Postawko v. Corizon Medical Services et al

Filing 244

ORDER entered by Judge Nanette K. Laughrey. The motions for appointment of counsel, Doc. 222 , and for injunctive relief, Doc. 223 , are denied. Signed on 1/24/2019 by District Judge Nanette K. Laughrey. (Filer will mail a copy of this order to Darrin Walker via regular mail.) (Levy, Lindsey)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MISSOURI
CENTRAL DIVISION
MICHAEL POSTAWKO,
CHRISTOPHER BAKER, and MICHAEL
JAMERSON,
On behalf of themselves and a class of
similarly situated individuals,
Plaintiffs,
v.
MISSOURI DEPARTMENT OF
CORRECTIONS, et al.,
Defendants.

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Case No. 2:16-cv-04219-NKL

ORDER
Darrin Walker, a pro se inmate in the custody of the Missouri Department of Corrections
(“MDOC”), seeks appointment of counsel and injunctive relief in this class action. For the reasons
discussed below, Mr. Walker’s motions for appointment of counsel, Doc. 222, and injunctive
relief, Doc. 223, are denied.
I.

Background
Three inmates in MDOC’s custody, Michael Postawko, Christopher Baker, and Michael

Jamerson, bring this suit pursuant to 42 U.S.C. § 1983, alleging that they were denied direct-acting
antiviral (“DAA”) drugs for treatment of their chronic hepatitis C (“HCV”). On July 26, 2017, the
Court certified a class of plaintiffs comprised of inmates in MDOC custody with chronic HCV
who have not received DAA medications. Doc. 174, p. 7. Plaintiffs seek a declaratory judgment
that Defendants’ “policy of withholding treatment with DAA drugs from inmates diagnosed with
HCV violates the Eighth and Fourteenth Amendments” and the Americans with Disabilities Act.
Doc. 30 (Second Amended Complaint), ¶¶ 136, 144. Plaintiffs also seek injunctions directing

Defendants to (1) “formulate and implement an HCV treatment policy that meets the prevailing
standard of care, including identifying persons with HCV”; (2) “treat members of the Class with
appropriate DAA drugs”; and (3) “provide members of the class an appropriate and accurate
assessment of the level of fibrosis or cirrhosis they have, counseling on drug-drug interactions,
and ongoing medical care for complications and symptoms of HCV.” Id. Defendants appealed,
Doc. 181, and on December 6, 2018, the Eighth Circuit Court of Appeals affirmed class
certification in this case. Doc. 215-1.
Shortly thereafter, Mr. Walker filed a declaration, Doc. 221, a motion for appointment of
counsel, Doc. 222, and a motion for an injunction ordering “defendants to begin immediate
Hepatitis C cure treatment on [him],” Doc. 223, p. 1. Mr. Walker subsequently filed a certificate
of service, Doc. 224, and supplement, Doc. 232.
The Eighth Circuit denied Defendants’ petition for rehearing and petition for rehearing en
banc on January 11, 2019. Doc. 243.
II.

Discussion
Mr. Walker requests that the Court appoint him counsel in this case or “direct current class

Action counsel to represent [him]” in his efforts “to get an Injunction or TRO in order to obtain
the Hep C cure, to modify [the] claim[s raised] to include damages awards against defendants on
[his] behalf, and to obtain life-saving treatment to include a living donor liver transplant.” Doc.
222, p. 1. Mr. Walker also requests that the Court order “defendants to begin immediate Hepatitis
C cure treatment on [him].” Doc. 223, p. 1.
However, the Court has certified, and the Eighth Circuit has affirmed, a plaintiff class,
under Federal Rule of Civil Procedure 23(b)(2), comprised of “individuals in the custody of
MDOC, now or in the future, who have been, or will be, diagnosed with chronic HCV, as that term

