Ingram v. Werholz

Appellate Case: 21-1170 Document: 010110702424 Date Filed: 06/28/2022 Page: 1
FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT June 28, 2022
_________________________________
Christopher M. Wolpert
Clerk of Court
MICHAEL RAY INGRAM,

Plaintiff - Appellant,

v. No. 21-1170
(D.C. No. 1:14-CV-01024-REB-KMT)
R. WERHOLZ; RICK RAEMISCH; (D. Colo.)
J. FALK, Sterling Correctional Facility
(SCF) Warden; J. CHAPDELAINE, SCF
Associate Warden; K. MCKAY, SCF
Physician’s Assistant; DEAN WILLIAMS,
Colorado Department of Corrections
Executive Director,

Defendants - Appellees.
_________________________________

ORDER AND JUDGMENT*
_________________________________

Before TYMKOVICH, Chief Judge, HOLMES and ROSSMAN, Circuit Judges.
_________________________________

In 2017, this court reversed the dismissal of certain prison-conditions claims

brought by pro se plaintiff Michael Ray Ingram and remanded for further

proceedings. See Ingram v. Clements, 705 F. App’x 721, 727 (10th Cir. 2017). On

*
After examining the briefs and appellate record, this panel has determined
unanimously to honor the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
submitted without oral argument. This order and judgment is not binding precedent,
except under the doctrines of law of the case, res judicata, and collateral estoppel. It
may be cited, however, for its persuasive value consistent with Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
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remand, the district court denied several non-dispositive motions by Mr. Ingram and

then granted a summary-judgment motion filed by Roger Werholz, Rick Raemisch,

James Falk, John Chapdelaine, and Dean Williams (collectively, the “State

Defendants”), and a separate summary-judgment motion filed by Keri McKay.

Mr. Ingram now appeals pro se.1 Exercising jurisdiction under 28 U.S.C. § 1291, we

affirm.

BACKGROUND

Mr. Ingram is an inmate in the Colorado Department of Corrections (“CDOC”)

who is confined at the Sterling Correctional Facility (“SCF”). He suffers from foot

impairments that caused a prison doctor to prohibit him from standing more than 30

minutes at a time. He also suffers from many other medical conditions that

“significantly limit daily activities, singularly and aggregately,” including migraines,

nausea, light sensitivity, a choking cough, and pain in his neck, right elbow, lower

back, left hip, knees, and ankles. R. Vol. 1 at 142.

Mr. Ingram’s first amended complaint targeted several conditions of his

confinement. The district court dismissed all of his claims under 28 U.S.C. § 1915A

and Federal Rule of Civil Procedure 12(b)(6). This court affirmed in part. Ingram,

705 F. App’x at 727. But it reversed the dismissal of two sets of claims.

First, Mr. Ingram had alleged that CDOC required him to stand in a long

outside line to receive his medications (the “med line”). He asserted that the

1
We construe Mr. Ingram’s pro se filings liberally. Hall v. Bellmon, 935 F.2d 1106,
1110 (10th Cir. 1991).
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extended standing for the med line was painful and aggravated his medical

conditions, particularly in cold and windy weather. Sometimes he skipped the med

line and tried to compensate with over-the-counter medications from the canteen.

We held these allegations stated a claim under the Americans with Disabilities Act

(“ADA”) and the Rehabilitation Act (“RA”). Id. at 725-26.

Second, Mr. Ingram had alleged that he was assigned to work in various

positions in the SCF kitchen. He asserted that this work assignment violated his

medical restrictions and that the physical demands aggravated his medical conditions,

causing him pain and fatigue. He asserted that Ms. McKay, a physician’s assistant,

violated the Eighth Amendment by refusing to issue work restrictions that would

keep Mr. Ingram out of the kitchen. We held these allegations stated a claim under

42 U.S.C. § 1983 against Ms. McKay. Id. at 726.

On remand, the district court denied several non-dispositive motions filed by

Mr. Ingram. The State Defendants and Ms. McKay moved for summary judgment.

Mr. Ingram moved for six-month extensions to conduct litigation activities and to

respond to Ms. McKay’s motion, but the district court did not address those motions

for more than six months after he filed them. During that time, Mr. Ingram did not

respond to the summary-judgment motions or seek additional time to respond.

Ultimately, the district court denied the motions for an extension and found no good

cause for further extensions of time to respond.

