                                                                                FILED
                                                                    United States Court of Appeals
                      UNITED STATES COURT OF APPEALS                        Tenth Circuit

                             FOR THE TENTH CIRCUIT                        August 11, 2017
                         _________________________________
                                                                       Elisabeth A. Shumaker
                                                                           Clerk of Court
MICHAEL RAY INGRAM,

      Plaintiff - Appellant,

v.                                                         No. 16-1416
                                              (D.C. No. 1:14-CV-01024-REB-KMT)
FRANK CLEMENTS; R. WERHOLZ;                                 (D. Colo.)
RICK RAEMISCH; J. FALK, Sterling
Correctional Facility (SCF) Warden;
J. CHAPDELAINE, SCF Associate
Warden; JOHN AND JANE DOES;
K. MCKAY, SCF Physician’s Assistant;
PHYSICIANS HEALTH PARTNERS,
INC., a Colorado corporation; and John
and Jane Does, Physicians Health Partner,
Inc., d/b/a Health Partners, a Colorado
corporation,

      Defendants - Appellees.
                      _________________________________

                             ORDER AND JUDGMENT*
                         _________________________________

Before LUCERO, HOLMES, and BACHARACH, Circuit Judges.
                  _________________________________




      *
        After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral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.
       Michael Ingram, proceeding pro se, appeals the district court’s dismissal of his

civil rights suit. We dismiss in part for lack of appellate jurisdiction. Exercising

jurisdiction under 28 U.S.C. § 1291 over the remaining claims, we affirm in part and

reverse in part.

                                            I

       Ingram is incarcerated in the Colorado Department of Corrections (“CDOC”),

and currently housed in the Sterling Correctional Facility (“SCF”). In 2014, he filed

suit against Keri McKay, a physician’s assistant contractually employed by CDOC,

and multiple prison administrators (“CDOC defendants”). In his First Amended

Complaint (“FAC”), Ingram asserts violations of: (1) the Eighth Amendment; (2) the

Fourteenth Amendment; (3) the Americans with Disabilities Act (“ADA”); (4) the

Rehabilitation Act; and (5) state law. The claims involve allegations that Ingram

suffers from numerous medical conditions or disabilities that have been exacerbated

by issues arising out of prison work assignments, medical care, and housing.

       After an initial screening under 28 U.S.C. § 1915A, the district court dismissed

as legally frivolous all but the Eighth Amendment and state law claims.1 Defendants

then moved to dismiss the remaining claims. A magistrate judge considered the

motions and recommended that they be granted. The parties were advised that failure

to make timely and specific objections to the magistrate’s recommendation would


       1
         Because Ingram does not appeal the dismissal of his Fourteenth Amendment
or state law claims, we will not address them. Krastev v. INS, 292 F.3d 1268, 1280
(10th Cir. 2002) (“Issues not raised on appeal are deemed to be waived.”).

                                           2
result in waiver of the right to appeal the district court’s judgment. Ingram filed a

timely motion requesting a six-month extension to file objections. The district court

denied the motion and adopted the magistrate’s recommendation, dismissing the

remaining claims. After unsuccessfully moving to alter or amend the judgment under

Fed. R. Civ. P. 59(e), Ingram filed a timely appeal to this court.

                                            II

      Before proceeding to the merits, there are two threshold issues we must

address: whether the appeal should be dismissed for Ingram’s failure to pre-pay the

filing fee under 28 U.S.C. § 1915(g), or for his failure to timely object to the

magistrate’s recommendation.

                                            A

      Before appealing a district court order, a prisoner must pre-pay the entire filing

fee unless granted leave to proceed in forma pauperis (“IFP”). Section 1915(g)

prohibits a prisoner from proceeding IFP if he has, “on 3 or more prior occasions,

while incarcerated or detained in any facility, brought an action or appeal in a court

of the United States that was dismissed on the grounds that it [was] frivolous,

malicious, or fail[ed] to state a claim.” An exception applies if “the prisoner is under

imminent danger of serious physical injury.” § 1915(g). To meet this exception, a

prisoner must “make specific, credible allegations of imminent danger of serious

physical harm.” Hafed v. Fed. Bureau of Prisons, 635 F.3d 1172, 1179 (10th Cir.

2011) (quotation and alteration omitted).



                                            3
      In response to an order to show cause, Ingram does not deny he has “three

strikes” that disqualify him from proceeding IFP, but he argues that his appeal falls

within the “imminent danger” exception. He refers to the numerous allegations of

ongoing medical conditions and disabilities detailed in the FAC, and asserts that he

will suffer increased pain and exacerbation of his medical conditions without

immediate court intervention. We conclude that Ingram has satisfied the “imminent

danger” exception and may proceed without full pre-payment of fees.2

                                            B

      Under the “firm-waiver rule,” failure to object to a magistrate judge’s

recommendation “waives appellate review of both factual and legal questions.”

