Kolak v. Cook County IL et al

Filing 5

WRITTEN Opinion entered by the Honorable Robert M. Dow, Jr on 5/29/2012:Plaintiff's motion for leave to proceed in forma pauperis 3 is granted. The Court authorizes and orders Cook County Jail officials to deduct $17.67 from Plaintiff 9;s account, and to continue making monthly deductions in accordance with this order. The Clerk shall send a copy of this order to the supervisor of inmate trust fund accounts, Cook County Dept. of Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608. The Clerk is directed to issue summonses for Defendants Cook County, Tom Dart, Avery Hart, Mohammad Mansour, Marvin Magaya, Cynthia Jones, and Nurse Washington, and the United States Marshals Service is appointed to serve them. The Clerk shall send Plaintiff Instructions for Submitting Documents, along with a copy of this order. Plaintiff's motion for appointment of counsel 4 is denied without prejudice. (For further detail see written opinion). Mailed notice(smm)

Order Form (01/2005)

United States District Court, Northern District of Illinois
Name of Assigned Judge
or Magistrate Judge

Robert M. Dow, Jr.

CASE NUMBER

12 C 3955

CASE
TITLE

Sitting Judge if Other
than Assigned Judge

DATE

5/29/12

Walter Kolak (#2011-1209077) vs. Cook County, et al.

DOCKET ENTRY TEXT

Plaintiff’s motion for leave to proceed in forma pauperis [#3] is granted. The Court authorizes and orders Cook County
Jail officials to deduct $17.67 from Plaintiff’s account, and to continue making monthly deductions in accordance with
this order. The Clerk shall send a copy of this order to the supervisor of inmate trust fund accounts, Cook County Dept.
of Corrections Administrative Office, Division V, 2700 S. California, Chicago, IL 60608. The Clerk is directed to issue
summonses for Defendants Cook County, Tom Dart, Avery Hart, Mohammad Mansour, Marvin Magaya, Cynthia Jones,
and Nurse Washington, and the United States Marshals Service is appointed to serve them. The Clerk shall send Plaintiff
Instructions for Submitting Documents, along with a copy of this order. Plaintiff’s motion for appointment of counsel [#4]
is denied without prejudice.

O[ For further details see text below.]

Docketing to mail notices.

STATEMENT
Plaintiff, Walter Kolak, a pre-trial detainee at the Cook County Jail, has brought this pro se civil rights
action pursuant to 42 U.S.C. § 1983. Plaintiff claims that due to the unsanitary conditions at the Cook County
Jail, and the failure to institute a protocol for treating MRSA, he contracted the disease and was denied acceptable
medical care for it. More specifically, he alleges that On February 1, 2012, he noticed a raised bump on his neck
that turned out to be MRSA. The diagnosis was not made until fourteen days later, while Plaintiff was
inadequately treated by the medical Defendants and the infection spread to other parts of his body. Plaintiff also
alleges that after he returned to the jail, following his eventual treatment, he was housed in the same cell, which
had not been cleaned and disinfected while he was in treatment. Plaintiff alleges the unsanitary conditions
subjected him to the risk of reinfection.
Plaintiff’s motion for leave to proceed in forma pauperis is granted. Pursuant to 28 U.S.C. § 1915(b)(1),
Plaintiff is assessed an initial partial filing fee of $17.67. The inmate trust office at Plaintiff’s place of
incarceration is authorized and ordered to collect, when funds exist, the partial filing fee from Plaintiff’s trust
fund account and pay it directly to the Clerk of Court. After payment of the initial partial filing fee, the trust fund
officer at Plaintiff’s place of confinement is directed to collect monthly payments from Plaintiff’s trust fund
account in an amount equal to 20% of the preceding month’s income credited to the account. Monthly payments
collected from Plaintiff’s trust fund account shall be forwarded to the Clerk of Court each time the amount in the
account exceeds $10 until the full $350 filing fee is paid. All payments shall be sent to the Clerk, United States
District Court, 219 S. Dearborn St., Chicago, Illinois 60604, attn: Cashier’s Desk, 20th Floor, and shall clearly
identify Plaintiff’s name and the case number assigned to this action. The Pinckneyville inmate trust account
office shall notify transferee authorities of any outstanding balance in the event Plaintiff is transferred from the
jail to another correctional facility.

12C3955 Walter Kolak (#2011-1209077) vs. Cook County, et al.