The day after denying the motions for an extension, the district court granted

both summary-judgment motions. It held that Mr. Ingram could not bring ADA and

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RA claims against the State Defendants in their individual capacities. It further held

he could not proceed with the ADA and RA claims against Messrs. Werholz,

Raemisch, Falk, and Chapdelaine in their official capacities because they had all

retired from CDOC by the time of the decision. The district court allowed

Mr. Ingram to pursue his ADA and RA claims against the serving Executive Director

of CDOC, Mr. Williams, in his official capacity. And it assumed that Mr. Ingram has

one or more qualifying disabilities. It held, however, that the undisputed evidence

did not show that he was denied any service or program, including his medicine, as a

result of a disability.

As for the § 1983 claim against Ms. McKay, the district court determined that

Mr. Ingram failed to establish an Eighth Amendment violation. It held the record did

not allow an inference that Ms. McKay was deliberately indifferent to Mr. Ingram’s

serious medical needs. “Rather, the undisputed facts in the record show McKay

properly and repeatedly exercised her considered medical judgment as to Mr. Ingram.

That is the opposite of deliberate indifference.” R. Vol. 3 at 323.

DISCUSSION

I. Denial of Appointed Counsel

Mr. Ingram moved for the appointment of counsel in March 2019 and again in

April 2020. The magistrate judge denied both motions, and the district court

overruled Mr. Ingram’s objections. We review the denial of appointed counsel for

abuse of discretion. See Rachel v. Troutt, 820 F.3d 390, 397 (10th Cir. 2016). “A

district court abuses its discretion when it (1) fails to exercise meaningful discretion,

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such as acting arbitrarily or not at all, (2) commits an error of law, such as applying

an incorrect legal standard or misapplying the correct legal standard, or (3) relies on

clearly erroneous factual findings.” Farmer v. Banco Popular of N. Am., 791 F.3d

1246, 1256 (10th Cir. 2015).

“In considering whether the court acted within its discretion, we consider the

merits of the claims, the nature of the claims, [the litigant’s] ability to present the

claims, and the complexity of the issues.” Rachel, 820 F.3d at 397. “Only in those

extreme cases where the lack of counsel results in fundamental unfairness will the

district court’s decision be overturned.” Toevs v. Reid, 685 F.3d 903, 916 (10th Cir.

2012) (internal quotation marks omitted).

Mr. Ingram argues that “the numerous sources of pain and Chronic Sleep

Deficit make it difficult and painful to write, but [also] to think clearly.” Aplt.

Opening Br. at 3A. He asserts that “appointment of counsel would benefit the court

by a well-pled presentation that narrowed the issues and discovery and partial

motions for summary judgment would simplify trial, and encourage a settlement.”

Id. at 3B. He further asserts that “a showing of all 4 factors was unnecessary”

because his motions detailed “the severe nature/extent of [his] physical/cognitive

impairments and noted that all efforts exacerbated [his] pain/suffering and were

tantamount to torture.” Id.

In denying both motions, the magistrate judge considered the relevant factors,

both those set forth in this court’s caselaw as well as the district court’s own local

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rules, see D.C. Colo.LAttyR 15(f)(1)(B).2 She acknowledged Mr. Ingram’s medical

conditions, stating the March 2019 motion informed the court that “his own physical

impairments make writing painful and difficult.” R. Vol. 3 at 109. And with regard

to the April 2020 motion, she recognized his averments that “his physical/cognitive

impairments have become so much greater” and that “everything is more difficult.”

Aplee. Supp. App’x at 59 (internal quotation marks omitted). She found these

averments outweighed, however, by other relevant factors Mr. Ingram did not

address. Because this decision was not arbitrary and did not involve an error of law

or clearly erroneous factual findings, it was not an abuse of discretion.3

2
The district court’s rule states:

In deciding whether to appoint counsel, the judicial officer should consider
all relevant circumstances, including, but not limited to, the following:

(i) the nature and complexity of the action;

(ii) the potential merit of the claims or defenses of the
unrepresented party;

(iii) the demonstrated inability of the unrepresented party to retain
an attorney by other means; and

(iv) the degree to which the interests of justice, including the
benefits to the court, will be served by appointment of
counsel.

D.C. Colo.LAttyR 15(f)(1)(B).
3
In his objections to the magistrate judge’s denial of the March 2019 motion,
Mr. Ingram stated that his medical conditions made it difficult to address the relevant
factors. But he then discussed factors the magistrate judge had identified, including
the complexity of the claims, his attempts to obtain counsel by other means, and the
interests of justice. In his objections to the denial of the April 2020 motion, he
incorporated his prior filings, but he also discussed other factors, including the
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In denying the March 2019 motion, for example, the magistrate judge

recognized that Mr. Ingram’s claims were not novel or complex, and that he “has

relayed his claims so effectively that he successfully appealed two of his claims.” R.

