Monk v. Luy et al

Filing 7

ORDER signed by Judge J P Stadtmueller on 12/23/09 as follows: granting 2 plaintiff's Motion for Leave to Proceed in forma pauperis; denying 3 plaintiff's Motion to Appoint Counsel; granting 5 plaintiff's Motion to Amend Complain t; directing the U.S. Marshal to serve a copy of the Amended Complaint, a waiver of service form, and/or summons, and a copy of this order on the defendants; ordering defendants to file a responsive pleading to the Amended Complaint. See Order. (cc: plaintiff, Warden of Racine Correctional Institution, AAG Corey F. Finkelmeyer, all counsel)(nm)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF WISCONSIN
D A R IN TYRONE MONK, P l a i n t if f, v. E N R IQ U E LUY, SUSAN NYGREN, DEPUTY W A R D E N KEMPER, MAURICE KRASHIN, JANE DOE AND JOHN DOE, Nurses, D e fe n d a n ts . C a s e No. 09-CV-646

DECISION AND ORDER
T h e plaintiff, Darin Tyrone Monk, who is incarcerated at Racine Correctional In s titu tio n , filed a pro se civil rights complaint under 42 U.S.C. § 1983, alleging that h is civil rights were violated. This matter comes before the court on the plaintiff's p e titio n to proceed in forma pauperis, his motion to amend the complaint, his motion to appoint counsel, and for screening of the plaintiff's amended complaint.1 T h e plaintiff is required to pay the statutory filing fee of $350.00 for this action. S e e 28 U.S.C. § 1915(b)(1). If a prisoner does not have the money to pay the filing fe e , he or she can request leave to proceed in forma pauperis. The plaintiff has filed a certified copy of his prison trust account statement for the six-month period im m e d ia te ly preceding the filing of his complaint, as required under 28 U.S.C.

On October 9, 2009, the plaintiff filed a motion to amend complaint, along with a proposed amended complaint. Because the court has not yet screened the plaintiff's original complaint, the court will grant the plaintiff's motion to amend and screen the amended complaint. See Fed. R. Civ. P. 15(a)(1)(A) (Parties may amend once before a responsive pleadings is filed as a matter of course.).

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§ 1915(a)(2), and has been assessed and paid an initial partial filing fee of $31.64. T h e court will grant the plaintiff's motion for leave to proceed in forma pauperis. T h e court is required to screen complaints brought by prisoners seeking relief a g a in s t a governmental entity or officer or employee of a governmental entity. 28 U .S .C . § 1915A(a). The court must dismiss a complaint or portion thereof if the p ris o n e r has raised claims that are legally "frivolous or malicious," that fail to state a claim upon which relief may be granted, or that seek monetary relief from a d e fen d a n t who is immune from such relief. 28 U.S.C. § 1915A(b). A claim is legally frivolous when it lacks an arguable basis either in law or in fa c t. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v. Williams, 490 U.S. 3 1 9 , 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1 9 9 7 ). The court may, therefore, dismiss a claim as frivolous where it is based on a n indisputably meritless legal theory or where the factual contentions are clearly b a s e le s s . Neitzke, 490 U.S. at 327. "Malicious," although sometimes treated as a s yn o n ym for "frivolous," "is more usefully construed as intended to harass." Lindell v . McCallum, 352 F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted). T o state a cognizable claim under the federal notice pleading system, the p la in tiff is required to provide a "short and plain statement of the claim showing that [h e ] is entitled to relief." Fed. R. Civ. P. 8(a)(2). It is not necessary for the plaintiff to plead specific facts and his statement need only "give the defendant fair notice of w h a t the . . . claim is and the grounds upon which it rests." Bell Atlantic Corp. v.

