United States District Court, D. Kansas
MICHAEL P. PAIGE, Plaintiff,
fnu MARTELL, et al., Defendants.
MEMORANDUM AND ORDER
J. WAXSE U.S. Magistrate Judge
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).
for Leave to File Amended Complaints
has filed both a motion for leave to file an amended
complaint and a motion for leave to file a second amended
complaint. 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. Because the defendants have not yet been served,
the Court grants Plaintiff's motions. The Court has also
reviewed and considered the arguments Plaintiff makes in his
motion for reconsideration.
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
claims he should be treated with direct acting 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.
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. In Abu-Jamal, the
plaintiff was a state prisoner seeking a 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 plaintiff, and the parties had fully briefed the
issues. 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 were
deliberately indifferent to his serious medical need.
Id. at *20.
Court also takes note of 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. The court in
Postawko found that “[d]espite an effective
and near-certain cure in the form of DAA drugs, Defendants
follow a prioritization and monitoring policy, which prolongs
the suffering of those diagnosed with chronic HCV and allows
the progression of the disease to accelerate. As in
Abu-Jamal, such a policy is enough to show
deliberate indifference, particularly at the current pleading
stage.” Id. at *8.
Court finds that the proper processing of Plaintiff's
claims cannot be achieved without additional information from
appropriate officials of the El Dorado Correctional Facility
(“EDCF”). 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.
for Injunctive Relief
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 (10thCir. 2010).
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, Inc., 555 U.S. 7, 22 (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).
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.