King v. Litscher et al

Filing 23

ORDER signed by Judge J.P. Stadtmueller on 9/28/2017: GRANTING 2 Plaintiff's Motion for Leave to Proceed Without Prepayment of the Filing Fee; DENYING 5 Plaintiff's Motion for Preliminary Injunction; DENYING 6 Plaintiff's Moti on to Appoint Counsel; DENYING as moot 11 Plaintiff's Motion for Extension of Time to Pay Filing Fee; DENYING 17 Plaintiff's Unsigned Motion for Emergency Preliminary Injunction; DENYING as moot 19 Plaintiff's Second Motion to Ap point Counsel; DENYING without prejudice 20 Plaintiff's Amended Motion to Appoint Counsel; and DENYING 21 Benjamin Biese's Motion for Leave to Appear as Next Friend. Defendants Jon Litscher, Cathy Jess, Warden Scott Eckstein, Steve Sc hueler, John Kind, Catherine Francois, Lt. Rebecca Lenz, Captain Stevens, Captain Eichstedt, CO Holmes, and Sgt. Mejia DISMISSED from action. Plaintiff PERMITTED to proceed on the following Eighth Amendment claims: failure to protect against defenda nts Tietge, Koeller, Loose, Wheaton, Friedel, Elsinger, Rozmarynoski, and Cushing; deliberate indifference against defendants Schultz and Lemens; and as to treatment against defendants Ankarlo, Schmidt, Meyer, and Stonefeld. Copies of Plaintiff' ;s Complaint and this Order to be electronically SENT to the Wisconsin DOJ for service on remaining defendants, who shall FILE a responsive pleading within 60 days. Agency having custody of Plaintiff to COLLECT balance of filing fee in accordance wit h this Order. Parties may not begin discovery until Court enters scheduling order; case to be RETURNED to Magistrate Judge William E. Duffin for further proceedings. See Order. (cc: all counsel, via mail to Aerion C. King and Warden at Green Bay Correctional Institution) (jm)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WISCONSIN
AERION C. KING,

v.

Plaintiff,

Case No. 17-CV-201-JPS-JPS

JON LITSCHER, CATHY JESS,
WARDEN SCOTT ECKSTEIN,
STEVE SCHUELER, JOHN KIND,
CATHERINE FRANCOIS, DR. GARY
ANKARLO, DR. SCHMIDT,
DR. MEYER, DR. STONEFELD,
CO LOOSE, CO WHEATON,
CO HOLMES, CO TIETGE,
SGT. MEJIA, SGT. FRIEDEL,
SGT. KOELLER, TONIA
ROZMARYNOSKI, MICHAEL
SCHULTZ, JAMES ELSINGER,
LT. CUSHING, LT. REBECCA LENZ,
CAPTAIN STEVENS, CAPTAIN
EICHSTEDT, and KATHY LEMENS,
Defendants.
On February 14, 2017, plaintiff Aerion C. King, a state prisoner,
filed a pro se complaint under 42 U.S.C. § 1983, along with a motion for
leave to proceed without prepayment of the filing fee (in forma pauperis), a
motion for preliminary injunction, and a motion to appoint counsel.
(Docket #1, #2, #5, #6). The case was assigned to United States Magistrate
Judge William E. Duffin, and the plaintiff consented to jurisdiction by a
magistrate judge on February 27, 2017. (Docket #10). The plaintiff later
filed a motion for extension of time to pay the filing fee and an unsigned
motion for emergency preliminary injunction. (Docket #11, #17). The

defendants have not been served with the complaint and, therefore, have
not had an opportunity to consent to magistrate jurisdiction. Accordingly,
the case was referred to this Court on July 13, 2017, for screening of the
complaint and resolution of the pending motions. After the case was
referred, the plaintiff filed a motion to recruit counsel and an amended
motion to recruit counsel, (Docket #19, #20), and another inmate filed a
motion for leave to appear as next friend for the plaintiff, (Docket #21). All
of these matters are now before this Court. The case will be returned to
Magistrate Judge Duffin after entry of this Order.
1.