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STATEMENT
Under 28 U.S.C. § 1915A, the Court is required to conduct a prompt initial review of prisoner complaints
against governmental entities or employees. Here, accepting Plaintiff’s factual allegations as true, the Court finds
that the complaint states a colorable cause of action under the Civil Rights Act against Defendants Cook County,
and Tom Dart for deliberate indifference to a substantial risk of serious harm. See, e.g., Rapier v. Harris, 172
F.3d 999, 1002 (7th Cir. 1999), relying on Bell v. Wolfish, 441 U.S. 520, 535 (1979). Plaintiff also states a cause
of action against Defendants Cook County, Tom Dart, Avery Hart, Mohammad Mansour, Marvin Magaya, and
Nurses Cynthia Jones and Washington for deliberate indifference to a serious medical condition. Davis v. Carter,
452 F.3d 686, 696 (7th Cir. 2006).
However, Plaintiff’s claims against Cook County, Tom Dart, and Avery Hart are solely against these
Defendants in their official capacities. Plaintiff has essentially alleged what amounts to a custom and policy of
subjecting pre-trial detainees to unconstitutional conditions of confinement that could lead to MRSA infection
or reinfection, and of failure to create and implement a policy with respect to diagnosis and treatment of MRSA.
See, e.g., Garrison v. Burke, 165 F.3d 565, 571 (7th Cir. 1999); Calhoun v. Ramsey, 408 F.3d 375, 379-380 (7th
Cir. 2005); Monell v. Dep’t. of Soc. Serv. of City of New York, 436 U.S. 658, 694 (1978). Plaintiff has alleged no
facts suggesting their direct, personal involvement in the inadequate medical treatment he received, or in the
unsanitary condition of his cell, as required by J.H. ex rel. Higgin v. Johnson, 346 F.3d 788, 793 (7th Cir. 2003),
inter alia, in order to state a claim against them in their individual capacities. Nor has Plaintiff indicated that the
alleged violation of his constitutional rights occurred at their direction or with their knowledge and consent. Id.
Section 1983 creates a cause of action based on personal liability and predicated upon fault; thus, “to be liable
under § 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).Plaintiff’s allegations against
Defendants Cook County, Dart, and Hart are more policy based, and therefore, Plaintiff may proceed against these
Defendants solely in their official capacities.
The Clerk shall issue summonses for service of the complaint on Defendants Cook County, Tom Dart,
Avery Hart, Mohammad Mansour, Marvin Magaya, Nurse Cynthia Jones, and Nurse Washington (hereinafter,
“Defendants”). The Clerk shall also send Plaintiff a Magistrate Judge Consent Form and Instructions for
Submitting Documents along with a copy of this order.
The United States Marshals Service is appointed to serve Defendants. Any service forms necessary for
Plaintiff to complete will be sent by the Marshal as appropriate to serve Defendants with process. The U.S.
Marshal is directed to make all reasonable efforts to serve Defendants. With respect to any former jail employee
who can no longer be found at the work address provided by Plaintiff, the Illinois Department of Corrections shall
furnish the Marshal with Defendant’s last-known address. The information shall be used only for purposes of
effectuating service [or for proof of service, should a dispute arise] and any documentation of the address shall
be retained only by the Marshal. Address information shall not be maintained in the Court file, nor disclosed by
the Marshal. The Marshal is authorized to mail a request for waiver of service to Defendants in the manner
prescribed by Fed. R. Civ. P. 4(d)(2) before attempting personal service.
Plaintiff is instructed to file all future papers concerning this action with the Clerk of Court in care of the
Prisoner Correspondent. Plaintiff must provide the Court with the original plus a complete judge’s copy,
including any exhibits, of every document filed. In addition, Plaintiff must send an exact copy of any Court filing
to Defendants [or to defense counsel, once an attorney has entered an appearance on behalf of Defendants]. Every
document filed with the Court must include a certificate of service stating to whom exact copies were mailed and
the date of mailing. Any paper that is sent directly to the judge or that otherwise fails to comply with these
instructions may be disregarded by the Court or returned to Plaintiff.
12C3955 Walter Kolak (#2011-1209077) vs. Cook County, et al.

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STATEMENT
Plaintiff has also filed a motion for appointment of counsel. The motion is denied. Plaintiff has no right
to counsel in a civil case. See Romanelli v. Suliene, 615 F.3d 847, 851 (7th Cir. 2010); Johnson v. Doughty, 433
F.3d 1001, 1006 (7th Cir. 2006). The case at the present time does not involve complex discovery or an
evidentiary hearing, and Plaintiff’s current pleadings indicate that he has the presence of mind and intellectual
capability to continue representing himself at this stage of the proceedings. Accordingly, his motion for the
appointment of counsel is denied without prejudice. See Pruitt v. Mote, 503 F.3d 647, 656-59. (7th Cir. 2007).
Consequently, the Court denies his motion without prejudice to renewal should the case proceed to a point that
assistance of counsel is appropriate.

12C3955 Walter Kolak (#2011-1209077) vs. Cook County, et al.

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