Scott v. Ward et al

Filing 29

MEMORANDUM AND ORDER ENTERED: Plaintiff's claims survive the Court's screening under 28 U.S.C. § 1915A. The Clerk is directed to prepare summonses pursuant to Rule 4(c)(3) of the Federal Rules of Civil Procedure to be served upon Defendants by the U.S. Marshals at no cost to Plaintiff. Signed by District Judge John W. Lungstrum on 11/26/24. Mailed to pro se party Michael Ray Scott by regular mail. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
MICHAEL RAY SCOTT,
Plaintiff,
v.

CASE NO. 24-3095-JWL

GENE WARD, Seward County
Sheriff, et al.,
Defendants.
MEMORANDUM AND ORDER
Plaintiff brings this pro se civil rights action under 42 U.S.C. § 1983. At the time of filing,
Plaintiff was in custody at the Seward County Jail in Liberal, Kansas (“SCJ”). The Court granted
Plaintiff leave to proceed in forma pauperis. On July 1, 2024, the Court entered a Memorandum
and Order (Doc. 4) (“M&O”) finding that the proper processing of Plaintiff’s Eighth Amendment
claims could not be achieved without additional information, and directing SCJ officials to submit
a Martinez Report. The Martinez Report (Docs. 16, 18, and 20) (the “Report”) was filed, and on
October 18, 2024, the Court entered a Memorandum and Order (Doc. 24) (“M&O II”) granting
Plaintiff an opportunity to respond to the Report and to show good cause why his claims should
not be dismissed. This matter is before the Court on Plaintiff’s response (Docs. 26, 28).
Plaintiff’s claims are set forth in detail in the Court’s M&O II. In summary, Plaintiff’s
claims relate to his medical care at the SCJ and the alleged failure to properly treat his hepatitisC.

Plaintiff alleges that the withholding of Plaintiff’s necessary medical treatment constitutes

cruel and unusual punishment in violation of the Eighth Amendment. Plaintiff names Seward
County Sheriff Gene Ward and SCJ Facility Nurse Angie Davis as defendants. Plaintiff seeks
compensatory and punitive damages and unspecified injunctive relief.

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Although Plaintiff does not specify what injunctive relief he is seeking, the Court finds that
any request for injunctive relief is moot because Plaintiff is no longer housed at the SCJ. Plaintiff
was transferred to the El Dorado Correctional Facility in El Dorado, Kansas.
The findings in the Report are set forth in detail in the M&O II. In summary, the Report
acknowledges that Plaintiff was diagnosed with hepatitis-C, but states that there were no
recommendations to see a specialist or for further testing regarding Plaintiff’s hep-C, and orders
were for Plaintiff to continue with his current medication.
In his response, Plaintiff disputes the allegations in the Report. Plaintiff alleges that blood
tests done in October 2024 confirm his allegations and are “the total opposite of Dr. Riley’s
Report.” (Doc. 28, at 2.) Plaintiff maintains that at his emergency room visit on December 23,
2022, Dr. Mitchell gave his expert opinion that Plaintiff’s symptoms and liver inflammation were
due to hep-C. Id. at 3. Plaintiff claims that these findings were backed by Dr. Mohammad. Id.
Plaintiff also claims that Dr. Barron’s expert opinion was that Plaintiff’s hep-C was so advanced
now that it was causing fibrosis and cirrhosis. Id. at 4. Plaintiff also asserts that although he was
ordered to continue with his current medications, he was not allowed to take the medication due
to the SCJ’s policy prohibiting narcotic medications. Id. at 6, 11.
The Martinez report developed as a means “to ascertain whether there is a factual as well
as a legal basis for [a] prisoner’s claims.” Gee v. Estes, 829 F.2d 1005, 1007 (10th Cir. 1987). The
report “is treated like an affidavit, and the court is not authorized to accept the factual findings of
the prison investigation when the plaintiff has presented conflicting evidence.” Hall v. Bellmon,
935 F.2d 1106, 1111 (10th Cir. 1991) (citation omitted). The Court “cannot resolve material
disputed factual issues by accepting the report’s factual findings when they are in conflict with
pleadings or affidavits.” Id. at 1109. “Furthermore, ‘[a] bona fide factual dispute exists even when

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the plaintiff’s factual allegations that are in conflict with the Martinez Report are less specific or
well-documented than those contained in the report.’” Bellamy v. Kansas, 2024 WL 3718065, at
n.5 (10th Cir. Aug. 8, 2024) (unpublished) (quoting Hall, 935 F.2d at 1109).
The Court is unable to resolve the factual disputes at this stage of the proceedings and finds
that this case survives screening under 28 U.S.C. § 1915A.
IT IS THEREFORE ORDERED BY THE COURT that Plaintiff’s claims survive the
Court’s screening under 28 U.S.C. § 1915A.
IT IS FURTHER ORDERED that the Clerk is directed to prepare summonses pursuant
to Rule 4(c)(3) of the Federal Rules of Civil Procedure to be served upon Defendants by the U.S.
Marshals at no cost to Plaintiff.
IT IS SO ORDERED.
Dated November 26, 2024, in Kansas City, Kansas.
S/ John W. Lungstrum
JOHN W. LUNGSTRUM
UNITED STATES DISTRICT JUDGE

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