Vol. 3 at 109. She reiterated these points in addressing the April 2020 motion.

Guided by the standard of review, we likewise discern no abuse of discretion in the

consideration of these factors.

Further, the magistrate judge also did not see any benefit that the court may

derive from the assistance of appointed counsel. See D.C. Colo.LAttyR

15(f)(1)(B)(iv). This determination fell squarely within the magistrate judge’s

discretion, which was exercised according to applicable law. While we imagine

counsel could have provided some benefit to the court, it was not an abuse of

discretion for the magistrate judge to find that assistance of counsel was not so

beneficial as to warrant appointment of counsel.

II. Denial of Martinez Report

In conjunction with his March 2019 motion for appointed counsel, Mr. Ingram

requested that the court order a Martinez report. See Martinez v. Aaron, 570 F.2d

complexity of the claims, his inability to search for counsel, and the interests of
justice. The district court overruled both objections, noting that it could overturn the
magistrate judge’s orders on non-dispositive motions only if they were “clearly
erroneous or contrary to law,” 28 U.S.C. § 636(b)(1)(A); Fed. R. Civ. P. 72(a), and
finding there was “no basis to conclude that the rulings of the magistrate judge are
clearly erroneous or contrary to law,” R. Vol. 3 at 305; Supp. R. Vol. 1 at 46. We
note that “[i]ssues raised for the first time in objections to the magistrate judge’s
recommendation are deemed waived.” Marshall v. Chater, 75 F.3d 1421, 1426
(10th Cir. 1996). Even if we overlook the waiver, we agree with the district court
that the magistrate judge’s rulings were not clearly erroneous or contrary to law.
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317, 319 (10th Cir. 1978) (en banc) (per curiam) (approving the district court’s

decision to order defendants, before they filed an answer, to conduct an investigation

to enable the court to decide preliminary issues). The magistrate judge denied the

motion, explaining that the court could not use a Martinez report to resolve disputed

issues, and that Mr. Ingram could use the discovery process to request materials in

the defendants’ possession. “The Federal Rules of Civil Procedure prescribe

discovery mechanisms applicable to all parties in federal civil litigation, and the

court will not authorize a means for sidestepping those tools.” R. Vol. 3 at 110-11.

The district court overruled Mr. Ingram’s objection.

Mr. Ingram asserts that a Martinez report would assemble “medical records,

grievances, and letters [that] would establish why [he] sought care and what was

provided” and would “facilitate the preparation of summary judgment affidavits

requiring defendants to prepare affidavits based on personal knowledge.” Aplt.

Opening Br. at 3. “The issues would be narrowed, trial simplified, and settlement

more likely.” Id. at 3C.

“Under the Martinez procedure, the district judge or a United States magistrate

[judge] to whom the matter has been referred will direct prison officials to respond in

writing to the various allegations, supporting their response by affidavits and copies

of internal disciplinary rules and reports.” Gee v. Estes, 829 F.2d 1005, 1007

(10th Cir. 1987) (per curiam). “The purpose of the Martinez report is to ascertain

whether there is a factual as well as a legal basis for the prisoner's claims.” Id.

Because they are intended to “allow the court to dig beneath the conclusional

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allegations [of a pro se prisoner complaint,] [t]hese reports have proved useful to

determine whether the case is so devoid of merit as to warrant dismissal without

trial.” Id. “There are limits, however, to what the court may do on the basis of a

Martinez report; we have held, for example, that magistrates and judges may not

make credibility determinations solely from conflicting affidavits.” Id. The

Martinez “process is designed to aid the court in fleshing out possible legal bases of

relief from unartfully drawn pro se prisoner complaints, not to resolve material

factual issues.” Northington v. Jackson, 973 F.2d 1518, 1521 (10th Cir. 1992).

By the time Mr. Ingram moved for a Martinez report, we already had

determined in Ingram that there was a sufficient factual and legal basis for the

remanded claims to proceed beyond the dismissal stage. And although Mr. Ingram

may have benefited had the court required the defendants to assemble the materials

typically submitted in a Martinez report, “[c]ourts order the Martinez report not to

provide discovery, but to aid in screening the complaint,” Rachel, 820 F.3d at 396.

