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Paige v. Martell

United States District Court, D. Kansas

July 25, 2017

MICHAEL P. PAIGE, Plaintiff,
v.
fnu MARTELL, et al., Defendants.

          MEMORANDUM AND ORDER

          DAVID J. WAXSE U.S. Magistrate Judge

         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).

         Motions for Leave to File Amended Complaints

         Plaintiff 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.

         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 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.

         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. 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.

         This 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.

         The 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.

         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 (10thCir. 2010).

         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, 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).

         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 ...


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