Order Form (01/2005)

United States District Court, Northern District of Illinois

Name of Assigned Judge

or Magistrate Judge

Robert M. Dow, Jr. Sitting Judge if Other

than Assigned Judge

CASE NUMBER 12 C 3955 DATE 5/29/12

CASE

TITLE

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

Instructionsfor 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. Page 1 of 3
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 aremore policybased, and therefore, Plaintiff mayproceed 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 byPlaintiff, 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 anyCourt filing

to Defendants [or to defense counsel, once an attorneyhas 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. Page 2 of 3
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. Page 3 of 3