Motions Regarding Filing Fee
The plaintiff has been assessed and paid an initial partial filing fee

of $1.67, see 28 U.S.C. § 1915(b)(1), and the court will grant the plaintiff’s
request to proceed in forma pauperis. (Docket #2). The court will deny as
moot the plaintiff’s motion for extension of time to pay the filing fee
because the Court received the initial partial filing fee before the motion.
(Docket #3).
2.

Screening of Plaintiff’s Complaint
The Court shall screen complaints brought by prisoners seeking

relief against a governmental entity or an officer or employee of a
governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a
complaint or portion thereof if the prisoner 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 defendant who is
immune from such relief. Id. § 1915A(b).
A claim is legally frivolous when it lacks an arguable basis either in
law or in fact. Denton v. Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex rel. Baker v. Spink, 126 F.3d
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895, 900 (7th Cir. 1997). The Court may, therefore, dismiss a claim as
frivolous where it is based on an indisputably meritless legal theory or
where the factual contentions are clearly baseless. Neitzke, 490 U.S. at 327.
“Malicious,” although sometimes treated as a synonym for “frivolous,” “is
more usefully construed as intended to harass.” Lindell v. McCallum, 352
F.3d 1107, 1109-10 (7th Cir. 2003) (citations omitted).
To state a cognizable claim under the federal notice pleading
system, the plaintiff is required to provide a “short and plain statement of
the claim showing that [he] 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 what the . . . claim is and the
grounds upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). However, a
complaint that offers mere “labels and conclusions” or a “formulaic
recitation of the elements of a cause of action will not do.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Twombly, 550 U.S. at 555). To state a
claim, a complaint must contain sufficient factual matter, accepted as true,
“that is plausible on its face.” Id. (quoting Twombly, 550 U.S. at 570). “A
claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
The complaint’s allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550 U.S. at 555 (citation omitted).
In considering whether a complaint states a claim, courts should
follow the principles set forth in Twombly by first, “identifying pleadings
that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Iqbal, 556 U.S. at 679. Legal conclusions must be
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supported by factual allegations. Id. If there are well-pleaded factual
allegations, the Court must, second, “assume their veracity and then
determine whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for relief under 42 U.S.C. § 1983, a plaintiff must
allege that: 1) he was 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 of state law. Buchanan-Moore v.
County of Milwaukee, 570 F.3d 824, 827 (7th Cir. 2009) (citing Kramer v.
Village of North Fond du Lac, 384 F.3d 856, 861 (7th Cir. 2004)); 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
construction. See Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v.
Gamble, 429 U.S. 97, 106 (1976)).
Plaintiff’s complaint presents claims regarding the mental health
treatment he received at Green Bay Correctional Institution and the failure
of some of the defendants to prevent the plaintiff from harming himself.
Between October and December 2016, the plaintiff had several instances of
self-harm.
In the first instance, defendants CO Tietge and Sgt. Koeller watched
the plaintiff cut himself and overdose on medication. A policy requires
staff members to stay at the cell door until assistance arrives after an
inmate expresses self-harm. The plaintiff’s life was at risk because these
defendants violated that policy; he was allowed to engage in self-harm.
In a second instance, defendant CO Loose left a hard plastic
medication cup with the plaintiff while he was on observation status with
a restriction on the possession of sharp objects, even after the plaintiff told
Loose he was going to cut himself. Loose walked away, and the plaintiff
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began to cut himself. Another officer who is not a defendant observed the
plaintiff’s actions and got him medical attention.
On a third occasion, defendants CO Wheaton and Sgt. Friedel
observed the plaintiff taking an overdose of medication and did not stop
him. The plaintiff was sent to the emergency room, treated, and sent back
to observation. The plaintiff then started to hit his head while defendant
James Elsinger watched. The plaintiff believes this was preventable
because interventions such as crisis psychological services or emergency
transfer to the Wisconsin Resource Center (“WRC”) could have been used.
In what seems to be a fourth incident, the plaintiff alleges that
defendant Tonia Rozmarynoski failed to protect the plaintiff when he
overdosed on medication, cut himself, and banged his head repeatedly.
