at Menard) he received a
prescription for transition lenses (due to his sensitivity to light, presumably caused by the virus
or infection). (Doc. 1, p. 5). Unfortunately, however, Plaintiff’s prescription glasses were
subsequently confiscated. (Doc. 1, p. 5). After that, between June 2009 and April 2016,
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Plaintiff’s requests for transition lenses were denied, delayed, and/or he received a prescription
for ineffective transition lenses. (Doc. 1, pp. 5-8). Specifically, Plaintiff contends that Johnson
and Locchead failed to order Plaintiff appropriate replacement lenses and/or delayed his access
to appropriate replacement lenses. (Doc. 1, pp. 7-8). This caused Plaintiff to experience
unnecessary pain and suffering. (Doc. 1, pp. 5-8). Plaintiff did not receive adequate transition
lenses until April 2016 when he was seen by Dr. Kehoe. 2 (Doc. 1, p. 8).
Plaintiff contends Baldwin, Butler, and Brooks “have a departmental or facility policy
and practice of failing to provide medically necessary treatment and are deliberately indifferent
to the fact that the systemic failure to do so results in injury and substantial risk of serious harm
to prisoners.” (Doc. 1, p. 15).
The allegations in Plaintiff’s Complaint reference alleged constitutional violations
beginning in 2009 that continue through today, at least with respect to Plaintiff’s alleged
systemic infection and related symptoms affecting his eye. (Doc. 1, pp. 5-20).
Discussion
Based on the allegations of the Complaint and Plaintiff’s articulation of his claims, the
Court finds it convenient to divide the pro se action into a single count. Any other claim that is
mentioned in the Complaint but not addressed in this Order should be considered dismissed
without prejudice as inadequately pled under the Twombly pleading standard.
COUNT 1 – Defendants responded to Plaintiff’s serious medical need (systemic
infection and related symptoms affecting the eye) with deliberate
indifference, in violation of the Eighth Amendment.
2
Dr. Kehoe is not a Defendant in this action.
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Statute of Limitations
Although Plaintiff complains of conduct beginning as early as 2009, the Court cannot, at
this stage of the litigation, conclude that Plaintiff’s claims are barred by the applicable statute of
limitations. Read liberally, Plaintiff has alleged an ongoing injury that will continue as long as
Defendants fail to provide the needed treatment. As such, the Court declines to dismiss
Plaintiff’s claims as time barred at the screening stage. See Devbrow v. Kalu, 705 F.3d 765 (7th
Cir. 2013).
Substantive Analysis
The Eighth Amendment of the United States Constitution bars the cruel and unusual
punishment of prisoners, and prison officials violate this proscription “when they display
deliberate indifference to serious medical needs of prisoners.” Greeno v. Daley, 414 F.3d 645,
652-53 (7th Cir. 2005). To bring an Eighth Amendment claim against a physician, a prisoner has
two hurdles to clear: he must first show that his medical condition is “objectively” serious, and
he must then allege that the medical professional acted with the requisite state of mind. Jackson
v. Ill. Medi-Car, Inc., 300 F.3d 760, 765 (7th Cir. 2002).
For screening purposes, Plaintiff has alleged the existence of an objectively serious
medical condition. An objectively serious condition is “one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay person would easily
recognize the necessity for a doctor’s attention.” Wynn v. Southward, 251 F.3d 588, 593 (7th Cir.
2001). Factors that indicate a serious condition include “the existence of an injury that a
reasonable doctor or patient would find important and worthy of comment or treatment; the
presence of a medical condition that significantly affects an individual’s daily activities; or the
existence of chronic and substantial pain.” Gutierrez v. Peters, 111 F.3d 1364, 1373 (7th Cir.
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1997). Here, Plaintiff’s ongoing pain, sensitivity to light, and facial inflammation qualify as
serious, at least at this preliminary stage.
Plaintiff’s Complaint also sufficiently alleges, at the screening stage, that Johnson,
Locchead, Nowabasi, Trost, and Ritz acted with deliberate indifference. To be sure, “medical
malpractice, negligence, or even gross negligence” by a physician “does not equate to deliberate
indifference.” Johnson v. Doughty, 433 F.3d 1001, 1012-13 (7th Cir. 2006). Because deliberate
indifference is such a demanding state of mind requirement, there is no constitutional violation
merely because a physician’s treatments ultimately prove ineffective, Duckworth v. Ahmad, 532
F.3d 675, 680 (7th Cir. 2008), nor is there a constitutional violation solely because a doctor
refuses to give a prisoner the exact treatment he wishes, Forbes v. Edgar, 112 F.3d 262, 267 (7th
Cir. 1997). That said, deliberate indifference can exist if a professional’s decision represents
“such a substantial departure from accepted professional judgment, practice, or standards as to
demonstrate that the person responsible actually did not base the decision on such a judgment.”
