Brown v. CoreCivic Cimarron Corrections

IN THE UNITED STATES DISTRICT COURT FOR THE

WESTERN DISTRICT OF OKLAHOMA

QUINCY D. BROWN, )

)

Plaintiff, )

)

v. ) Case No. CIV-23-650-HE

)

CORECIVIC CIMARRON )

CORRECTIONS et al., )

)

Defendants. )

REPORT AND RECOMMENDATION

Plaintiff Quincy D. Brown seeks civil rights relief under 42 U.S.C. § 1983

for alleged constitutional violations during his incarceration at the Cimarron

Correctional Facility. Doc. 1.1 United States District Judge Joe Heaton

referred this matter to the undersigned Magistrate Judge for initial

proceedings under 28 U.S.C. § 636(b)(1)(B), (C). Doc. 4. Plaintiff names as

Defendants CoreCivic, Inc. and Lieutenant Jerry Barton2 in his individual and

official capacities, along with several unnamed corrections officers (“Officers”)

in their individual and official capacities. Doc. 1, at 8-10. Defendants CoreCivic

1 Citations to a court document are to its electronic case filing designation

and pagination. Except for capitalization, quotations are verbatim unless

otherwise indicated.

2 Plaintiff names as Defendant “Mr. Brinton (Lieutenant).” Doc. 1, at 8.

But Lieutenant Jerry Barton was later served, and counsel entered an

appearance on his behalf. Docs. 37, 41.

and Barton filed a motion to dismiss Plaintiff’s complaint under Federal Rule

of Civil Procedure 12(b)(6), arguing § 1983 is not the proper avenue for civil

rights relief because Plaintiff is a federal inmate; Plaintiff responded. Docs. 43,

46. The undersigned recommends the Court grant Defendants’ motion to

dismiss.

I. Background and Plaintiff’s claims.

Plaintiff is a convicted federal prisoner in Bureau of Prisons’ custody.

Doc. 1, at 7. Plaintiff’s claims concern his incarceration at the Cimarron

Correctional Facility. See Doc. 1. CoreCivic owns and operates the facility and

the federal government contracts with CoreCivic for temporary detention of

federal inmates. Doc. 43, at 2; see also Cimarron Corr. Facility, CORECIVIC,

https://www.corecivic.com/facilities/cimarron-facility (last visited

Oct. 2, 2024).

Plaintiff claims violation of his Eighth Amendment protections against

cruel and usual punishment, alleging “excessive force[d] choking, and battery,”

Doc. 1, at 12, and “[deliberate] indifference and negligence” based on “failure

to intervene to an obvious and serious danger,” id. at 13. Plaintiff suggests he

is proceeding under § 1983. Id. at 3.

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II. The Court should grant Defendants’ motion to dismiss.

Defendants seek dismissal of Plaintiff’s claims under Federal Rule of

Civil Procedure 12(b)(6). Doc. 43. To withstand a motion to dismiss, the

complaint must allege “enough facts to state a claim to relief that is plausible

on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is

plausible if the facts alleged “raise a reasonable expectation that discovery will

reveal evidence” of the conduct necessary to establish plaintiff’s claim. Id.

at 556; see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“A claim has facial

plausibility when the plaintiff pleads factual content that allows the court to

draw the reasonable inference that the defendant is liable for the misconduct

alleged.”). The Court liberally construes a pro se litigant’s complaint, but just

like any other litigant, a pro se plaintiff bears the burden to “alleg[e] sufficient

facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991).

Defendants move for dismissal because Plaintiff “has no cause of action

under 42 U.S.C. § 1983.” Doc. 43, at 2. The Court agrees—Plaintiff has no cause

of action under § 1983 or even liberally construing his claims as arising under

Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403

U.S. 388 (1971).

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Section 1983 only allows suit against individual defendants who are

acting under color of state law and does not apply to those acting as agents of

the federal government. See Dry v. United States, 235 F.3d 1249, 1255-56 (10th

Cir. 2000). Therefore, § 1983 does not allow suit against Cimarron Correctional

Facility employees or contractors under these circumstances. See, e.g.,

Harrison v. Richardson, 2009 WL 735128, at *1-2 (D. Kan. Mar. 19, 2009)

(concluding plaintiff had not stated a cause of action under § 1983 against

employees of a private prison “that often contracts with an agency of the United

States” and which was housing state prisoners “pursuant to a contract between

federal agencies and the [state department of corrections]”); see also Lopez v.

Vladimir, No. CIV-20-255-SLP, 2020 WL 8671937, at *3 (W.D. Okla.

