Opinion
Civil Action No. 12-cv-01653-BNB
11-15-2012
MICHAEL RAY INGRAM, Plaintiff, v. FRANK CLEMENTS, Executive Director, Colorado Department of Corrections, and JAMES FALK, Warden, Sterling Correctional Facility, Colorado Department of Corrections, Defendants.
ORDER TO DISMISS IN PART AND TO DRAW IN PART
TO DISTRICT JUDGE AND MAGISTRATE JUDGE
Plaintiff, Michael Ray Ingram, a state prisoner proceeding pro se, currently is held at the state correctional facility in Sterling, Colorado. On September 5, 2012, the Court denied Mr. Ingram leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915(g) because he has filed at least three actions that were dismissed for failure to state a claim, and he has failed to set forth specific allegations in this action of ongoing serious physical injury or a pattern of misconduct evidencing the likelihood of imminent serious physical injury.
Originally, Magistrate Judge Boyd N. Boland granted Mr. Ingram leave to proceed pursuant to 28 U.S.C. § 1915 and instructed him to file an amended complaint. Mr. Ingram objected to the order to amend, but the Court overruled the objection and instructed Mr. Ingram to comply with the August 6, 2012 Order to File Amended Prisoner Complaint within twenty-one days. Before the time ran for Mr. Ingram to file an amended complaint, the Court revoked Mr. Ingram's in forma pauperis status and instructed him to pay the remaining balance of the $350.00 filing fee within thirty days if he wished to pursue his claims in this action. The Court found that Mr. Ingram is subject to 28 U.S.C. § 1915(g) filing restrictions and based on the claims he raises he is not subject to imminent danger of serious physical injury.
On September 17, 2012, Mr. Ingram filed a Motion to Alter or Amend Judgment, and on September 24, 2012, he filed a Second Motion for Reconsideration of Order Revoking In Forma Pauperis Status. Mr. Ingram also filed a motion for an extension of time to pay the remaining fee balance. Magistrate Judge Boland granted the extension. On November 1, 2012, Mr. Ingram submitted a $10.00 payment. Pursuant to the Court's directive, Mr. Ingram still must pay $309.00.
The Court, however, has reviewed Mr. Ingram's September 17 and 24 motions. Although the September 17 Motion does not state a basis for reconsidering the September 5 Order, Mr. Ingram's September 24 Motion does. Based on the following, the Court will revoke the September 5 Order and order the action drawn to a district judge and a magistrate judge with respect to the claims asserted against Defendant James Falk.
Mr. Ingram's Complaint and Motion for Temporary Restraining Order for the most part are only a laundry list of ailments that have plagued him since his incarceration. The allegation that he is incapacitated and in severe pain because of the kitchen duties he is required to perform, however, merits further consideration by the Court. Upon further review it also appears that Defendant Falk received a letter from Mr. Ingram, not just a copy of correspondence, that addressed the job assignment and medical problems. Defendant Falk, therefore, may be sufficiently implicated under § 1983. The Court, however, will dismiss Defendant Frank Clements because nothing Mr. Ingram asserts in his Complaint, or in any other pleading he has submitted in the action, implicates Defendant Clements. Accordingly, it is
ORDERED that Mr. Ingram's Motion to Alter or Amend Judgment, ECF No. 18, is denied. It is
FURTHER ORDERED that Mr. Ingram's Motion for Reconsideration of Order Revoking In forma Pauperis Status, ECF No. 20, is granted. It is
FURTHER ORDERED that the Order Revoking In Forma Pauperis Status, ECF No. 16, is revoked. It is
FURTHER ORDERED that Defendant Frank Clements is dismissed as an improper party to this action. It is
FURTHER ORDERED that the Complaint as asserted against remaining Defendant James Falk shall be drawn to a district judge and to a magistrate judge.
DATED at Denver, Colorado, this 15th day of November, 2012.
BY THE COURT:
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LEWIS T. BABCOCK, Senior Judge
United States District Court