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is defined medically, but who are not provided treatment with direct acting antiviral drugs.” Doc.
174, p. 7. In both of Mr. Walker’s pro se motions he concedes that he falls within the class of
individuals represented by counsel in this matter1—he is confined in the MDOC at Jefferson City
Correctional Center and, according to his pleadings, has been diagnosed with chronic HCV. Doc.
221, p. 1; Doc. 222, p. 1; Doc. 223, p. 1.
It is the policy of the Court “not to consider pro se filings when a party is represented by
counsel.” United States v. Trimble, No. 15-4004-01-CR-C-BCW, 2016 U.S. Dist. LEXIS 14277,
at *1 (W.D. Mo. Jan. 19, 2016), report and recommendation adopted, 2016 U.S. Dist. LEXIS
14276 (W.D. Mo. Feb. 5, 2016); United States v. Martin, 59 F.3d 767, 768 n.2 (8th Cir. 1995)
(“[I]t is Eighth Circuit policy to refuse to consider pro se filings when a party is represented by
counsel[.]” (quoting Hoggard v. Purkett, 29 F.3d 469, 472 (8th Cir. 1994))).
But even if the Court were to construe Mr. Walker’s filings as a request to intervene, the
Court would deny Mr. Walker’s motions because he does not suggest that the named plaintiffs are
inadequate representatives of the class of inmates to which he purportedly belongs. See Fed. R.
Civ. P. 24(a) (providing that intervention is not required if “existing parties adequately represent”
the proposed intervenor’s interest); see also In re Uponor, Inc., F1807 Plumbing Fittings Prod.
Liab. Litig., 716 F.3d 1057, 1066 (8th Cir. 2013) (“We have . . . presumed that representation is
adequate when the individual ‘attempting to intervene is a member of a class already involved in
the litigation[.]’” (quoting Jenkins by Jenkins v. Missouri, 78 F.3d 1270, 1275 (8th Cir. 1996)));

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The Federal Rules do not provide an opportunity for members of a Rule 23(b)(2) class, seeking
only declaratory and injunctive relief, to opt out of the class. Wal-Mart Stores, Inc. v. Dukes, 564
U.S. 338, 363 (2011) (“[23](b)(2) does not require that class members be given notice and opt-out
rights, presumably because it is thought (rightly or wrongly) that notice has no purpose when the
class is mandatory[.]”); Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1035 (8th Cir. 2010)
(“[U]nlike Rule 23(b)(3), there is no provision [in 23(b)(2)] for unnamed class members to opt out
of the litigation.”).
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Mid-Century Ins. Co. v. Nichols, No. 4:12-CV-235 CAS, 2012 WL 2684991, at *2 (E.D. Mo. July
6, 2012) (denying motion to intervene where the proposed intervenor “failed to address with any
specificity why its interest is not adequately represented by the existing parties.”). The class
representatives here are presumed adequate, given that both the class representatives and Mr.
Walker have the same ultimate objective—obtaining HCV treatment with DAA drugs. In re
Uponor, Inc., F1807 Plumbing Fittings Prod. Liab. Litig., No. 11-MD-2247 ADM/JJK, 2012 WL
2325798, at *4 (D. Minn. June 19, 2012), aff’d, 716 F.3d 1057 (8th Cir. 2013) (concluding
adequate representation where class representatives and proposed intervenor shared the same
“ultimate objective”).
Mr. Walker’s desire to pursue individual monetary damages also does not overcome the
presumption of adequate representation. Jenkins, 78 F.3d at 1275 (“A difference of opinion
concerning litigation strategy or individual aspects of a remedy does not overcome the presumption
of adequate representation.”). To the extent that Mr. Walker wishes to pursue monetary damages,
he will need to do so in a separate action, on his own behalf.
III.

Conclusion
For these reasons, Mr. Walker’s motions for appointment of counsel, Doc. 222, and for

injunctive relief, Doc. 223, are denied.

s/ Nanette K. Laughrey
NANETTE K. LAUGHREY
United States District Judge
Dated: January 24, 2019
Jefferson City, Missouri

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