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T w o m b ly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1 9 5 7 )) . However, a complaint that offers "labels and conclusions" or "formulaic re c itatio n of the elements of a cause of action will not do." Ashcroft v. Iqbal, ___ U .S . ___, 129 S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 555). To s ta te a claim, a complaint must contain sufficient factual matter, accepted as true, "th a t is plausible on its face." Iqbal, 129 S. Ct. at 1949 (quoting Twombly, 550 U.S. a t 570). "A claim has facial plausibility when the plaintiff pleads factual content that a llo w s the court to draw the reasonable inference that the defendant is liable for the m is c o n d u c t alleged." Id. (citing Twombly, 550 U.S. at 556). The complaint

a lle g a ti o n s "must be enough to raise a right to relief above the speculative level." T w o m b ly , 550 U.S. at 555. In considering whether a complaint states a claim, courts should follow the p rin c ip le s set forth in Twombly by first, "identifying pleadings that, because they are n o more than conclusions, are not entitled to the assumption of truth." Iqbal, 129 S. C t. at 1950. Legal conclusions must be supported by factual allegations. Id. If there a re well-pleaded factual allegations, the court must, second, "assume their veracity a n d then determine whether they plausibly give rise to an entitlement to relief." Id. T o state a claim for relief under 42 U.S.C. § 1983, a plaintiff must allege that: 1) he w a s deprived of a right secured by the Constitution or laws of the United States; and 2 ) the deprivation was visited upon him by a person or persons acting under color o f state law. Buchanan-Moore v. County of Milwaukee, 570 F.3d 824, 827 (7th Cir.

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2 0 0 9 ) (citing Kramer v. Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2 0 0 4 )); see also Gomez v. Toledo, 446 U.S. 635, 640 (1980). The court is obliged to give the plaintiff's pro se allegations, "however inartfully pleaded," a liberal c o n s tru c tio n . See Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200 (2007) (q u o tin g Estelle v. Gamble, 429 U.S. 97, 106 (1976)). P L AIN T IF F 'S ALLEGATIONS A c c o rd in g to the plaintiff's amended complaint, he was first seen by Dr. Luy a t the Health Service Unit (HSU) in December of 2007 for pain in his knees, right e lb o w , and foot. (Amended Complaint at 1). After this initial meeting, Dr. Luy p re s c rib e d Ibuprofen for the plaintiff's pain. Id. Roughly a month later, on January 17, 2008, the plaintiff alleges that his pain b e c a m e "more excruciating." He contacted HSU and complained that it hurt to "w a lk , stand, or sit for long periods of time, and that on a scale of 1 through 10 the p a in is an 8." Id. at 2. Subsequently, the plaintiff was seen by HSU and was tested "fo r muscle problems." The plaintiff asserts that he was scheduled for a follow up a p p o in tm e n t on February 12, 2008, but was not brought down to the appointment. T h a t night, the plaintiff informed HSU that he was in extreme pain and that he was h a vin g trouble walking and getting up and down in his bunk. Id. at 5. On February 14, 2008, the plaintiff was told that he was scheduled to be seen b y the Health Services Manager (HSM). However, the plaintiff was not seen until m o re than a month later. During this time, the plaintiff filed three complaints with the

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H S U alleging extreme pain, difficulty walking and climbing in and out of his bunk, a n d requesting to be seen by a doctor. Id. at 5-12. On or around March 24, 2008, the plaintiff was seen by the defendant, Dr. Luy, a n d told him that he was in pain and that the ibuprofen prescribed was not working. P re s u m a b ly, Dr. Luy maintained the plaintiff's course of treatment because, on April 1 9 , 2008, the plaintiff contacted defendant Nygren stating that the ibuprofen "was not w o rkin g ." Id. at 12. As a result, Ms. Nygren placed the plaintiff on the list to see the d o c to r. On April 25, 2008, the plaintiff was seen by defendant Krashin and was told th a t "Dr. Krashin would order naproxen and place the plaintiff on a bottom bunk re s tric tio n ." Id. at 17. On May 5, 2008, someone from HSU told the plaintiff that there was no bottom b u n k restriction on record for him, but that he was scheduled for a follow up a p p o in tm e n t with Dr. Krashin. At this time, the plaintiff told HSU that he nearly fell o u t of his bunk because he was unable to put pressure on his knees. In response, th e plaintiff was told that he was scheduled for a follow up appointment in two weeks. H o w e ve r, according to the plaintiff's amended complaint, he was not seen in HSU u n til June 4, 2008, nearly one month later. Id. at 20-21. In June, the plaintiff again complained of extreme plain and told the doctor that th e naproxen was not helping. Dr. Krashin ordered x-rays for the plaintiff's right k n e e . According to the plaintiff, Dr. Krashin diagnosed him with "mild degenerative jo in t disease." Id. at 22.