The plaintiff also believes defendants Elsinger and Lt. Cushing
subsequently mishandled the incident by not ordering an emergency
transfer to the WRC.
On a fifth occasion, defendants Michael Schultz and Kathy Lemens
allowed the plaintiff to remain in bed restraints for four hours with a tiedown mechanism cutting the plaintiff’s ankle, causing the plaintiff
extreme pain.
The plaintiff requested medication related to ADHD multiple
times, but the nature of the medication requires a special evaluation.
Defendants Dr. Ankarlo and Dr. Schmidt never performed the evaluation,
even though a non-defendant Dr. Zirbel has attempted to secure this
evaluation and treatment for the plaintiff. Most recently, the plaintiff
spoke to defendant Dr. Gary Meyer, who denied the ADHD medications
and instead prescribed anti-psychotic medications that the plaintiff
believes are inconsistent with his diagnosis and harmful to his system.
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The plaintiff’s mental health continues to deteriorate while he
remains in segregation. He is “sometimes wholly unaware of the
consequences of his actions,” which result in an extended segregation
term. (Docket #1 at 13). According to the plaintiff, all the defendants are
aware of the long-term risks of segregation, and a continued stay in
segregation is detrimental to the plaintiff’s overall mental health. The
plaintiff says that he is in need of care and long-term treatment.
The plaintiff seeks monetary and injunctive relief, including a
mental health evaluation, permanent mental health housing, and the
assignment of a monitor.
Plaintiff’s claims implicate his Eighth Amendment rights in several
ways. First, to state a failure to protect claim, a plaintiff must allege that
the correctional officers knew that he faced a substantial risk of serious
harm and deliberately disregarded that risk. Key v. Kelitwenzew, 630 Fed.
Appx. 620, 623 (7th Cir. 2015) (citing Estate of Miller, ex rel. Bertram v.
Tobiasz, 680 F.3d 984, 989 (7th Cir. 2012)). The plaintiff may proceed on
Eighth Amendment claims against defendants Tietge, Koeller, Loose,
Wheaton, Friedel, Elsinger, Rozmarynoski, and Cushing that they failed to
protect the plaintiff from harming himself.
Second, the plaintiff may proceed on an Eighth Amendment claim
against defendants Schultz and Lemens that keeping the plaintiff in
restraints that were causing him pain was deliberate indifference. Prison
officials are deliberately indifferent to deprivations suffered by inmates if
they have knowledge of the condition but refuse to take steps to correct it.
Dixon v. Godinez, 114 F.3d 640, 645 (7th Cir. 1997).
Third, the plaintiff may proceed on Eighth Amendment claims
against defendants Ankarlo, Schmidt, Meyer, and Stonefeld regarding the
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mental health treatment (or lack thereof) that he received. It is well settled
that the Eighth Amendment protects the mental health of prisoners no less
than their physical health. See, e.g., Meriwether v. Faulkner, 821 F.2d 408, 413
(7th Cir. 1987); Wellman v. Faulkner, 715 F.2d 269, 272 (7th Cir. 1983). The
plaintiff includes specific instances of decisions made by Ankarlo,
Schmidt, and Meyer. The Court has also included Stonefeld at this early
stage in the litigation because of the plaintiff’s allegations of “systemic
failure” regarding his mental health treatment.
The plaintiff has not alleged personal involvement by the eleven
other defendants named in his complaint: Jon Litscher, Cathy Jess,
Warden Scott Eckstein, Steve Schueler, John Kind, Catherine Francois, Lt.
Rebecca Lenz, Captain Stevens, Captain Eichstedt, CO Holmes, and Sgt.
Mejia. The plaintiff attempts to include these defendants by making
statements on pages five and six of his complaint regarding supervisory
liability and the failure to train or oversee treatment of inmates. That is not
enough.
Section 1983 limits liability to public employees who are personally
responsible for a constitutional violation. Burks v. Raemisch, 555 F.3d 592,
595-96 (7th Cir. 2009). For liability to attach, the individual defendant
must have caused or participated in a constitutional violation. Hildebrandt
v. Ill. Dept. of Natural Resources, 347 F.3d 1014, 1039 (7th Cir. 2003). With
regard to supervisors, the personal responsibility requirement is satisfied
if the constitutional deprivation occurs at the supervisor’s direction or
with the supervisor’s knowledge and consent. Id. In other words, the
supervisor “must know about the conduct and facilitate it, approve it,
condone it, or turn a blind eye.” Id. (quoting Gentry v. Duckworth, 65 F.3d
555, 561 (7th Cir. 1995)).
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The Court will dismiss defendants Litscher, Jess, Eckstein, Schueler,
Kind, Francois, Lenz, Stevens, Eichstedt, Holmes, and Mejia. The Court
also confirms that the defendants who have not been dismissed are only
liable for their own participation in the alleged constitutional violations.
They are not liable as supervisors.
3.