As the district court observed, the items Mr. Ingram sought were available through

the discovery process. Under the circumstances here, where the litigation had moved

beyond the preliminary stages and discovery was available, we see no error in

denying a Martinez report.

III. Denial of Extension to Serve Deceased Defendant

The original complaint named as a defendant “Frank” Clements. It was

apparent, however, that Mr. Ingram intended to sue Tom Clements, a former

executive director of CDOC. Mr. Clements died in March 2013, before Mr. Ingram

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filed the action. Although a November 2014 waiver of service reflected that

Mr. Clements was deceased, Mr. Ingram did not move to serve his estate.

After the remand in Ingram, Mr. Ingram sought to pursue claims against

Mr. Clements. The magistrate judge substituted the current director of CDOC,

Mr. Williams, for claims in Mr. Clements’ official capacity, but opined that

Mr. Ingram was too late to substitute Mr. Clements’ estate for claims against him in

his individual capacity. See Fed. R. Civ. P. 25(a)(1) (setting a 90-day period to

substitute an estate). She recommended that the district court dismiss the

individual-capacity claims against Mr. Clements.

Mr. Ingram objected, asserting that Rule 25(a)(1) did not apply and the 90-day

period never commenced because the court and parties had never been properly

notified of Mr. Clements’ death. The State Defendants conceded that point, but they

asserted that Mr. Ingram had waited too long to try to serve Mr. Clements. See Fed.

R. Civ. P. 4(m) (setting 90-day period for service). The district court overruled

Mr. Ingram’s objection and dismissed the individual-capacity claims against

Mr. Clements under Rule 4(m).

On appeal, Mr. Ingram argues that “[t]he failure to serve [the] estate is not

relevant until the proper procedure for deceased parties is followed.” Aplt. Opening

Br. at 3D. We need not consider this contention, however, because any error in

applying Rule 4(m) is harmless. See Fed. R. Civ. P. 61 (“At every stage of the

proceeding, the court must disregard all errors and defects that do not affect any

party’s substantial rights.”); Bridges v. Wilson, 996 F.3d 1094, 1099 (10th Cir. 2021)

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(in applying harmless-error doctrine, “[t]he appellate court exercises common sense,

trying to make a realistic assessment of the practical likelihood that the result in the

district court would have been different had the error not occurred” (internal

quotation marks omitted)). Mr. Ingram has no claims to assert against Mr. Clements

or his estate. After Ingram, the only claims remaining against the prison officials

were the ADA and RA claims related to standing in the med line. 705 F. App’x at

727. Mr. Ingram could sue Mr. Clements in two capacities—Mr. Clements’s official

capacity or his individual capacity. The magistrate judge substituted Mr. Williams as

the official-capacity defendant. And Mr. Ingram has not challenged the district

court’s holding that Title II of the ADA and Section 504 of the RA do not allow

individual-capacity claims. He thus cannot proceed against Mr. Clements (or his

estate) with an individual-capacity claim.

IV. Denial of Leave to Amend

In July 2019, Mr. Ingram moved for leave to file a second amended complaint.

The magistrate judge denied leave on the ground of futility, and the district court

overruled Mr. Ingram’s objections. Although we generally review denial of leave to

amend for abuse of discretion, our review is de novo when the denial is on futility

grounds. Moya v. Garcia, 895 F.3d 1229, 1239 (10th Cir. 2018) (“[H]ere, the district

court denied leave to amend based on futility. In this circumstance, our review for

abuse of discretion includes de novo review of the legal basis for the finding of

futility.” (internal quotation marks omitted)).

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The magistrate judge gave several reasons for considering the second amended

complaint to be futile. On appeal, Mr. Ingram does not take issue with those reasons,

but points to the proposed second amended complaint as an example of why he

needed the assistance of counsel. Under the circumstances, he has waived any

challenge to the denial of leave to amend. See Petrella v. Brownback, 787 F.3d 1242,

1266 n.10 (10th Cir. 2015) (recognizing waiver through failure to make arguments in

the opening appellate brief).

V. Denial of Extensions

On August 7, 2020, the district court set a deadline for Mr. Ingram to respond

to Ms. McKay’s motion for summary judgment, filed earlier that year. Shortly

thereafter, on August 10, the State Defendants filed their motion for summary

judgment. Also on August 10, Mr. Ingram mailed to the district court a motion for a

six-month extension to perform research and undertake other litigation activities

(Dist. Ct. Doc. 215). Then, approximately a month later, on September 14,

Mr. Ingram mailed a response to the district court’s August 7 order, asserting that he

had never received Ms. McKay’s summary-judgment motion and requesting a

six-month extension to respond (Dist. Ct. Doc. 217).