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O n June 30, 2008 the plaintiff submitted another complaint stating that he was in pain and that the medication prescribed was not working. On July 16, 2008, the p la in tiff made a request to be seen by an outside doctor, but this request was d e n ie d . Id. at 23-28. On July 30, 2008, the plaintiff was seen again by Dr. Krashin and reiterated th a t the course of treatment was not working. Apparently physical therapy was o rd e re d as the plaintiff began physical therapy on his right knee on August 12, 2008. O n the fourth visit, the physical therapist stopped treatment on the plaintiff and s ta te d that he would inform the doctor that the plaintiff needs to see an orthopedic s p e c ia lis t. Id. at 30-31. On September 10, 2008, the plaintiff submitted another complaint to the HSU c o m p la in in g of pain and swelling. The plaintiff was seen by Dr. Krashin on

S e p te m b e r 25, 2008, and Dr. Krashin ordered a different pain pill in response to the p la in tiff's complaints. The plaintiff received a three months supply of the new pain m e d ic a tio n , ketoprofen. The plaintiff took this medicine until November 1, 2008, at w h ic h time he filed another complaint stating that the course of treatment was not w o rk in g and asking about when he would receive his orthopedic appointment. Id. a t 34-39. On November 16, 2008, defendant Nygren responded stating that an MD a p p o in tm e n t had been made. Id. at 40. On December 4, 2008, the plaintiff was s e e n on "sick call" by an unknown nurse and was given a referral to the doctor.

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O n December 5, 2008, Dr. Krashin x-rayed the plaintiff's left knee and ordered a steroid injection to the affected area. Id. at 43. On December 28, 2008, the p la in tiff was in extreme pain and asked the HSU for "something for the pain" and a g a in requested a bottom bunk restriction. The next day, an unknown doe

re s p o n d e d that the plaintiff had an appointment for an injection in his knee in the n e xt few weeks. Id. at 45. The plaintiff's pain medication expired on December 25, 2008. On January 1 5 , 2009, the plaintiff informed HSU that he was in extreme pain and again re q u e s te d his steroid injection. He was told that he was scheduled to see the doctor a t the earliest available appointment time. Id. at 45-47. The plaintiff then contacted defendant Nygren by filling out an inmate request fo r m , but did not receive a response. Subsequently, the plaintiff contacted

d e fe n d a n t Deputy W a rd e n Kemper stating that he was in pain and that Nygren had n o t responded to his medical needs. Id. at 48-49. The plaintiff received a response fro m Nygren on behalf of Deputy W a rd e n Kemper on February 5, 2009, stating that h e would receive his injection within one week. According to the plaintiff, Ms. Nygren a ls o indicated that "she was aware that naproxen was not very effective, but this is a ll she can send." Id. at 50-51. On February 17, 2009, the plaintiff made another complaint to HSU. On F e b ru a ry 23, 2009, Dr. Luy, who, according to the plaintiff, was supposed to a d m in is te r the plaintiff's steroid injection, called the plaintiff to HSU. However, the