Plaintiff’s Motions Regarding Injunctive Relief
The Court will now consider the plaintiff’s motions for injunctive

relief, including his motion for preliminary injunction, (Docket #5), his
unsigned motion for emergency preliminary injunction, (Docket #17), and
the supplement to the motion for preliminary injunction, (Docket #22).
To obtain preliminary injunctive relief, the plaintiff must show that
(1) his underlying case has some likelihood of success on the merits, (2) no
adequate remedy at law exists, and (3) he will suffer irreparable harm
without the injunction. Wood v. Buss, 496 F.3d 620, 622 (7th Cir. 2007). If
those three factors are shown, the Court must then balance the harm to
each party and to the public interest from granting or denying the
injunction. Id.; Korte v. Sebelius, 735 F.3d 654, 665 (7th Cir. 2013); Cooper v.
Salazar, 196 F.3d 809, 813 (7th Cir. 1999). A preliminary injunction is “an
extraordinary remedy that may only be awarded upon a clear showing
that the plaintiff is entitled to such relief.” Winter v. Natural Res. Def.
Council, 555 U.S. 7, 22 (2008) (citing Mazurek v. Armstrong, 520 U.S. 968, 972
(1997) (per curiam)).
In his original motion for preliminary injunction, (Docket #5),
which is unsworn and not supported by any declarations or affidavits, the
plaintiff seeks an immediate mental health evaluation and placement at a
mental health facility. He concludes generally that his overall mental

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health is failing at a traditional prison and refers to his complaint for
evidence of his likelihood of success.
The plaintiff’s unsworn supplement to his preliminary injunction
motion, (Docket #22), asserts that the plaintiff’s primary psychologist can
provide only crisis care and that the psychological services at Green Bay
Correctional Institution cannot be adequate because they have open
positions and no supervisor. The plaintiff alleges imminent danger and
points to one instance when he was placed in a “tie down bed.” (Docket
#22 at 2). Once again, the plaintiff seeks an independent mental health
evaluation, an immediate transfer to a mental health facility, and an
injunction prohibiting the plaintiff from returning to a traditional
maximum-security institution.1 The plaintiff’s motion for preliminary
relief must be denied.
First, the Court generally will not interfere in matters of prison
administration through preliminary injunctive relief. In fact, Congress has
expressly cautioned against it. The PLRA provides, in pertinent part, that
in considering the need for preliminary injunctive relief, “[t]he court shall
give substantial weight to any adverse impact on public safety or the
operation of a criminal justice system caused by the preliminary relief[.]”
18 U.S.C. § 3626(a)(2). The Court’s reluctance is particularly keen in this
case, for despite the plaintiff’s complaint that the defendants are

The plaintiff also filed an unsigned motion for emergency preliminary
injunction, (Docket #17), in which he asserts that he has done additional selfharm by cutting himself with a razor, that he had to be placed in eight-point bed
restraints, that he is receiving only limited mental health care (no group therapy
or intense individual counseling), and that the lack of programming is due to
vacant psychological positions. Although the plaintiff goes into more detail in
this unsigned motion and attaches some exhibits, the Court cannot consider an
unsigned motion. See Fed. R. Civ. P. 11(a). This motion will be denied.
1

