Paige (ID 108422) v. Martell et al

Filing 17

MEMORANDUM AND ORDER ENTERED: The Clerk of the Court shall prepare waiver of service forms for the defendants. Plaintiff's motion for leave to file an amended complaint 12 is granted. Plaintiff's motion for leave to file a second amende d complaint 16 is granted. Plaintiff's motions for reconsideration 6 & 9 are granted insofar as the Court has ordered a Martinez report. Plaintiff's renewed motions for appointment of counsel 8 & 11 are denied at this time. Pla intiff's motions for injunctive relief 7 & 10 are denied. Plaintiff's motion for extension of time 13 is denied as moot. The Clerk of the Court shall enter the Kansas Department of Corrections as an interested party on the docket fo r the limited purpose of preparing the Martinez report ordered herein. Upon the filing of that report, the KDOC may move for termination from this action. Signed by Magistrate Judge David J. Waxse on 07/25/17. Mailed to pro se party Michael P. Paige by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

MICHAEL P. PAIGE,
Plaintiff,
v.

CASE NO.17-3056-SAC-DJW

(fnu) MARTELL, et al.,
Defendants.

MEMORANDUM AND ORDER
This matter is a civil rights action filed pursuant to 42
U.S.C. § 1983.

By order of April 19, 2017, the undersigned

directed Plaintiff to show cause why this matter should not be
dismissed for failure to state a claim upon which relief may be
granted.

By way of a response, Plaintiff twice filed the same

motion for reconsideration (Doc. #6 and 9), as well as a motion
for leave to file an amended complaint (Doc. #12), with his
proposed amended complaint as an exhibit (Doc. #14).

Plaintiff

has also filed two identical motions for injunctive relief (Doc.
#7 and 10) and a motion for extension of time (Doc. #13).

On

July 5, 2017, Plaintiff filed a motion for leave to file second
amended complaint (Doc. #16).
1

Motions for Leave to File Amended Complaints
Plaintiff has filed both a motion for leave to file an
amended

complaint

and

amended complaint.

a

motion

for

leave

to

file

a

second

In both cases, he attached his proposed

amended complaint in compliance with local court rule.

Rule

15(a)(1) of the Federal Rules of Civil Procedure provides that a
party may amend its pleading once as a matter of course within
21 days of service of the original pleading.

Rule 15(a)(2)

states that in all other cases, a party may amend its pleading
only with consent of the opposing party or with leave of court,
which should be freely given when justice requires.
defendants

have

not

Plaintiff’s motions.

yet

been

served,

the

Because the

Court

grants

The Court has also reviewed and considered

the arguments Plaintiff makes in his motion for reconsideration.
Martinez Report
In

his

second

amended

complaint,

Plaintiff

makes

substantially the same factual allegations as are summarized in
the Court’s order to show cause (Doc. #5).

However, he has

revised his claim from merely disagreeing with the diagnostic
tests that have been ordered to alleging a complete lack of
medical treatment for the Hepatitis-C virus (“HCV”).
he

should

be

treated

with

direct
2

acting

He claims

anti-viral

(“DAA”)

medication.

Plaintiff brings a single count for violation of

his Eighth Amendment “right to be free from cruel and unusual
punishment and right to adequate medical care.”

Doc. #14, p. 4.

In his motion for reconsideration, Plaintiff relies on the
reasoning

of

Abu-Jamal

v.

Wetzel,

2017

WL

34700

(M.D.

Pa.

January 3, 2017), to support his claim that Defendants have been
deliberately indifferent to his serious medical needs.

Abu-

Jamal reflects the changing landscape of the law in relation to
treatment of prisoners with HCV in light of the recent emergence
of DAA drugs.
seeking

a

In Abu-Jamal, the plaintiff was a state prisoner

preliminary

injunction

to

require

the

Pennsylvania

Department of Corrections to immediately treat his HCV infection
with

DAA

drugs.

Id.

at

*1.

The

court

had

conducted

an

evidentiary hearing on the issues in a related case brought by
the

same

issues.

plaintiff,

and

the

parties

had

fully

briefed

the

The court, in a thorough and well-reasoned opinion,

found that the plaintiff had established a reasonable likelihood
of

success

on

showing

that

the

defendants

indifferent to his serious medical need.
This

Court

also

takes

note

of

were

deliberately

Id. at *20.
Postawko

v.

Missouri

Department of Corrections, 2017 WL 1968317 (W.D. Mo. May 11,
2017), a factually similar case where one of the defendants is
Corizon, which is the contract medical provider for Missouri
prisons, as well as those in Kansas.
3

The court in Postawko

found that
form

of

“[d]espite an effective and near-certain cure in the

DAA

monitoring

drugs,

policy,

Defendants
which

follow

prolongs

the

a

prioritization
suffering

of

and

those

diagnosed with chronic HCV and allows the progression of the
disease to accelerate.
to

show

deliberate

pleading stage.”

As in Abu-Jamal, such a policy is enough

indifference,

particularly

at

the

current

Id. at *8.