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p la in tiff did not receive the injection and was instead given a tube of pain relieving ru b and sent back to his housing unit. Id. at 52-53. On March 15, 2009, the plaintiff contacted HSU again, indicating that the c o u rs e of treatment was not effective. He was told that he had an appointment in A p r il. The plaintiff made at least four more complaints before he finally was called to HSU for an appointment on April 29, 2009. This was more than seven weeks fro m his first complaint. Id. at 54-61. An unknown nurse treated the plaintiff on April 29, 2009. He was again given Ib u p ro fe n and pain relieving rub, as well as a referral was given to see an outside d o c to r. Id. at 61. On June 5, 2009, the plaintiff again contacted HSU, complaining o f pain and stating that the pain was affecting his sleep and causing emotional d istre s s . Id. at 62. The plaintiff was seen on sick call on June 6, 2009, and was told b y an unknown nurse "there was nothing she can do [for me.]" Id. at 63. The plaintiff filed a grievance against HSU complaining that pain in his knee w e n t untreated for months. Id. at 60. According to the plaintiff, on April 23, 2009, th e grievance was affirmed with modification. On June 26, 2009, two months after th e plaintiff's grievance was affirmed, the plaintiff filed a § 1983 civil rights complaint. A t the time the plaintiff filed his complaint, he still had not received the steroid in je c tio n , nor put on a bottom bunk restriction. Id. at 65. T h e plaintiff requests relief for violations of his "Eighth Amendment right to be fre e from cruel and unusual punishment." Id. at 8. He requests relief in the form of

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c o m p e n s a tio n for pain and suffering in the amount of $250,000, and he asks the c o u rt to grant him punitive damages in the amount of $250,000. In addition, the p la in tiff asks that the court grant such other relief, as it may appear the plaintiff is e n t it le d . The plaintiff names the following defendants in this action: (1) Dr. Enrique Luy; (2 ) Susan Nygren, Health Services Manager; (3) Deputy W a r d e n Kemper; (4) Dr. M a u r ic e Krashin; and (5) Jane and John Doe ­ prison employees and nurses.2 H e submits four specific Eight Amendment medical care claims: (1) Defendants' failed to adequately investigate and diagnose the s o u r c e of the plaintiff's pain (2) Defendants' ignored the plaintiff's c o m p la in ts of pain by scheduling and rescheduling appointments weeks a w a y (3) Defendants' violated Health Service policy and procedure that m a n d a te s that inmates are seen in a timely manner (4) Defendants' fa ile d to consider plaintiff's complaints, follow through with treatment m a n d a te d by a physician, and that they delayed access to adequate m e d ica l care. Id. at 8. ANALYSIS T o establish liability under the Eighth Amendment standard, a prisoner must s h o w : 1) that his medical need was objectively serious; and 2) that the official acted w ith deliberate indifference to the prisoner's health or safety. Farmer v. Brennan, 5 1 1 U.S. 825, 834 (1994); Chapman v. Keltner, 241 F. 3d 842, 845 (7th Cir. 2001);

The plaintiff has named John Doe and Jane Doe nurses and prison officials and described their involvement in the facts underlying his Eighth Amendment medical care claim. While he must eventually discover the names of the defendants, at the in forma pauperis stage of the proceedings a complaint is not subject to dismissal for failure to identify some of the defendants by name. Billman v. Ind. Dep't of Corrs., 56 F.3d 785, 789 (7th Cir. 1995).

