Ingram v. Clements et al

Filing 23

ORDER to Dismiss in Part and to Draw in Part by Judge Lewis T. Babcock on 10/29/14. Defendants John and Jane Does at Colorado Department of Corrections (DOC) Headquarters and John and Jane Does at SCF are dismissed. (dkals, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

Civil Action No. 14-cv-01024-BNB

MICHAEL RAY INGRAM
Plaintiff,
v.
FRANK CLEMENTS,
R. WERHOLZ,
R. RAEMISCH,
JOHN AND JANE DOES AT THE COLORADO DEPARTMENT OF CORRECTIONS,
J. FALK, Sterling Correctional Facility (SCF) Warden,
J. CHAPDELAINE, SCF Associate Warden,
JOHN AND JANE DOES AT SCF,
JOHN AND JANE DOES, SCF Job Board,
K. MCKAY, SCF Physician’s Assistant,
PHYSICIANS HEALTH PARTNERS, INC., dba CORRECTIONAL HEALTH
PARTNERS, a Colorado Corporation, and
JOHN AND JANE DOES, Physicians Health Partners, Inc., dba Health Partners, a
Colorado Corporation,
Defendants.

ORDER TO DISMISS IN PART AND TO DRAW IN PART

Plaintiff, Michael Ray Ingram, is in the custody of the Colorado Department of
Corrections currently incarcerated at the Sterling Correctional Facility in Sterling,
Colorado. He initiated this action on April 9, 2014 by filing pro se a Prisoner Complaint
pursuant to 42 U.S.C. § 1983, the Americans with Disabilities Act, and the Rehabilitation
Act, and asserts supplemental jurisdiction over state law claims for breach of contract
and negligence.
On June 19, 2014, Magistrate Judge Boyd N. Boland directed Plaintiff to amend
the Complaint and comply with Rule 8 of the Federal Rules of Civil Procedure.

Specifically, Plaintiff was directed to state how each named defendant personally
participated in the alleged violations. Plaintiff also was informed that supervisors are
not responsible for their subordinates’ actions. After granting Plaintiff numerous
extensions of time to file the amended complaint, Plaintiff filed his “First Amended
Prisoner Complaint” (ECF No. 21) on October 10, 2014.
Plaintiff has been granted leave to proceed pursuant to the federal in forma
pauperis statute, 28 U.S.C. § 1915. Subsection (e)(2)(B) of § 1915 requires a court to
dismiss sua sponte an action at any time if the action is frivolous, malicious, or seeks
monetary relief against a defendant who is immune from such relief. A legally frivolous
claim is one in which the plaintiff asserts the violation of a legal interest that clearly does
not exist or asserts facts that do not support an arguable claim. Neitzke v. Williams,
490 U.S. 319, 324 (1989).
The Court must construe the Amended Complaint liberally because Plaintiff is a
pro se litigant. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Hall v. Bellmon, 935
F.2d 1106, 1110 (10th Cir. 1991). However, the Court should not act as a pro se
litigant’s advocate. See Hall, 935 F.2d at 1110. For the reasons stated below, the
Court will dismiss the Prisoner Complaint, in part, pursuant to 28 U.S.C. §
1915(e)(2)(B) as legally frivolous.
In the Amended Complaint, Plaintiff alleges that he suffers from the following
“medical conditions/disabilities that significantly limit daily activities, singularly and
aggregately: (a) migraines; (b) photophobia; (c) nausea; (d) neck arthritis; (e)
dysphagia; (f) left shoulder arthritis; (g) right elbow arthritis/tendinitis; (h) lower left back
pain/spasms; (I) left hip arthritis; (j) arthritic knees; (k) ankle pain; (l) deformed heels;
(m) neuropathic foot pain; and (n) plantar fascitis (PF).” Plaintiff alleges that Defendants
2