Davis v. Clifford, 825 F.3d 1131, 1137 n.3 (10th Cir. 2016) (quotation omitted). We

may depart from this rule when “the interests of justice require.” Duffield v.

Jackson, 545 F.3d 1234, 1237 (10th Cir. 2008) (quotations omitted). “Although

‘interests of justice’ is a rather elusive concept, we have considered factors such as a

pro se litigant’s effort to comply, the force and plausibility of the explanation for his

failure to comply, and the importance of the issues raised.” Id. at 1238 (citation,

quotations, and italics omitted). Determining the importance of the issues “is similar


      2
        We lack jurisdiction to consider Ingram’s separate arguments regarding the
propriety of the district court filing fee imposed by the magistrate judge. Although
Ingram filed a motion for reconsideration of the magistrate judge’s IFP order, he did
not timely seek district court review of the denial of that motion. See Fed. R. Civ. P.
72(a); 28 U.S.C. § 636(b)(1)(A). We do not have jurisdiction to directly review
interlocutory orders issued under § 636(b)(1)(A) by a magistrate judge. SEC v.
Merrill Scott & Assocs., Ltd., 600 F.3d 1262, 1269 (10th Cir. 2010).

                                            4
to reviewing for plain error,” which requires a showing of “(1) error, (2) that is plain,

which (3) affects substantial rights, and which (4) seriously affects the fairness,

integrity, or public reputation of judicial proceedings.” Id. (quotations omitted).

      We conclude this test is satisfied as to one claim. As explained further infra,

Ingram alleged a plausible Eighth Amendment claim against McKay, which both the

magistrate judge and district judge failed to address. Ingram timely notified the

district court of his intention to object and requested additional time, citing pain and

cognitive impairment, as well as difficulties conducting legal research and writing.

He explained that his handwritten nine-page motion for an extension of time had

taken him nine days to draft. This is a sufficient showing of Ingram’s efforts to

comply and his reasons for being unable do so. We will therefore excuse his waiver

in order to reach this claim. However, we conclude that the magistrate judge’s

recommendations as to Ingram’s remaining Eighth Amendment claims and the

application of Eleventh Amendment immunity are not plainly erroneous.

Accordingly, the “interests of justice” do not warrant their reconsideration.3

                                           III

      We review de novo the district court’s Rule 12(b)(6) and § 1915(e)(2)(B)

dismissal of Ingram’s claims. Kay v. Bemis, 500 F.3d 1214, 1217 (10th Cir. 2007).

“Dismissal of a pro se complaint for failure to state a claim is proper only where it is

      3
         Ingram separately argues the dismissal of all claims must be reversed because
both judges below should have been recused pursuant to 28 U.S.C. § 455. However,
his only asserted basis for recusal is the courts’ failure to rule in his favor, which is
insufficient. United States v. Cooley, 1 F.3d 985, 993-94 (10th Cir. 1993).

                                            5
obvious that the plaintiff cannot prevail on the facts he has alleged and it would be

futile to give him an opportunity to amend.” Id. (quotation omitted). We review

Ingram’s pro se complaint liberally. Id.

                                           A

      Ingram challenges the district court’s § 1915 dismissal of his ADA and

Rehabilitation Act claims asserted against the CDOC defendants, based on their

failure to make reasonable accommodations. Because these claims are analyzed

under the same standards, we discuss them together. See Miller ex rel. S.M. v. Bd. of

Educ., 565 F.3d 1232, 1245 (10th Cir. 2009). Both statutes apply to inmates in state

prisons and prohibit discrimination based on disability in the availability of public

services. See Pa. Dep’t of Corr. v. Yeskey, 524 U.S. 206, 209 (1998); Stanley v.

Litscher, 213 F.3d 340, 343 (7th Cir. 2000) (“The Supreme Court has held that the

ADA applies to prisons and its reasoning is equally applicable to the Rehabilitation

Act.” (citation omitted)). To state a failure-to-accommodate claim under either

provision, Ingram must show: (1) he is a qualified individual with a disability; (2) he

was “either excluded from participation in or denied the benefits of some public

entity’s services, programs, or activities”; (3) such exclusion or denial was by reason

of his disability; and (4) SCF knew he was disabled and required an accommodation.

J.V. v. Albuquerque Pub. Sch., 813 F.3d 1289, 1295, 1299 (10th Cir. 2016).