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mistreating his mental health disorders, the Court itself lacks expertise in
such matters.
Nor is the Court confident that it should, based on the plaintiff’s
word alone, implement his proposals. The PLRA instructs that
“[p]reliminary injunctive relief must be narrowly drawn, extend no
further than necessary to correct the harm the court finds requires
preliminary relief, and be the least intrusive means necessary to correct
that harm.” Id. The plaintiff’s opinion on the proper way to
simultaneously incarcerate him and treat his mental health does not meet
this standard. Faced with a difficult situation in which an inmate seeks to
engage in self-harm nearly constantly, the Court will instead defer to the
sound judgment of prison officials. See Bowers v. Pollard, 602 F. Supp. 2d
977, 993 (E.D. Wis. 2009) (noting that constantly suicidal inmate presented
prison officials with “a dilemma with no easy options”).
Moreover, the plaintiff has not satisfied the requisite standards for
the relief he seeks. His submissions do not meet the high threshold
required for the entry of preliminary injunctive relief, since he has not
shown a likelihood of success on the merits of his case or that the
irreparable harm he fears is likely to occur in the absence of Court
intervention. See D.U. v. Rhoades, 825 F.3d 331, 335 (7th Cir. 2016); Winter,
555 U.S. at 22 (a preliminary injunction requires a “clear showing that [the
plaintiff] is entitled to such relief”). The mere possibility of continuing
deliberate indifference to his risk of self-harm is not sufficient, standing
alone, to warrant such relief.
4.

Plaintiff’s Motions Regarding Counsel
Next, the Court considers the plaintiff’s motions regarding

appointment of counsel. The plaintiff filed his first motion to recruit
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counsel, (Docket #6), with his complaint, citing 18 U.S.C. § 3006A and
arguing that the recruitment of counsel is in the interests of justice.
However, § 3006A applies only to criminal cases and petitions for writs of
habeas corpus, not civil rights cases. The plaintiff argues that he is
mentally ill and unable to complete the filings in this case, and that he
relies on another inmate to assist him. The plaintiff further states that his
competence is in question and that he would be unable to complete tasks
such as evidence gathering and preparing and responding to motions. The
plaintiff submits that he has made a reasonable attempt to obtain counsel,
but he provides no information regarding those attempts.
In his second motion asking the Court to recruit counsel, (Docket
#19), dated July 28, 2017, and filed August 4, 2017, the plaintiff argues that
he is mentally ill, that he knows nothing about federal civil practice, and
that it is difficult for him to receive inmate assistance. The plaintiff
provides a list of five attorneys he contacted on either July 23 or 25, 2017,
and notes that “no positive responses have followed.” (Docket #19 at 2).
The plaintiff suggests that both his cases (this case and Case No. 17-cv205) are complex and may require expert witnesses, that both cases have
merit, and that counsel could make sure that procedures are followed so
the cases have a reasonable chance of success.
The plaintiff’s amended motion to recruit counsel, (Docket #20),
filed August 16, 2017, provides additional legal argument. The plaintiff
also asserts that he was a special-needs student within the Wisconsin
Department of Corrections and that the chances of him being able to
adequately investigate and present the case without assistance are poor.
The plaintiff emphasizes his serious mental illness, including explosive
and impulse control issues that many times lead to self-harm and inability
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to function properly. The plaintiff further details his attempts to contact
attorneys and the responses he received.
In a civil case, the Court has discretion to decide whether to recruit
a lawyer for someone who cannot afford one. Navejar v. Iyola, 718 F.3d 692,
696 (7th Cir. 2013); 28 U.S.C § 1915(e)(1); Ray v. Wexford Health Sources, Inc.,
706 F.3d 864, 866-67 (7th Cir. 2013). First, however, the person has to make
a reasonable effort to hire private counsel on his own. Pruitt v. Mote, 503
F.3d 647, 653 (7th Cir. 2007). After the plaintiff makes that reasonable
attempt to hire counsel, the court then must decide “whether the difficulty
of the case—factually and legally—exceeds the particular plaintiff’s
capacity as a layperson to coherently present it.” Navejar, 718 F.3d at 696
(citing Pruitt, 503 F.3d at 655). To decide that, the Court looks not only at
the plaintiff’s ability to try his case, but also at his ability to perform other
“tasks that normally attend litigation,” such as “evidence gathering” and
“preparing and responding to motions.” Id.
The Court will deny the plaintiff’s first motion to recruit counsel
because he did not provide information regarding attempts to secure
counsel on his own. (Docket #6). The Court will deny as moot the second
motion, (Docket #19), because it was superseded by the amended motion,
(Docket #20), but the Court will consider the arguments set forth together
in the second and amended motions as part of the amended motion.
Ultimately, though, the Court will deny the plaintiff’s amended motion
for appointment of counsel at this early stage in the litigation.
At this stage, the Court has before it a complaint that clearly sets
forth the plaintiff’s claims against the defendants and a number of
motions that cite the proper case law and present legal issues in the
proper framework. Although the plaintiff indicates (as does non-party
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Benjamin Biese, who requests leave to appear as the plaintiff’s “next
friend”) that the plaintiff has received assistance in preparing these
documents, there is no indication that the plaintiff will be unable to
receive assistance in the future. Additionally, it would be premature for
the Court to determine at this stage whether the plaintiff will be able to
litigate this case. There is nothing the plaintiff needs to do during this
stage of the case until the defendants answer and the Court enters a
scheduling order. If later in the case the plaintiff shows he is unable to
litigate his case, he is free to file another motion seeking the appointment
of counsel that provides the Court with the requisite evidence that he is
entitled to such appointment.
5.