violated his rights to adequate medical care and “caused the wanton and unnecessary
infliction of pain and suffering caused by kitchen labor despite known medical
conditions/disabilities.” On the basis of these allegations, Plaintiff asserts the following
six claims against Defendants: (1) cruel and unusual punishment in violation of the
Eighth Amendment; (2) shocking, arbitrary, irrational, and discriminatory conduct in
violation of the Fourteenth Amendment; (3) violation of the American with Disabilities
Act (ADA); (4) violation of Section 504 of the Rehabilitation Act; (5) breach of contract;
and (6) negligence. He asks for declaratory and injunctive relief and money damages.
In his first claim, Plaintiff alleges that Defendants violated his Eighth Amendment
right to be free from cruel and unusual punishment by requiring him to perform kitchen
duties in the dishroom from April 6, 2012 to May 7, 2012, in the diet kitchen from June
14, 2012 to July 21, 2012, and as a flatware/condiment roller from September 12, 2012
to present. Plaintiff asserts that these work assignments have aggravated his medical
conditions by requiring him to perform work duties beyond his physical capabilities and
were contrary to his work restrictions. He also contends that his requests for “ADA/RA
accommodations” and requests to clinical services, including issuance of appropriate
footwear, a bottom tier restriction, issuance of an orthopedic pillow, no prolonged sitting
restriction, and various work restrictions, have been denied. Plaintiff also alleges that
he has been denied adequate medical care in violation of the Eighth Amendment.
In his second claim, Plaintiff asserts that Defendants violated his Fourteenth
Amendment rights by intentionally treating him differently from others who have medical
conditions/disabilities. In support of this claim, Plaintiff alleges that he is aware of other
prisoners who have two-hour and four-hour work restrictions.
In his third (ADA) and fourth (Rehabilitation Act) claims, Plaintiff asserts that he is
3

a qualified individual for ADA and Rehabilitation Act purposes, that Defendants
wrongfully denied his request for accommodations, and that the exclusion or denial of
benefits or discrimination was based on his medical conditions/disabilities.
In his fifth claim, Plaintiff asserts that Defendant Physicians Health Partners, Inc.,
d/b/a Correctional Health Partners, a Colorado corporation breached its contract by not
providing promised medical treatment. In his sixth claim, Plaintiff asserts that
Defendant Physicians Health Partners, Inc., d/b/a Correctional Health Partners, a
Colorado corporation was negligent in providing medical treatment.
I. Eighth Amendment Claim
The Eighth Amendment claim against Defendants Clements, Werholz,
Raemisch, Falk, Chapdelaine, McKay, and John and Jane Does, SCF Job Board will be
ordered drawn to a presiding judge and if appropriate to a magistrate judge. The Eighth
Amendment claim against the remaining Defendants will be dismissed as legally
frivolous.
Plaintiff alleges that Defendants John and Jane Does at Colorado Department of
Corrections (DOC) Headquarters and John and Jane Does at SCF failed to properly
train and supervise Defendant McKay who allegedly provided inadequate medical care
and denied Plaintiff’s requests for work and housing restrictions and ADA/RA
accommodations. This allegation is conclusory and devoid of any factual support. To
sue these supervisory defendants, Plaintiff must plausibly plead and eventually prove
not only that the Defendant McKay violated the Constitution, but that her supervisors at
Sterling Correctional Facility and the Colorado Department of Corrections by virtue of
their own conduct and state of mind did so as well. See Dodds v. Richardson, 614 F.3d
1185, 1198 (10th Cir. 2010); see also Jones v. Lehmkuhl, No. 11-cv-02384-WYD-CBS,
4