The district court did not address either Doc. 215 or Doc. 217 for more than

six months after Mr. Ingram filed Doc. 217. During that time, however, Mr. Ingram

neither requested additional time to respond nor filed responses to the defendants’

summary judgment motions. On March 29, 2021, the district court concluded that

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Mr. Ingram had not demonstrated good cause for an additional extension of time and

denied the motions for an extension:

Since January of 2020, Mr. Ingram has filed with the court ten or
more documents totaling over 30 hand-written pages. In some of those
documents, he describes in detail his medical conditions and the restrictions
he faces in prison due to the pandemic. The filings of Mr. Ingram
demonstrate clearly that he is able to write and to coherently address
moderately complex topics. With a similar effort, Mr. Ingram could have
prepared the items he addresses in [#215]. He could have prepared a
response to the motion for summary judgment of Ms. McKay but he has
not.

Aplee. Supp. App. at 110 (bracketed reference to Doc. 215 in original). We review

this decision for an abuse of discretion. See Buchanan v. Sherrill, 51 F.3d 227, 228

(10th Cir. 1995) (per curiam).

While “district courts generally have broad discretion to manage their

dockets,” Clark v. State Farm Mut. Auto. Ins. Co., 590 F.3d 1134, 1140 (10th Cir.

2009) (internal quotation marks omitted), litigants are entitled to rulings on their

motions, see Farmer, 791 F.3d at 1256 (classifying as an abuse of discretion a

“fail[ure] to exercise meaningful discretion, such as acting arbitrarily or not at all”

(emphasis added)). The record does not show why the district court took more than

six months to rule on Mr. Ingram’s motions. In the end, the district court’s inaction

had the effect of giving Mr. Ingram several additional months—more than the six

months he requested in Doc. 215 and nearly all the six months he requested in Doc.

217—to undertake litigation activities and respond to the motions for summary

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judgment.4 During that period, Mr. Ingram did not ask for a ruling on his motions for

an extension, did not ask for more time, and did not file responses opposing summary

judgment.

On appeal, Mr. Ingram insists that his motions “demonstrate how medical

conditions/disabilities severely limit [his] productivity because of physical/cognitive

impairments. Productive time is also severely limited because of [his]

physical/cognitive impairments along with prison schedule.” Aplt. Opening Br. at

3F. But the district court took account of Mr. Ingram’s medical conditions and the

difficulties of litigating from prison. Mr. Ingram does not argue that he was waiting

for the district court to rule on his motions before submitting additional filings. Nor

does he argue that, had the district court explicitly granted the six-month extensions

or otherwise acted sooner, he would have filed responses to the summary-judgment

motions. Accordingly, he has not shown the result would have been different, such

as to require reversal on this ground. See Fed. R. Civ. P. 61; Bridges, 996 F.3d at

1099.

VI. Grant of Summary Judgment

Finally, Mr. Ingram challenges the district court’s grant of summary judgment

to the defendants. As stated, however, Mr. Ingram did not respond to the defendants’

4
When Ms. McKay’s counsel received Doc. 217 and learned that Mr. Ingram had not
received a copy of Ms. McKay’s summary-judgment motion, counsel mailed him an
additional copy on September 30, 2020. The district court’s March 29, 2021, order
was filed six months after that mailing. Therefore, Mr. Ingram would have had
something less than six months to respond to Ms. McKay’s motion after receiving it.
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motions for summary judgment. Therefore, all of his arguments challenging the

grant of summary judgment are new on appeal. Under these circumstances, we can

review his arguments only for plain error. See Richison v. Ernest Grp., Inc., 634 F.3d

1123, 1128, 1130 (10th Cir. 2011). But when a party does not argue for plain-error

review of new arguments, that party waives appellate review of those arguments.

See id. at 1130-31. This rule generally applies to pro se litigants, as well as to

counseled parties. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840

(10th Cir. 2005) (“[T]his court has repeatedly insisted that pro se parties follow the

same rules of procedure that govern other litigants.” (internal quotation marks

omitted)). Accordingly, because Mr. Ingram has not addressed whether his

summary-judgment arguments satisfy the plain-error doctrine, we must find those

arguments waived.

CONCLUSION

The district court’s judgment is affirmed.

Entered for the Court

Veronica S. Rossman
Circuit Judge

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