Ingram v. Clements et al

Filing 69

ORDER approving and adopting as an order of court 63 Recommendation of United States Magistrate Judge. Granting 45 Defendants Werholtz, Raemisch, Falk and Chapdelaine's Motion to Dismiss. Granting 56 Defendant Keri McKay's Motion to D ismiss. Denying 68 Motion for Enlargement of Time in which to File Objections to Magistrate's Recommendation. Court declines to exercise supplemental jurisdiction over the state law claims for contract and negligence against the State of Col orado, Colorado Health Partners, and Physicians Health Partners, and those claims are dismissed without prejudice. Judgment shall enter in favor of the defendants and against the plaintiff. Defendants are awarded their costs and this case is closed, by Judge Robert E. Blackburn on 9/23/2015. (ebuch)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Robert E. Blackburn
Civil Action No. 14-cv-01024-REB-KMT
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 AT 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 ADOPTING RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE
Blackburn, J.
This matter is before me on the following: (1) Defendants Werholtz, Raemisch,
Falk and Chapdelaine’s Motion to Dismiss [#45] filed January 26, 2015; (2)
Defendant Keri McKay’s Motion To Dismiss [#56] filed July 17, 2015; (3) the
Recommendation of United States Magistrate Judge [#63] filed August 27, 2015;
and (4) the Motion for Enlargement of Time in which To File Objections To
Magistrate’s Recommendation [#68] filed September 15, 2015. I approve and adopt

the recommendation, grant the motions to dismiss, and deny the motion for extension of
time.
I. MOTION FOR EXTENSION OF TIME
In his motion [#68] for enlargement of time to file objections, the plaintiff, Michael
Ingram, seeks an additional six moths to file objections to the recommendation. He
contends that his medical condition and two recent injuries make it impossible for him to
file objections. He says legal research will be difficult and painful because of pain he
suffers in his arms. In addition, he says legal access, presumably to the law library, is
limited to Thursdays for prison, kitchen workers. He indicates that he works in the
kitchen. He does not specify, even in a summary fashion, the bases for any of his
proposed objections.
The facts, issues, and legal authorities addressed in the recommendation [#63]
are detailed in the underlying motions [#45 & #56] of the defendants, which were filed in
January and July of this year. With this background, Mr. Ingram has had ample time to
familiarize himself with the issues and authorities on which the defendants rely and
which are addressed in the recommendation. Given this context, I find that Mr. Ingram
has not stated in his motion good cause for an extension of time to file objections to the
recommendation. Therefore, his motion for extension of time [#68] is denied.
II. RECOMMENDATION
Mr. Ingram is proceeding pro se. Thus, I have construed his pleadings more
liberally and held them to a less stringent standard than formal pleadings drafted by
lawyers. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Andrews v. Heaton, 483
F.3d 1070, 1076 (10th Cir. 2007); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)
(citing Haines v. Kerner, 404 U.S. 519, 520-21 (1972)).
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No timely objections to the recommendation were filed. Therefore, I review it
only for plain error. See Morales-Fernandez v. Immigration & Naturalization
Service, 418 F.3d 1116, 1122 (10th Cir. 2005). Finding no error, much less plain error,
in the recommendation, I find and conclude that recommendation should be approved
and adopted.
Mr. Ingram is an inmate in the Colorado Department of Corrections. In his
amended complaint [#21], Mr. Ingram 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 fasciitis (PF).” Amended complaint [#21], CM/ECF p. 6. In his
first claim, Mr. Ingram alleges that the 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. Id., CM/ECF pp. 8 - 9. He contends these work assignments have aggravated
his medical conditions by requiring him to perform work duties beyond his physical
capabilities and contraryto 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. In
addition, Mr. Ingram claims he has been denied adequate medical care in violation of
the Eighth Amendment. The equal protection, American with Disabilities Act, and
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Rehabilitation Act claims of Mr. Ingram were dismissed previously.
In the recommendation, the magistrate judge recommends that the claims
against the defendants in their official capacity be dismissed based on Eleventh
Amendment immunity. Further, she recommends that the claims against Defendants R.
Werholtz, R. Raemisch, J. Falk, and J. Chapdelaine be dismissed because the
allegations in the complaint do not indicate that these defendants personally
participated in the alleged constitutional violations. As to the Eighth Amendment
medical treatment claim against defendant Keri McKay, the magistrate judge
recommends that this claim be dismissed because the allegations in the complaint
indicate that Mr. Ingram disagrees with the diagnoses and treatment plans of Ms.
McKay, but do not support a claim that Ms. McKay was deliberately indifferent to the
serious medical needs of Mr. Ingram. Further, the magistrate judge recommends
dismissal of the claims against all of the defendants employed by the Colorado
Department of Corrections based on qualified immunity. As to these defendants, the
allegations in the amended complaint do not support a claim that these defendants
violated the statutory or constitutional rights of Mr. Ingram. Therefore, the Colorado
Department of Corrections defendants are entitled to qualified immunity. On the current
record, each of these recommendations are appropriate, and it is difficult to divine a
valid objection which Mr. Ingram might make to these recommendations.
Finally, the magistrate judge recommends dismissal of the claim for breach of
contract asserted against the State of Colorado and Colorado Health Partners and the
claim for negligence asserted against Physicians Health Partners. These are claims
under state law. A federal district court may decline to exercise supplemental
jurisdiction over state law claims if “the district court has dismissed all claims over which
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it has original jurisdiction.” 28 U.S.C. § 1367(c)(3). I adopt the recommendation to
dismiss the remaining claims of Mr. Ingram under federal law. Further, I adopt the
recommendation concerning the state law claims, and I decline to exercise
supplemental jurisdiction over the remaining state law claims.
THEREFORE, IT IS ORDERED as follows:
1. That the Recommendation of United States Magistrate Judge [#63] filed
August 27, 2015, is approved and adopted as an order of this court;
2. That Defendants Werholtz, Raemisch, Falk and Chapdelaine’s Motion to
Dismiss [#45] filed January 26, 2015, is granted;
3. That Defendant Keri McKay’s Motion To Dismiss [#56] filed July 17, 2015,
is granted;
4. That the Motion for Enlargement of Time in which To File Objections To
Magistrate’s Recommendation [#68] filed September 15, 2015, is denied;
5. That the court declines to exercise supplemental jurisdiction over the state law
claims for contract and negligence against the State of Colorado, Colorado Health
Partners, and Physicians Health Partners, and those claims are dismissed without
prejudice;
6. That based on this order and the Order To Dismiss in Part and To Draw in
Part [#23], judgment shall enter in favor of the defendants, 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
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Partners, Inc., dba Health Partners, a Colorado Corporation, against the plaintiff,
Michael Ray Ingram;
7. That the defendants are awarded their costs to be taxed by the clerk of the
court in the time and manner required under Fed. R. Civ. P. 54(d)(1) and
D.C.COLO.LCivR 54.1; and
8. That this case is closed.
Dated September 23, 2015, at Denver, Colorado.
BY THE COURT:

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