Motion for Leave to Appear as Next Friend
On August 17, 2017, inmate Benjamin Biese (“Biese”) filed a motion

asking to appear as “next friend” for the plaintiff in this case. (Docket #21).
Biese represents that he has known the plaintiff since May 2015, that he is
personal friends with the plaintiff and his family, that he has a genuine
interest in a positive outcome for the plaintiff, and that the plaintiff has
mental issues that prevent him from assisting himself. Biese indicates that
he has been the author of the “actions” in this case, but it is extremely
difficult to get actions to the plaintiff to sign and file. According to Biese,
the plaintiff is in “dire need of assistance” and a renewed motion to
recruit counsel and an updated injunction motion must be filed.
Despite Biese’s alleged best interests, the Court will deny this
motion because a non-lawyer may not represent a pro se litigant before this
Court. Under Federal Rule of Civil Procedure 11(a), “[e]very pleading,
written motion, and other paper must be signed by at least one attorney of
record in the attorney’s name—or by a party personally if the party is
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unrepresented.” Biese may continue to assist the plaintiff, but the plaintiff
must review, sign, and submit documents and motions to be filed with the
Court.
The Court is also concerned that some of the motions filed in this
case (with and without signatures) were not actually signed by the
plaintiff, but by Biese for the plaintiff. The plaintiff’s signature on his
complaint and original motions seems to differ from the signature on the
motions filed in August 2017. The Court cautions plaintiff that he must
review, sign, and submit all documents filed with this Court. His failure to
do so may result in sanctions, including dismissal of this case.
Accordingly,
IT IS ORDERED that the plaintiff’s motion for leave to proceed
without prepayment of the filing fee (Docket #2) be and the same is hereby
GRANTED;
IT IS FURTHER ORDERED that the plaintiff’s motion for a
preliminary injunction (Docket #5) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the plaintiff’s motion to appoint
counsel (Docket #6) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the plaintiff’s motion for
extension of time to pay the filing fee (Docket #11) be and the same is
hereby DENIED as moot;
IT IS FURTHER ORDERED that the plaintiff’s unsigned motion
for an emergency preliminary injunction (Docket #17) be and the same is
hereby DENIED;
IT IS FURTHER ORDERED that the plaintiff’s second motion to
recruit counsel (Docket #19) be and the same is hereby DENIED as moot;

