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Rivera v. Walker

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS


January 6, 2006

ANGEL RIVERA, PLAINTIFF,
v.
ROGER E. WALKER, JR., WARDEN MCADORY, WARDEN SPILLER, COUNSELOR FORSTRING AND MS. GRATHER, DEFENDANTS.

The opinion of the court was delivered by: Foreman, District Judge

MEMORANDUM AND ORDER

Plaintiff, formerly an inmate in the Menard Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983, for which he has paid the full $250 filing fee. He has filed a motion for appointment of counsel (Doc. 2), but he has not sought or been granted leave to proceed in forma pauperis. See 28 U.S.C. §§ 1915(a), (e)(1).*fn1 Accordingly, the motion for appointment of counsel is DENIED.

In this action, Plaintiff states that in August and September of 2003, while incarcerated at Menard, he was confined to a steel-door cell without water. He alleges that all named Defendants were aware of his situation due to his complaints and grievances, yet no action was taken to provide him with sufficient fluids. Plaintiff claims to have suffered serious dehydration, yet he was not provided with any medical treatment for his condition. Due to Defendants' refusal to provide him with drinking water, he resorted to drinking water from his toilet bowl.

In a case involving conditions of confinement in a prison, two elements are required to establish violations of the Eighth Amendment's cruel and unusual punishments clause. First, an objective element requires a showing that the conditions deny the inmate "the minimal civilized measure of life's necessities," creating an excessive risk to the inmate's health or safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994). The second requirement is a subjective element -- establishing a defendant's culpable state of mind. Id.

Applying these standards to the allegations in the complaint, the Court is unable to dismiss any portion of this action at this point in the litigation. See 28 U.S.C. § 1915(e)(2).

DISPOSITION

Because Plaintiff has not sought or been granted leave to proceed in forma pauperis in this matter, the Court will not automatically appoint the U.S. Marshal to effect service upon Defendants. See 28 U.S.C. § 1915(d); FED.R.CIV.P. 4(c)(2). Instead, IT IS PLAINTIFF'S RESPONSIBILITY TO EFFECT SERVICE UPON DEFENDANTS WALKER, McADORY, SPILLER, FORSTRING and GRATHER.

The Clerk is DIRECTED to prepare summons for Defendants WALKER, McADORY, SPILLER, FORSTRING and GRATHER. The Clerk shall forward those summons and sufficient copies of the complaint and this Order to Plaintiff so that he may effect service upon Defendants pursuant to Rule 4 of the Federal Rules of Civil Procedure.

Plaintiff is ORDERED to serve upon Defendants or, if appearance has been entered by counsel, upon that attorney, a copy of every further pleading or other document submitted for consideration by this Court. He shall include with the original paper to be filed with the Clerk of Court a certificate stating the date that a true and correct copy of any document was mailed to defendant or his counsel. Any paper received by a district judge or magistrate judge which has not been filed with the Clerk or which fails to include a certificate of service will be disregarded by the Court.

Pursuant to Local Rule 72.1(a)(2), this cause is REFERRED to a United States Magistrate Judge for further pre-trial proceedings.

Further, this entire matter is hereby REFERRED to a United States Magistrate Judge 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.

Plaintiff is under a continuing obligation to keep the Clerk and each opposing party informed of any change in his whereabouts. This shall be done in writing and not later than seven (7) days after a transfer or other change in address occurs.

IT IS SO ORDERED.

James L. Foreman DISTRICT JUDGE


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