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s e e also Estelle v. Gamble, 429 U.S. 97, 104-05 (1996); Zentmyer v. Kendall C o u n ty , Illinois, 220 F.3d 805, 810 (7th Cir. 2000). A serious medical need is "one th a t has been diagnosed by a physician as mandating treatment or one that is so o b vio u s that even a lay person would easily recognize the necessity for a doctor's a tte n tio n ." Wynn v. Southward, 251 F.3d 588, 593 (7th Cir. 2001) (quoting Gutierrez v . Peters, 111 F.3d 1364 (7th Cir. 1997)). Here, the plaintiff asserts that he was suffering from a serious medical c o n d itio n that was ultimately diagnosed as degenerative joint disease. Factors that in d ic a te a serious medical need include "the existence of an injury that a reasonable d o c to r or patient would find important and worthy of comment or treatment; the p re s e n c e of a medical condition that significantly affects an individual's daily a c tivitie s ; or the existence of chronic and substantial pain." Gutierrez v Peters, 111 F .3 d 1364, 1373 (7th Cir. 1997). The plaintiff has made sufficient pleading to meet this standard. Over the c o u rs e of nearly two years, the plaintiff complained consistently of excruciating pain in his knees. In addition, he states that the pain affected several daily activities such a s walking, sitting for an extended period of time, and climbing in and out of his bunk. N e x t, the plaintiff's claim must meet the deliberate indifference standard. A p ris o n official acts with deliberate indifference when "the official knows of and d is re g a rd s an excessive risk to inmate health or safety." Farmer, 511 U.S. at 837.

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A d d itio n a lly , prison officials act with deliberate indifference when they act "in ten tio n a lly or in a criminally reckless manner." Tesch v. County of Green Lake, 1 5 7 F.3d 465, 474 (7th Cir. 1998). Neither negligence nor even gross negligence is a sufficient basis for liability. See Salazar v. City of Chicago, 940 F.2d 233, 238 (7 th Cir. 1991). Instead, a finding of deliberate indifference requires evidence "that th e official was aware of the risk and consciously disregarded it nonetheless." C h a p m a n v. Keltner, 241 F.3d 842, 845 (7th Cir. 2001) (citing Farmer, 511 U.S. at 8 4 0 -4 2 ). In determining whether an official's conduct rises to the deliberate

in d iffe re n c e standard, a court may not look at the alleged acts of denial or delay in is o la tio n ; it "must examine the totality of an inmate's medical care." Gutierrez, 111 F .3 d at 1375. In Gutierrez, isolated incidents of delay, during ten months of prompt, e xte n s ive treatment did not amount to deliberate indifference. Id. Similarly, in D u n ig a n v. Winnebago County, the court found that "factual highlights" of neglect o ve r a month and a half of otherwise unobjectionable treatment were insufficient to a vo id summary judgment. Dunigan, 165 F. 3d 587, 591 (7th Cir. 1999). A t this juncture, the facts alleged by the plaintiff stand in contrast to those in G u tie rre z. Here, the allegations liberally construed in favor of the plaintiff are

s u ffic ie n t to allow the plaintiff to proceed under the deliberate indifference standard. S e e Erickson, 127 S. Ct. at 2200. Unlike in Gutierrez, the plaintiff's claims arise out o f consistent incidents of delay and neglect over a nearly two-year period. Indeed, th e plaintiff regularly made multiple complaints alleging that he was in excruciating

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p a in before being seen by a medical professional in the HSU. In addition, the p la in tiff claims to have been ordered medical treatment, such as a bottom bunk re s tric tio n and a steroid injection that, as of the date of filing, he had still not re c e ive d . Furthermore, according to the plaintiff, on at least three occasions he was fo rc e d to wait more than one month to receive medical treatment despite having filed s e ve ra l complaints of extreme pain and ineffectiveness of the medication he was p re s c rib e d . According to the plaintiff, his complaints were not isolated, but instead re ve a l a pattern of behavior that lasted nearly two years. Alternatively, this court must analyze whether the plaintiff has said too much. In Ciarpaglini v. Saini, 352 F.3d 328, 331 (7th Cir. 2003), the court found that the p la in tiff was not alleging that he was denied medical care, but instead found that the p la in tiff disagreed with the medical professionals about his needs. However, the C ia rp a g lin i case is dissimilar to the instant case. In Ciarpaglini, the plaintiff was "se e n by prison doctors at least ten times in three months." Id. However, here the p la in tiff is alleging that his medical care was delayed for more than one month on at le a s t three occasions and that he was denied treatment that was ordered such as a bottom bunk restriction and a steroid injection in his knee. (Plaintiff's Amended C o m p la in t). Thus, even if the court finds at this point that the plaintiff received p ro m p t medical attention, the plaintiff still has claims that arise out of the denial of tre a tm e n t that was ordered for him. At this juncture, the court finds that the plaintiff