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IT IS FURTHER ORDERED that the plaintiff’s amended motion to
recruit counsel (Docket #20) be and the same is hereby DENIED without
prejudice;
IT IS FURTHER ORDERED that Benjamin Biese’s motion for leave
to appear as next friend (Docket #21) be and the same is hereby DENIED;
IT IS FURTHER ORDERED that the following individuals be and
the same are hereby DISMISSED as defendants in this case: Jon Litscher,
Cathy Jess, Warden Scott Eckstein, Steve Schueler, John Kind, Catherine
Francois, Lt. Rebecca Lenz, Captain Stevens, Captain Eichstedt, CO
Holmes, and Sgt. Mejia;
IT IS FURTHER ORDERED that, pursuant to an informal service
agreement between the Wisconsin Department of Justice and this Court,
copies of plaintiff’s complaint and this Order are being electronically sent
today to the Wisconsin Department of Justice for service on the following
state defendants: Dr. Gary Ankarlo, Dr. Schmidt, Dr. Meyer, Dr. Stonefeld,
CO Loose, CO Wheaton, CO Tietge, Sgt. Friedel, Sgt. Koeller, Tonia
Rozmarynoski, Michael Schultz, James Elsinger, Lt. Cushing, and Kathy
Lemens;
IT IS FURTHER ORDERED that, pursuant to the informal service
agreement between the Wisconsin Department of Justice and this Court,
the defendants who are served shall file a responsive pleading to the
complaint within sixty (60) days of receiving electronic notice of this
Order;
IT IS FURTHER ORDERED that the agency having custody of the
plaintiff shall collect from his institution trust account the $348.33 balance
of the filing fee by collecting monthly payments from the plaintiff’s prison
trust account in an amount equal to 20% of the preceding month’s income
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credited to the plaintiff’s trust account and forwarding payments to the
Clerk of Court each time the amount in the account exceeds $10 in
accordance with 28 U.S.C. § 1915(b)(2). The payments shall be clearly
identified by the case name and number assigned to this action. If the
plaintiff is transferred to another institution, county, state, or federal, the
transferring institution shall forward a copy of this Order along with the
plaintiff’s remaining balance to the receiving institution;
IT IS FURTHER ORDERED that a copy of this Order be sent to the
officer in charge of the agency where the plaintiff is confined;
IT IS FURTHER ORDERED that the parties may not begin
discovery until after the Court enters a scheduling order setting deadlines
for discovery and dispositive motions;
IT IS FURTHER ORDERED that, pursuant to the Prisoner E-Filing
Program, the plaintiff shall submit all correspondence and case filings to
institution staff, who will scan and e-mail documents to the Court. The
Prisoner E-Filing Program is mandatory for all inmates of Dodge
Correctional Institution, Green Bay Correctional Institution, Waupun
Correctional Institution, Wisconsin Secure Program Facility, Columbia
Correctional Institution, and Oshkosh Correctional Institution. If the
plaintiff is no longer incarcerated at a Prisoner E-Filing institution, he will
be required to submit all correspondence and legal material to:
Office of the Clerk
United States District Court
Eastern District of Wisconsin
362 United States Courthouse
517 E. Wisconsin Avenue
Milwaukee, Wisconsin 53202

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The Court further advises the plaintiff that failure to make a timely
submission may result in the dismissal of this action for failure to
prosecute. In addition, the parties must notify the Clerk of Court of any
change of address. Failure to do so could result in orders or other
information not being timely delivered, thus affecting the legal rights of
the parties; and
IT IS FURTHER ORDERED that this case be and the same is
hereby REFERRED back to Magistrate Judge William E. Duffin for further
proceedings.
Dated at Milwaukee, Wisconsin, this 28th day of September, 2017.
BY THE COURT:

____________________________________
J. P. Stadtmueller
U.S. District Judge

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