      The district court dismissed these claims, concluding the FAC failed to allege

that Ingram was excluded from any specific services. But Ingram’s allegation that he



                                           6
was deprived access to his medications is sufficient to state a claim.4 Ingram

complains that he must stand in a long outdoor line, even in cold weather, to receive

his prescription medications for high blood pressure, asthma, dysphagia, migraines,

and chronic arthritis pain. He alleges he is medically restricted from standing more

than thirty minutes at a time, and that prolonged standing, particularly in cold

weather, aggravates his medical conditions, including neuropathic foot pain, knee

pain, left hip pain, lower-back pain/spasms, and mid-back pain. To avoid these

consequences, he must sometimes forego receiving his prescribed medications.

Ingram asserts that defendants have denied his requests for accommodations, such as

exempting him from standing in long medical lines, moving the lines indoors, or

constructing an enclosure in which inmates can stand while waiting.

      Assertions of medical malpractice or failure to provide medical treatment

generally do not rise to the level of an ADA or Rehabilitation Act violation. See,

e.g., Fitzgerald v. Corr. Corp. of Am., 403 F.3d 1134, 1144 (10th Cir. 2005).

Ingram’s claim, however, does not involve medical treatment but instead alleges that

defendants have created a temporal/spatial barrier to his obtaining the care already

      4
         The FAC also cites lack of access to various Christian activities but does not
describe any specific barriers to participation. It merely asserts that if SCF provided
Ingram with his requested accommodations, he would feel more rested and better
able to participate. This is insufficient to state a failure-to-accommodate claim.
       Additionally, the FAC alleges denial of certain employment opportunities.
Prior to Yeskey, we held that neither the ADA nor the Rehabilitation Act apply to
prison employment. White v. Colorado, 82 F.3d 364, 367 (10th Cir. 1996). Even
assuming that Yeskey has opened the door to such claims, Ingram has failed to show
that his proposed accommodation—working part-time for full-time pay—is
reasonable.

                                           7
prescribed to him. These allegations are sufficient to state a non-frivolous claim

under the ADA and Rehabilitation Act.5

                                           B

      Ingram also challenges the district court’s Rule 12(b)(6) dismissal of his

Eighth Amendment claims. To prevail on these claims, Ingram must show that a

prison official “knows of and disregards an excessive risk to inmate health or safety;

the official must both be aware of facts from which the inference could be drawn that

a substantial risk of serious harm exists, and he must also draw the inference.” Self

v. Crum, 439 F.3d 1227, 1231 (10th Cir. 2006) (quotation omitted). As stated, supra,

the sole Eighth Amendment claim we may consider after application of the “firm-

waiver rule” is Ingram’s deliberate indifference claim against McKay. Specifically,

we consider only Ingram’s allegation that McKay was deliberately indifferent to the

dangers posed by approving Ingram for kitchen work—work that requires prolonged

standing and heavy lifting—notwithstanding a medical order limiting his standing to

no more than thirty minutes at a time. Neither the magistrate judge nor the district

court specifically addressed this claim.

      “In the work assignment context, prison officials are deliberately indifferent

when they knowingly compel convicts to perform physical labor which is beyond

their strength, or which constitutes a danger to their health, or which is unduly


      5
        The district court’s other rationale for dismissal—that the FAC failed to
allege defendants acted with a discriminatory motive—does not apply to failure-to-
accommodate claims. See Punt v. Kelly Servs., 862 F.3d 1040 (10th Cir. 2017).

                                           8
painful.” Choate v. Lockhart, 7 F.3d 1370, 1374 (8th Cir. 1993) (quotations and

ellipses omitted). In an unpublished decision, this court held that an inmate stated a

claim against a nurse for allegedly approving him for kitchen duty even though she

knew that a medical order prevented him from performing such work. Bloom v.

McPherson, 346 F. App’x 368, 373 (10th Cir. 2009) (unpublished). Construed

liberally, the FAC plausibly states an Eighth Amendment claim similar to the claim

deemed sufficient in Bloom. Accordingly, we conclude the district court erred in

dismissing this claim without consideration or analysis.

                                           IV

      For the foregoing reasons, we REVERSE and REMAND the dismissal of

Ingram’s ADA and Rehabilitation Act claims premised on lack of access to

prescribed medications, and his Eighth Amendment claim alleging that McKay acted

with deliberate indifference in approving Ingram for kitchen work. We DISMISS

Ingram’s challenges to the district court’s IFP order for lack of appellate jurisdiction.

We otherwise AFFIRM the district court’s challenged orders and judgment.

      The pending orders to show cause are discharged, and Ingram’s motion to

proceed on appeal in forma pauperis is GRANTED. We remind him of his

obligation to continue making partial payments until the entire fee has been paid.


                                            Entered for the Court


                                            Carlos F. Lucero
                                            Circuit Judge


                                            9
