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Walter Kolak (#2011-1209077 v. Cook County

United States District Court, Northern District of Illinois


May 29, 2012

WALTER KOLAK (#2011-1209077)
v.
COOK COUNTY, ET AL.

Name of Assigned Judge Robert M. Dow, Jr. Sitting Judge if Other or Magistrate Judge than Assigned Judge

CASE TITLE

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.

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.

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.

20120529

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