Estate of Cole by Pardue v. Fromm, 94 F.3d 254, 261-62 (7th Cir. 1996). It also can exist when
an official fails to provide any treatment for a medical condition, Gayton v. McCoy, 593 F.3d
610, 623-24 (7th Cir. 2010), when an official persists with ineffective treatment for a medical
problem, Greeno, 414 F.3d at 655, or when an official delays medical treatment or needlessly
prolongs a prisoner’s pain, Gomez v. Randle, 680 F.3d 859, 865 (7th Cir. 2012).
While Plaintiff’s Complaint is sometimes light on specifics and at times confusing, when
the complaint is construed liberally and all inferences are drawn in Plaintiff’s favor, Plaintiff
alleges that Johnson, Locchead, Nowabasi, Trost, and Ritz interfered with or delayed a
prescribed course of treatment, pressed forward with ineffective treatment, failed to offer
treatment, and/or failed to consider referring Plaintiff to a specialist. These allegations are just
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enough to give Johnson, Locchead, Nowabasi, Trost, and Ritz notice of Plaintiff’s claim and to
state a claim for deliberate indifference against these Defendants. Accordingly, Count 1 will
proceed as to Locchead, Nowabasi, Trost, and Ritz.
But Count 1 shall not proceed as to Martella. The Complaint alleges that Boswell
Pharmacy failed to fill one of Plaintiff’s prescriptions for a non-formulary item, that Martella is
the CEO of Boswell Pharmacy, and that she is therefore liable for interfering with a prescribed
course of treatment. These allegations are insufficient to state a claim as to Martella because
there is no indication that Martella was personally involved in the alleged constitutional
deprivations. See Vance v. Peters, 97 F.3d 987, 991 (7th Cir. 1996) (“Section 1983 creates a
cause of action based on personal liability and predicated upon fault; thus liability does not
attach unless the individual defendant caused or participated in a constitutional violation.”).
Accordingly, Count 1 shall be dismissed without prejudice as to Martella. 3
The Court next addresses the viability of Count 1 with respect to Brooks (formerly the
Assistant Warden of Menard), Butler (formerly the Warden of Menard), and Baldwin (Director
of IDOC). Plaintiff contends he sues these three Defendants in their official capacities only.
Nonetheless, the Court considers the viability of both official capacity and individual capacity
claims as to these Defendants.
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To reach this finding, the Court need not address the issue of whether Boswell Pharmacy is a state actor for
purposes of § 1983. See Shields v. Illinois Dep’t of Corr., 746 F.3d 782, 797 (7th Cir. 2014). See also Boyce v.
Martella, 2014 WL 5766112 (N.D. Ill. Nov. 4, 2014) (discussing Boswell Pharmacy and status as a state actor for
purposes of § 1983). The body of the Complaint also references Cathleen Martella, allegedly the CFO of Boswell
Pharmacy. Cathleen Martella, however, is not identified as a Defendant in the caption or in Plaintiff’s list of
Defendants. As such, she is not considered a Defendant by the Court. See FED. R. CIV. P. 10(a) (noting that the title
of the complaint “must name all the parties”); Myles v. United States, 416 F.3d 551, 551–52 (7th Cir. 2005) (to be
properly considered a party a defendant must be “specif[ied] in the caption”); Id. at 553 (“[It is] unacceptable for a
court to add litigants on its own motion. Selecting defendants is a task for the plaintiff, not the judge.”).
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To the extent that Plaintiff is seeking money damages, the official capacity claims fail as
to these Defendants. See Will v. Mich. Dep’t of State Police, 491 U.S. 58, 71 (1989); Wynn v.
Southward, 251 F.3d 588, 592 (7th Cir. 2001).
To the extent that Plaintiff is seeking money damages against these Defendants in their
individual capacities, the claim also fails. Section 1983 creates a cause of action based on
personal liability and predicated upon fault; thus, “to be liable under [Section] 1983, an
individual defendant must have caused or participated in a constitutional deprivation.” Pepper v.
Village of Oak Park, 430 F.3d 809, 810 (7th Cir.2005) (citations omitted). The doctrine of
respondeat superior, under which a supervisor may be held liable for a subordinate’s actions,
does not apply to actions filed under Section 1983. See, e.g., Kinslow v. Pullara, 538 F.3d 687,
692 (7th Cir. 2008); Chavez v. Illinois State Police, 251 F.3d 612, 651. Although the doctrine of
respondeat superior is not applicable, “[s]upervisory liability will be found ... if the supervisor,
with knowledge of the subordinate’s conduct, approves of the conduct and the basis for it.”
Lanigan v. Village of East Hazel Crest, Ill., 110 F.3d 467, 477 (7th Cir.1997); Chavez, 251 F.3d
at 651. Allegations that an agency’s senior officials were personally responsible for creating the
policies, practices, or customs that caused the constitutional deprivations suffice to demonstrate
personal involvement. See also Doyle v. Camelot Care Centers, Inc., 305 F.3d 603, 615 (7th Cir.
