Paige (ID 108422) v. Martell et al
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,
(fnu) MARTELL, et al.,
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
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).
has also filed two identical motions for injunctive relief (Doc.
#7 and 10) and a motion for extension of time (Doc. #13).
July 5, 2017, Plaintiff filed a motion for leave to file second
amended complaint (Doc. #16).
Motions for Leave to File Amended Complaints
Plaintiff has filed both a motion for leave to file an
In both cases, he attached his proposed
amended complaint in compliance with local court 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.
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.
The Court has also reviewed and considered
the arguments Plaintiff makes in his motion for reconsideration.
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”).
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
January 3, 2017), to support his claim that Defendants have been
deliberately indifferent to his serious medical needs.
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.
In Abu-Jamal, the plaintiff was a state prisoner
Department of Corrections to immediately treat his HCV infection
evidentiary hearing on the issues in a related case brought by
The court, in a thorough and well-reasoned opinion,
found that the plaintiff had established a reasonable likelihood
indifferent to his serious medical need.
Id. at *20.
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.
The court in Postawko
“[d]espite an effective and near-certain cure in the
diagnosed with chronic HCV and allows the progression of the
disease to accelerate.
As in Abu-Jamal, such a policy is enough
Id. at *8.
The Court finds that the proper processing of Plaintiff’s
claims cannot be achieved without additional information from
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
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
A preliminary injunction is “an extraordinary remedy that
may only be awarded upon a clear showing that the plaintiff is
entitled to such relief.”
Winter v. Natural Res. Def. Council,
appropriate only when the movant's right to relief is clear and
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
adverse impact on public safety” and on prison operation.
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.
has not yet demonstrated a likelihood of success on the merits
such that his right to relief is clear and unequivocal.
this reason, Plaintiff's motion for injunctive relief is denied
at this time.
IT IS THEREFORE ORDERED:
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
The report required herein shall be filed no later
following receipt of that report by counsel for Defendants or as
set forth in the waiver of service, whichever is later.
Dorado Correctional Facility are directed to undertake a review
of the subject matter of the complaint:
To ascertain the facts and circumstances;
To consider whether any action can and should be
taken by the institution to resolve the subject matter of
the complaint; and
whether pending in this Court or elsewhere, are related to
this complaint and should be considered together.
Upon completion of the review, a written report shall
defendants’ answers or responses to the complaint.
pertinent rules, regulations, official documents, and, wherever
appropriate, the reports of medical or psychiatric examinations
shall be included in the written report.
Any recordings of the
Authorization is granted to the officials of the El
Dorado Correctional Facility to interview all witnesses having
knowledge of the facts, including the plaintiff.
No answer or motion addressed to the complaint shall
be filed until the
report required herein has been
responses to the complaint and the report ordered herein.
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.
reconsideration (Doc. #6 and 9) are granted insofar as the Court
has ordered a Martinez report.
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.
IT IS FURTHER ORDERED that the Clerk of the Court shall
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.
s/ David J. Waxse
DAVID J. WAXSE
U.S. Magistrate Judge
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