The Court finds that the proper processing of Plaintiff’s
claims cannot be achieved without additional information from
appropriate
(“EDCF”).

officials

of

the

El

Dorado

Correctional

Facility

See Martinez v. Aaron, 570 F.2d 317 (10th Cir. 1978).

Accordingly, the Court orders the appropriate officials of EDCF
and the Kansas Department of Corrections to prepare and file a
Martinez report.

Once the report and Defendants’ answers have

been received, the Court can properly screen Plaintiff’s claims
under 28 U.S.C. § 1915.
Motion for Injunctive Relief
To obtain a preliminary injunction, the moving party must
demonstrate (1) a likelihood of success on the merits, (2) a
likelihood that the movant will suffer irreparable harm in the
absence of preliminary relief, (3) that the balance of equities
tips in the movant’s favor, and (4) that the injunction is in
the public interest.

Little v. Jones, 607 F.3d 1245, 1251 (10th

Cir. 2010).
4

A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.”
Inc.,

555

U.S.

7,

22

Winter v. Natural Res. Def. Council,

(2008).

A

preliminary

injunction

is

appropriate only when the movant's right to relief is clear and
unequivocal.

Schrier v. Univ. of Colo., 427 F.3d 1253, 1258

(10th Cir. 2005).

Moreover, a federal court considering a motion

for preliminary injunctive relief affecting the conditions of a
prisoner's

confinement

must

give

“substantial

weight

to

any

adverse impact on public safety” and on prison operation.

18

U.S.C. § 3626(a)(2).
The Court finds that Plaintiff has not met his burden to
show that entry of a preliminary injunction is warranted.

He

has not yet demonstrated a likelihood of success on the merits
such that his right to relief is clear and unequivocal.

For

this reason, Plaintiff's motion for injunctive relief is denied
at this time.
IT IS THEREFORE ORDERED:
(1)

The Clerk of the Court shall prepare waiver of service

forms for the defendants, pursuant to Rule 4(d) of the Federal
Rules of Civil Procedure, to be served at no cost to Plaintiff
absent a finding by the Court that Plaintiff is able to pay such
costs.

5

(2)
than

The report required herein shall be filed no later

sixty

Defendants’

(60)

days

answers

from

shall

the

be

date

filed

of

this

within

order,

and

(20)

days

twenty

following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
(3)

Officials

responsible

for

the

operation

of

the

El

Dorado Correctional Facility are directed to undertake a review
of the subject matter of the complaint:
a.

To ascertain the facts and circumstances;

b.

To consider whether any action can and should be

taken by the institution to resolve the subject matter of
the complaint; and
c.

To

determine

whether

other

like

complaints,

whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
(4)
be

Upon completion of the review, a written report shall

compiled

which

shall

be

attached

to

and

filed

with

the

defendants’ answers or responses to the complaint.

Statements

of

Copies

all

witnesses

shall

be

in

affidavit

form.

of

pertinent rules, regulations, official documents, and, wherever
appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.
incident(s)

underlying

Plaintiff’s

included.
6

Any recordings of the

claims

shall

also

be

(5)

Authorization is granted to the officials of the El

Dorado Correctional Facility to interview all witnesses having
knowledge of the facts, including the plaintiff.
(6)

No answer or motion addressed to the complaint shall

be filed until the

Martinez

report required herein has been

prepared.
(7)
Plaintiff

Discovery
has

by

received

Plaintiff
and

shall

reviewed

not

commence

Defendants’

until

answers

responses to the complaint and the report ordered herein.

or

This

action is exempted from the requirements imposed under Fed. R.
Civ. P. 26(a) and 26(f).
IT IS FURTHER ORDERED Plaintiff’s motion for leave to file
an amended complaint (Doc. # 12) is granted.
IT IS FURTHER ORDERED Plaintiff’s motion for leave to file
a second amended complaint (Doc. # 16) is granted.
IT

IS

FURTHER

ORDERED

Plaintiff’s

motions

for

reconsideration (Doc. #6 and 9) are granted insofar as the Court
has ordered a Martinez report.
IT

IS

FURTHER

ORDERED

Plaintiff’s

renewed

motions

for

appointment of counsel (Doc. #8 and 11) are denied at this time.
IT IS FURTHER ORDERED Plaintiff’s motions for injunctive
relief (Doc. #7 and 10) are denied.
IT IS FURTHER ORDERED Plaintiff’s motion for extension of
time (Doc. #13) is denied as moot.
7

IT IS FURTHER ORDERED that the Clerk of the Court shall
enter

the

Kansas

Department

of

Corrections

as

an

interested

party on the docket for the limited purpose of preparing the
Martinez report ordered herein.

Upon the filing of that report,

the KDOC may move for termination from this action.
Copies of this order shall be transmitted to Plaintiff, to
Defendants, and to the Attorney General for the State of Kansas.
IT IS SO ORDERED.
DATED:

This

25th

day

of

July,

2017,

at

Kansas.

s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge

8

Kansas

City,