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m a y proceed on an Eighth Amendment medical care claim against defendants Luy, N yg re n , Krashin, Jane Doe and John Doe, for delay and denial of his medical care. H o w e ve r, to the extent that the plaintiff attempts to hold any of the defendants re s p o n s ib le for the actions of their subordinates, his claims will not be allowed to p ro c e e d . Ashcroft v. Iqbal, ___ U.S. ___, 129 S. Ct. 1937 (2009) (Government o ffic ia ls may not be held liable, under Bivens or § 1983, for unconstitutional conduct o f their subordinates under theory of respondeat superior; because vicarious liability is inapplicable, plaintiff must plead that each government official-defendant, through h is or her own actions, has violated the Constitution). A ls o , in order "[t]o recover damages under § 1983, a plaintiff must establish th a t a defendant was personally responsible for the deprivation of a constitutional rig h t." Johnson v. Snyder, 444 F.3d 579, 583 (7th Cir. 2006) (quoting Gentry v. D u c k w o rth , 65 F.3d 555, 561 [7th Cir. 1995]). In order to be personally responsible, a n official "must know about the conduct and facilitate it, approve it, condone it, or turn a blind eye." Id. The Seventh Circuit has held that "`[a] prison official's

k n o w le d g e of prison conditions learned from an inmate's communication can . . . re q u ire the officer to exercise his authority and to take the needed action to in ve s tig a te, and, if necessary, to rectify the offending condition.'" Reed v. McBride, 1 7 8 F.3d 849, 854 (7th Cir. 1999) (quoting Vance v. Peters, 97 F.3d 987, 993 [7th C ir. 1996]).

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In Burks v. Raemisch, 555 F.3d 592, 594-96 (7th Cir. 2009), the Seventh C irc u it affirmed the dismissal of inmate complaint examiner for her role in rejecting th e prisoner's untimely grievance. However, the court directed the district court to re in s ta te the plaintiff's claim against the head of the medical unit so that the plaintiff c o u ld take discovery to determine what she knew and what directions she gave. Id. a t 594. Prison hospital administrators are in a position that "justifies the inference a t this [complaint] stage of the proceeding that [they do] bear some responsibility for the alleged misconduct." Antonelli v. Sheahan, 81 F.3d 1422, 1428 (7th Cir. 1996) (in te rn a l citation omitted). In this case, although defendant Kemper did not participate directly in the p la in tiff's medical care, the plaintiff avers that he "contacted Deputy W a rd e n K e m p e r" and informed Kemper that he was in pain, such that Kemper was aware of th e plaintiff's condition. Thus, at this time, the court will allow the plaintiff to proceed o n an Eighth Amendment claim against defendant Kemper for his action or inaction re g a rd in g the plaintiff. PLAINTIFF'S MOTION TO APPOINT COUNSEL Finally, the plaintiff has filed a motion to appoint counsel. Although civil litig a n ts do not have a constitutional or statutory right to appointed counsel, the court h a s the discretion to request attorneys to represent indigents in appropriate cases p u rs u a n t to 28 U.S.C. § 1915(e)(1). Pruitt v. Mote, 503 F.3d 647, 653 (7th Cir. 2 0 0 7 ); Luttrell v. Nickel, 129 F.3d 933, 936 (7th Cir. 1997) (citing Zarnes v. Rhodes,