Nov. 18, 2020), adopted, 2021 WL 741783 (W.D. Okla. Feb. 25, 2021).3

Bivens also does not provide an avenue for relief. First, the purpose of a

Bivens remedy “is to deter federal officials from committing constitutional

violations,” and that concern is less acute when a private actor violates the

Constitution. Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 70-71 (2001). Malesko

3 Plaintiff names Defendant Barton and the Officers in their official

capacities, but private employees “do not possess an ‘official capacity’ in which

to be sued.” Tenison v. Byrd, 826 F. App’x 682, 687 (10th Cir. 2020). So the

undersigned recommends dismissal of the claims against these Defendants in

their official capacities.

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examined whether to extend a Bivens remedy for deliberate indifference to

medical needs against a private prison corporation acting under a contract

with the Federal Bureau of Prisons. 534 U.S. at 66-74. The Supreme Court

declined to extend Bivens liability to the corporation because, among other

factors, judgments against those corporations would have little deterrent effect

on federal officials. Id. at 70-71; see also Minneci v. Pollard, 565

U.S. 118, 126, 131 (2012). Similarly, no such remedy is available against

Defendant CoreCivic here.

Plaintiff also has no recourse under Bivens for alleged constitutional

violations by Defendant Barton or the Officers. Where the alleged misconduct

by a privately-employed individual is encompassed by state tort law, a plaintiff

has no remedy under Bivens and must instead “seek a remedy under state tort

law.” Minneci, 565 U.S. at 131 (declining to imply Bivens liability where “a

federal prisoner [sought] damages from privately employed personnel working

at a privately operated federal prison,” and where Defendant’s alleged conduct

was “of a kind that typically falls within the scope of traditional state tort law”).

Plaintiff explains that an Oklahoma agency denied his claims under the

state’s Governmental Tort Claims Act, OKLA. STAT. tit. 51, §§ 151-172, because

the statute does not allow for relief against government contractors operating

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prisons, Doc. 46, at 3 & Exs. 2-3 (citing OKLA. STAT. tit. 51, § 155(18)), and that

the United States Department of Justice denied his Administrative Tort Claim

because the Bureau of Prisons does not operate the Cimarron Correctional

Facility, id. at 3 & Ex. 4. But Plaintiff could still pursue a state law claim for

negligence, battery, or other torts. See Peoples v. CCA Det. Ctrs., 422

F.3d 1090, 1104 (10th Cir. 2005) (“[P]rison officials may become liable [under

state tort law] in the event that damage proximately results from a failure to

exercise reasonable care to prevent harm” to the prisoner. (internal quotation

marks and alteration omitted)); see also Manning v. Core Civic, No.

CIV-23-137-R, 2024 WL 697680, at *3 (W.D. Okla. Jan. 19, 2024),

adopted, 2024 WL 694037 (W.D. Okla. Feb. 20, 2024). Because Plaintiff may

pursue these state-law remedies, Bivens is unavailable to him. Myers v.

Leavenworth Det. Ctr., 2019 WL 2208116, at *4 (D. Kan. May 22, 2019)

(“Because Plaintiff has an alternative cause of action pursuant to Kansas state

law, he is precluded from asserting a Bivens action in federal court against [a

private federal facility] or its employees.”).

The undersigned concludes Plaintiff has not stated a valid cause of action

and so has failed to state a claim on which relief may be granted.

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III. Recommendation and notice of right to object.

For the reasons set forth above, the undersigned recommends the Court

grant Defendants’ motion and dismiss Plaintiff’s complaint in its entirety

without prejudice.4

The undersigned advises Plaintiff of his right to file an objection to this

report and recommendation with the Clerk of this Court on or before

November 22, 2024, in accordance with 28 U.S.C. § 636(b)(1) and Federal Rule

of Civil Procedure 72(b)(2). The undersigned further advises Plaintiff that

failure to make a timely objection to this report and recommendation waives

the right to appellate review of both factual and legal questions contained

herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).

This report and recommendation disposes of all issues referred to the

undersigned Magistrate Judge in this matter.

4 Plaintiff urges the Court to “maintain[] original (28 U.S.C. § 1331) and/or

supplemental jurisdiction (28 U.S.C. § 1367(a))” over his claims. Doc. 46, at 1.

Having determined the Court should dismiss Plaintiff’s federal claims, the

undersigned recommends the Court decline to exercise supplemental

jurisdiction over Plaintiff’s state claims, to the extent that he has raised any.

See 28 U.S.C. § 1367(c)(3) (permitting district courts to decline to exercise

supplemental jurisdiction where it “has dismissed all claims over which it has

original jurisdiction”); Smith v. City of Enid ex rel. Enid City Comm’n, 149

F.3d 1151, 1156 (10th Cir. 1998) (“When all federal claims have been

dismissed, the court may, and usually should, decline to exercise jurisdiction

over any remaining state claims.”).

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ENTERED this 31st day of October, 2024.

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SUZANNE MITCHELL

UNITED STATES MAGISTRATE JUDGE