2013 WL 6728951, at *15 (D. Colo. Dec. 20, 2013) (noting there were “no well-pled
facts that demonstrate specific deficiencies” in training). Plaintiff has failed to do so.
Thus, the Eighth Amendment claim against Defendants John and Jane Does at
Colorado Department of Corrections (DOC) Headquarters and John and Jane Does at
SCF is dismissed as legally frivolous pursuant to § 1915A(b)(1), and these two
defendants will be dismissed as parties to this lawsuit.
II. Equal Protection Claim
Plaintiff’s second claim is construed as an equal protection claim and will be
dismissed as legally frivolous for the following reasons. The Equal Protection Clause of
the Fourteenth Amendment provides that “[n]o state shall . . . deny to any person within
its jurisdiction the equal protection of the laws,” U.S. Const. amend. XIV, § 1. When
considering an equal protection claim, the Court applies a rational basis test if “the
challenged government action does not implicate either a fundamental right or a
protected class.” Price-Cornelison v. Brooks, 524 F.3d 1103, 1110 (10th Cir. 2008).
The basic premise of the Equal Protection Clause is that all similarly situated persons
should be treated alike by state actors. See City of Cleburne v. Cleburne Living Center,
473 U.S. 432, 439 (1985). To prevail on an equal protection claim, a plaintiff must show
that the government has treated him differently than others who were similarly situated.
See Penrod v. Zavaras, 94 F.3d 1399, 1406 (10th Cir. 1996).
First, Plaintiff fails to allege sufficient, or any, facts to state a plausible claim of
violation of his rights to equal protection. Without supporting facts, this claim rests on
nothing more than the conclusory allegation that Defendants treated him “differently”,
without further explanation or clarification. See Coppinger v. Zavaras, 429 Fed. Appx.
755 (10th Cir. 2011) (affirming district court’s dismissal of equal protection claims as
5

legally frivolous where the plaintiff’s allegations of an equal protection violation were
conclusory).
Moreover, Plaintiff does not assert differential treatment based on a suspect
classification. Disability is not a suspect classification for equal protection purposes,
see Whitington v. Moschetti, 42 F. Appx. 767, 770 (10th Cir 2011). Plaintiff, therefore,
must assert that defendants have treated him differently than others who are similarly
situated and the distinction was not reasonably related to some legitimate penological
purpose. See Gwinn v. Awmiller, 354 F.3d 1211, 1228 (10th Cir. 2004) (“absent an
allegation of a suspect classification, our review of prison officials’ differing treatment of
various inmates is quite deferential” and only whether the treatment was “reasonably
related to a legitimate penological purpose” is considered). The requirement to show
that an inmate is similarly situated is demanding. See Templeman v. Gunter, 16 F.3d
367, 371 (10th Cir. 1994) (“[I]t is “clearly baseless’ to claim that there are other inmates
who are similar in every relevant respect.”) (citing Neitzke v. Williams, 490 U.S. 319,
327 (1989)). “Absent a threshold showing that [Plaintiff] is similarly situated to those
who allegedly receive favorable treatment, [he] does not have a viable equal protection
claim.” Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir. 1994). Here, Plaintiff fails to
make a threshold showing that he is similarly situated to inmates with similar medical
conditions/disabilities who have received work restrictions and ADA/RA
accommodations.
Even assuming that the inmates receiving the works restrictions and
accommodations that Plaintiff seeks are similarly situated, Plaintiff is required to assert
that his denial of work restrictions and accommodations was not reasonably related to
some legitimate penological purpose. Given that prison officials have considerable
6

discretion in work placement decisions, Plaintiff is unable to assert that his work
assignment to kitchen duty was unreasonable. See White v. Bolden, No. 91-3293-DES,
1993 WL 192912 (D. Kan. May 25, 1993) (acknowledging prison officials’ discretion
regarding work assignment or reassignment); see also Fogle v. Pierson, 435 F.3d 1252,
1261 (10th Cir. 2006) (recognizing that prison officials have considerable discretion in
placement decisions). There is a presumption in favor of the validity of prison officials’
disparate treatment. See Hill v. Pugh, 75 F. App’x 715, 720 (10th Cir. 2003). For all
these reasons, the equal protection claim asserted against Defendants is dismissed as
legally frivolous.
III. ADA and Rehabilitation Act Claims
The ADA and Rehabilitation Act claims will be dismissed for the following
reasons. The ADA and Rehabilitation Act statutes provide that no qualified individual
with a disability may be excluded from participation in or be denied the benefits of
services, programs or activities of a public entity solely by reason of such disability.
Prisons are “public entities” subject to the ADA and Rehabilitation Act. However,
“[w]here the handicapping condition is related to the condition(s) to be treated, it will
rarely, if ever, be possible to say ... that a particular decision was ‘discriminatory.’ “
Fitzgerald v. Corrections Corporation of America, 403 F.3d 1134, 1144 (10th Cir.2005)
(quoting United States v. University Hospital, 729 F.2d 144, 157 (2d Cir.1984)). The
Tenth Circuit has joined several circuits in holding that the ADA and Rehabilitation Act
do not provide remedies for alleged medical malpractice. Id. See also Rashad v.
Doughty, 4 Fed. Appx. 558 (10th Cir.2001) (holding that “the failure to provide medical
treatment to a disabled prisoner, while perhaps raising Eighth Amendment concerns in
certain circumstances, does not constitute an ADA violation); Moore v. Prison Health
7