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6 4 F.3d 285, 288 (7th Cir. 1995)). As a threshold matter, litigants must make a re a s o n a b le attempt to secure private counsel on their own. Pruitt, 503 F.3d at 654; Z a r n e s , 64 F.3d at 288. Once this threshold burden has been met, the court must a d d re s s the following question: given the difficulty of the case, does this plaintiff a p p e a r competent to try the case himself and, if not, would the presence of counsel lik e ly make a difference in the outcome of the case. Pruitt, 503 F.3d at 654-655 (c itin g Farmer v. Haas, 990 F.2d 319, 322 (7th Cir. 1993)). In this case, the plaintiff has not provided any indication that he has u n s u c c e s s fu lly attempted to obtain legal counsel on his own. Thus, he has not met th e threshold burden. Moreover, the plaintiff has provided a detailed complaint s e ttin g forth his claims, which indicates he is competent to litigate this case himself. The plaintiff's motion for appointment of counsel will be denied. A c c o r d in g ly , I T IS ORDERED that the plaintiff's motion for leave to proceed in forma p a u p e r is (Docket #2) be and the same is hereby GRANTED. IT IS FURTHER ORDERED that the plaintiff's motion to appoint counsel (D o c k e t #3) be and the same is hereby DENIED. IT IS FURTHER ORDERED that the plaintiff's motion to amend his complaint (D o c k e t #5) be and the same is hereby GRANTED. IT IS FURTHER ORDERED that the United States Marshal shall serve a copy o f the Amended Complaint, a waiver of service form, and/or summons, and a copy

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o f this order, on the following defendants: Dr. Enrique Luy, Susan Nygren, Deputy W a rd e n Kemper, Dr. Maurice Krashin, and Jane Doe and John Doe, nurses at the R a c in e Correctional Institution HSU, pursuant to Federal Rule of Civil Procedure 4. T h e plaintiff is advised that Congress requires the U.S. Marshals Service to charge fo r making or attempting such service. 28 U.S.C. § 1921(a). The current fee for w a ive r- o f-s e rv ic e packages is $8.00 per item mailed. The full fee schedule is p ro vid e d at 28 C.F.R. §§ 0.114(a)(2), (a)(3). Although Congress requires the court to order service by the U.S. Marshals Service precisely because in forma pauperis p la in t if f s are indigent, it has not made any provision for these fees to be waived e ith e r by the court or by the U.S. Marshals Service. IT IS ALSO ORDERED that the defendants shall file a responsive pleading to the Amended Complaint. IT IS ALSO ORDERED that copies of this order be sent to the warden of the in s titu tio n where the inmate is confined and to Corey F. Finkelmeyer, Assistant A tto rn e y General, W is c o n s in Department of Justice, P.O. Box 7857, Madison, W is c o n s in , 53707-7857. IT IS ALSO ORDERED that the plaintiff shall submit all correspondence and le g a l material to: Honorable Judge Stadtmueller O ffic e of the Clerk United States District Court E a s te rn District of W is c o n s in 3 6 2 United States Courthouse 5 1 7 E. W is c o n s in Avenue Milwaukee, W is c o n s in 53202 16

P L E AS E DO NOT MAIL ANYTHING DIRECTLY TO THE COURT'S C H AM B E R S . It will only delay the processing of the matter. The plaintiff is hereby notified that he is required to send a copy of every paper o r document filed with the court to the opposing parties or their attorney(s). Fed. R. C iv. P. 5(a). The plaintiff should also retain a personal copy of each document. If the p la in tiff does not have access to a photocopy machine, he may send out identical h a n d w ritte n or typed copies of any documents. The court may disregard any papers o r documents which do not indicate that a copy has been sent to each defendant or to their attorney(s). The plaintiff is further advised that failure to make a timely submission may re s u lt in the dismissal of this action for failure to prosecute. In addition, the parties must notify the Clerk of Court of any change of a d d re s s . Failure to do so could result in orders or other information not being timely d e live re d , thus affecting the legal rights of the parties. Dated at Milwaukee, W is c o n s in , this 23rd day of December, 2009. BY THE COURT:

J .P . Stadtmueller U .S . District Judge

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