2002).
Plaintiff does not allege that these Defendants were personally involved in the alleged
constitutional violations. Further, each Defendant’s supervisory position, standing alone,
supports no finding of personal involvement. Finally, Plaintiff’s bald assertion that Baldwin,
Butler, and Brooks “have a departmental or facility policy and practice of failing to provide
medically necessary treatments” (and similar generic claims) fails to satisfy basic pleading
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standards. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007); FED. R. CIV. P. 8. Plaintiff
must plead “enough facts to state a claim to relief that is plausible on its face.” Twombly, 550
U.S. at 570. The claim of entitlement to relief must cross “the line between possibility and
plausibility.” Id. at 557. The allegations regarding the policies, customs, or practice are
threadbare and do not suggest that any policy, custom, or practice traceable to these Defendants
deprived Plaintiff of a protected right. As such, the Count 1 shall be dismissed without prejudice
as to these Defendants.
The Court notes that Plaintiff is seeking injunctive relief with regard to Count 1. The
warden is the appropriate party for injunctive relief in a case alleging deliberate indifference to
serious medical needs. Gonzales v. Feinerman, 663 F.3d 311, 315 (7th Cir. 2011). Accordingly,
the Clerk will be directed to add Jacqueline Lashbrook, the warden of Menard, in her official
capacity, for purposes of carrying out any injunctive relief that is ordered.
Finally, the Court shall direct the Clerk to dismiss “Colligial” as a Defendant. The
caption of Plaintiff’s Complaint named “Dr. Ritz and Colligial” as a Defendant. (Doc. 1, p. 1).
The Clerk listed “Colligial” as a separate Defendant. A review of the Complaint reveals that
“Colligial” is not a person or entity that Plaintiff intended to sue. Rather, Ritz’s denial of
Plaintiff’s request for treatment was part of a collegial review conducted by Ritz and Trost.
(Doc. 1, p. 10). Accordingly, Colligial shall be dismissed from the action.
Pending Motions
Plaintiff’s Motion for Leave to Proceed In Forma Pauperis (Doc. 2) shall be addressed in
a separate Order of this Court. For purposes of determining how service of process shall proceed,
however, the Court observes that Plaintiff appears to qualify for pauper status. Accordingly,
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service of summons and the Complaint will be effected at government expense. See 28 U.S.C.
§ 1915(d).
In addition, based on the allegations in the Complaint and Plaintiff’s requested relief, the
Clerk shall be directed to add a Motion for Preliminary Injunction as a separate docket entry in
CM/ECF. This motion shall be REFERRED to United States Magistrate Judge Donald G.
Wilkerson for prompt disposition.
Disposition
The Clerk is DIRECTED to ADD a Motion for Preliminary Injunction as a separate
docket entry in CM/ECF. This motion is hereby REFERRED to United States Magistrate Judge
Donald G. Wilkerson for prompt disposition.
The Clerk is DIRECTED to TERMINATE the following Defendants as parties in
CM/ECF: COLLIGIAL, MARTELLA, BROOKS, BUTLER, and BALDWIN.
The Clerk is DIRECTED to add JACQUELINE LASHBROOK, the warden of
Menard, in her official capacity, for purposes of carrying out any injunctive relief that is ordered.
IT IS HEREBY ORDERED that COUNT 1 shall receive further review as to
JOHNSON, LOCCHEAD, NOWABASI, TROST, and RITZ. COUNT 1 is DISMISSED
without prejudice as to COLLIGIAL, MARTELLA, BROOKS, BUTLER, and BALDWIN.
With respect to COUNT 1, the Clerk of the Court shall prepare for Defendants
JOHNSON, LOCCHEAD, NOWABASI, TROST, RITZ, and LASHBROOK: (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 each Defendant’s place of employment as identified by
Plaintiff. If a Defendant fails to sign and return the Waiver of Service of Summons (Form 6) to
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the Clerk within 30 days from the date the forms were sent, the Clerk shall take appropriate steps
to effect formal service on that Defendant, and the Court will require that Defendant to pay the
full costs of formal service, to the extent authorized by the Federal Rules of Civil Procedure.
With respect to a Defendant who no longer can be found at the work address provided by
Plaintiff, the employer shall furnish the Clerk with the Defendant’s current work address, or, if
not known, the Defendant’s last-known address. 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
or disclosed by the Clerk.
Plaintiff shall serve upon Defendants (or upon defense counsel once an appearance is
entered), a copy of every 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 the 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 Donald G. Wilkerson for further pre-trial proceedings. Further, this entire matter
shall be REFERRED to United States Magistrate Judge Wilkerson for disposition, pursuant
to Local Rule 72.2(b)(2) and 28 U.S.C. § 636(c), if all parties consent to such a referral.
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, regardless of the fact
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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 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).
Finally, 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: March 8, 2017
____________________________
NANCY J. ROSENSTENGEL
United States District Judge
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