Services, Inc., 201 F.3d 448 (10th Cir.1999) (finding that the ADA and Rehabilitation Act
afford disabled persons legal rights regarding access to programs and activities enjoyed
by all, not a general cause of action for challenging the medical treatment of their
underlying disabilities).
While Plaintiff believes that his rights under the ADA and Rehabilitation Act have
been violated because the work restrictions and accommodations for his “medical
conditions/disabilities” have been denied, such objections to the medical treatment that
has been provided to him does not rise to the level of an ADA or Rehabilitation Act
violation. See Rashad v. Doughty, 4 Fed. App’x 558, 560 (10th Cir. 2001). Moreover,
while Plaintiff alleges that his requests for ADA accommodations were denied, he fails
to identify the specific services, programs and benefits that are inaccessible. See Boles
v. Dansdill, No. 05-cv-01661-PSF-CBS, 2007 WL 2770473, at *18 (D. Colo. Sept. 20,
2007).
Even assuming that Plaintiff has been denied a viable benefit, other than
Plaintiff’s conclusory allegation that “the denial of benefits or the discrimination was
based on the medical conditions/disabilities,” Plaintiff fails to allege any facts supporting
the theory that Defendants acted with a discriminatory motive in denying him the work
restrictions and accommodations he requested . See Carter v. Pathfinder Energy
Services, Inc., 662 F.3d 1134, 1149 (10th Cir. 2011) (instructing that discriminatory
motive must be a “determining factor” in defendants’ actions); see also Richardson v.
Butler, No. 12–cv–02912, 2014 WL 700177, at *14 (D. Colo. Feb. 20, 2014) (dismissing
ADA claim where the plaintiff alleged that the defendants “deliberately disregarded” the
plaintiff's “ADA approved accommodations” but never alleged facts showing that they
intentionally discriminated because of his disability). Accordingly, the ADA and
8

Rehabilitation Act claims should be dismissed as legally frivolous.
IV. Breach of Contract and Negligence Claims
The supplemental state law claims against Defendants Physicians Health
Partners, Inc., d/b/a Correctional Health Partners, a Colorado corporation and John and
Jane Does, Physicians Health Partners, Inc., d/b/a Correctional Health Partners, a
Colorado corporation for breach of contract and negligence based on inadequate
medical treatment will be ordered drawn to a presiding judge and if appropriate to a
magistrate judge.
Accordingly, it is
ORDERED that the Eighth Amendment claim (claim one) against Defendants
Clements, Werholz, Raemisch, Falk, Chapdelaine, McKay, and John and Jane Does,
SCF Job Board and the supplemental state law claims for breach of contract (claim five)
and negligence (claim six) against Defendants Physicians Health Partners, Inc., d/b/a
Correctional Health Partners, a Colorado corporation and John and Jane Does,
Physicians Health Partners, Inc., d/b/a Correctional Health Partners, a Colorado
corporation will be ordered drawn to a presiding judge and if appropriate to a magistrate
judge. It is

9

FURTHER ORDERED that the claims for violation of equal protection (claim
two), ADA (claim three), and Rehabilitation Act (claim four) are dismissed as legally
frivolous pursuant to 28 U.S.C. § 1915(e)(B)(2)(I). It is
FURTHER ORDERED that Defendants John and Jane Does at Colorado
Department of Corrections (DOC) Headquarters and John and Jane Does at SCF are
dismissed as parties to this lawsuit.
DATED at Denver, Colorado, this

29th

day of

October

, 2014.

BY THE COURT:

s/Lewis T. Babcock
LEWIS T. BABCOCK, Senior Judge
United States District Court

10