Davis v. Core Civic, Inc. et al

Filing 253

OPINION AND ORDER by Judge Ronald A. White : Granting 191 Defendant Darrell Moore's motion to dismiss Mr. Moore from this action for Plaintiff's failure to state a claim upon which relief may be granted. See Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B)(ii). (acg, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF OKLAHOMA
EZEKIEL DAVIS,
Plaintiff,
v.
CORECIVIC, INC., et al.,
Defendants.

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No. CIV 17-293-RAW-SPS

OPINION AND ORDER
This action is before the Court on Defendant Darrell Moore’s motion to dismiss Mr.
Moore from this action (Dkt. 191). Plaintiff is a pro se prisoner in the custody of the
Oklahoma Department of Corrections who is incarcerated at Oklahoma State Penitentiary in
McAlester, Oklahoma.
Plaintiff’s Allegations
Plaintiff brought this action under the authority of 42 U.S.C. § 1983, seeking relief
for alleged constitutional violations during his incarceration at Davis Correctional Facility
(DCF) in Holdenville, Oklahoma.1 Mr. Moore is one of 24 remaining defendants named in
Plaintiff’s amended complaint (Dkt. 169). Plaintiff makes the following allegations against
Defendant Moore:
Defendant Darrell L. Moore is the attorney for CoreCivic-DCF. Upon
Plaintiff’s arrival at DCF May 30, 2017, on June 1, 2017 I made Willa Burney
aware of all of my deadlines, she did not know what a “statutory or rule
imposed” deadline was, however as soon as she saw on the Request to Staff
that I was suing Corrections Corporations of America (CCA) she targeted me.
I am alleging ODOC General Counsel, the prison officials at the Lawton
Correctional Facility (LCF) and Darrell L. Moore contacted James Yates,
Warden, and Willa Burney, and told them to deny me access to court by
placing me on grievance restriction, 29 days after I arrived at this facility.
Defendant Moore told Willa Burney to not make me copies so I could try to

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Plaintiff alleges DCF is owned by Defendant CoreCivic, Inc. (Dkt. 169 at 15).

get the Tenth Circuit to rehear Davis v. CCA, CF-16-6047 (10th Cir.) (W.D.
Okla. CIV-13-1174-HE).
Id. at 16-17. Plaintiff further claims:
I believe that Ms. Burney was told by Darrell Moore about my past lawsuits,
my having gotten CCA employees filed [sic] even wardens, and Darrell Moore
got McBurney to monitor and intercept all of my legal documents, and told her
not to filed [sic] my RTS that are the first step in the grievance process.
Id. at 27.
Plaintiff asserts Defendant Moore is involved in a civil conspiracy against him:
The defendants [sic] retaliation of the defendants toward me was on the
direction of their attorney Darrell L. Moore, and the defendants were so
arrogate [sic] when they told me what Darrell Moore had told them, and the
defendants acted as if they were right in denying me access to the court/law
library, failed to properly file Request to Staff per ODOC Policy OP-090124,
read my legal documents and sent them to Darrell L. Moore. . . .
Obviously, on 8-24-17, Dr. Sanders engaged in conduct to conspire to deny me
access to adequate medical care for reasons that has [sic] nothing to do with
my serious medical needed [sic], fabricating chart review in order to create
sham facts, because Darrell L. Moore is telling the doctor what to say.
Id. at 49, 50-51.
Standard of Review
The pleading standard for all civil actions was articulated in Bell Atl. Corp. v.
Twombly, 550 U.S. 544 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To avoid
dismissal for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a complaint must present
factual allegations, assumed to be true, that “raise a right to relief above the speculative
level.” Twombly, 550 U.S. at 555. The complaint must contain “enough facts to state a
claim to relief that is plausible on its face.” Id. at 570. A court must accept all the wellpleaded allegations of the complaint as true, even if doubtful in fact, and must construe the
allegations in the light most favorable to the plaintiff. Id. at 555-56. “So, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief,” the
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cause of action should be dismissed. Id. at 558. The Court applies the same standard of
review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed. R. Civ.
P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214,
1217-18 (10th Cir. 2007).
A pro se plaintiff’s complaint must be broadly construed under this standard.
Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972).
The generous construction to be given to the pro se litigant’s allegations, however, “does
not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal
claim could be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

Notwithstanding a pro se plaintiff’s various mistakes or misunderstandings of legal doctrines
or procedural requirements, “if a court can reasonably read the pleadings to state a valid
claim on which the plaintiff could prevail, it should do so . . . .” Id. A reviewing court need
not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905
F.2d 1386, 1390 (10th Cir. 1990); see also Twombly, 550 U.S. at 555. The Court “will not
supply additional factual allegations to round out a plaintiff’s complaint or construct a legal
theory on a plaintiff’s behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.
1997). With these standards in mind, the Court turns to the merits of Defendant Moore’s
motion.
Discussion
Defendant Moore alleges Plaintiff has failed to state a claim under 42 U.S.C. § 1983.
Moore is a private attorney who provides legal representation to Defendant CoreCivic and
its employees who are named as defendants in certain state and federal civil suits. Moore,
however, is not an employee of DCF or CoreCivic. He, therefore, maintains he did not act
under color of state law.
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Plaintiff alleges in his response to the motion (Dkt. 192) that his complaint “does
assert that Defendant Moore a private practice attorney did direct private prison officials and
medical personnel to act, and within the statute, if a private prison act [sic] in concert with
a state official who does act under of [sic] color of state law--(42 U.S. C. sec. 1983).” Id. at
1. Plaintiff further claims:
Defendant Moore, did act under the color of state law. The defendants did act
in concert and there are affidavits that were drafted by Defendant Moore which
strongly suggest that this defendant was participating by directing other
defendants such as Dr. Fred Sanders, James Yates, Willa Burney and Terry
Underwood.
Defendant Moore may not have had anything to do with the day-to-day
operation, however, when there is a target, Mr. Moore need not have day to
day operation, when he was acting behind the sceene [sic] influencing the
other defendants [sic] actions. . . .
Plaintiff asserts that he will be able to point out instances that the defendants
[sic] response to me were told from Mr. Moore or the defendants would say
“our attorney said . . .”
Id. at 2.
“Section 1983 provides a federal civil remedy for the ‘deprivation of any rights,
privileges, or immunities secured by the Constitution’ by any person acting under color of
state law.” McCarty v. Gilchrist, 646 F.3d 1281, 1285 (10th Cir. 2011) (quoting 42 U.S.C.
§ 1983). After careful review, the Court finds Plaintiff has not pleaded sufficient facts to
allow the court to reasonably infer Defendant Moore acted under color of state law. “[I]n
order to hold a private individual liable under § 1983, it must be shown that the private
person was jointly engaged with state officials in the challenged action, or has obtained
significant aid from state officials, or that the private individual’s conduct is in some other
way chargeable to the State.” Pino v. Higgs, 75 F.3d 1461, 1465 (10th Cir. 1996) (quoting
Lee v. Town of Estes Park, 821 F.2d 1112, 1114 (10th Cir. 1987)). Here, the Court finds
Plaintiff has presented only vague and conclusory allegations concerning Defendant
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Moore’s role as a private attorney.
Based on the foregoing reasons, the Court finds the allegations in Plaintiff’s
amended complaint concerning Defendant Moore do not rise to the level of a constitutional
violation. The Tenth Circuit Court of Appeals consistently has held that bald conclusions,
unsupported by allegations of fact, are legally insufficient, and pleadings containing only
such conclusory language may be summarily dismissed or stricken without a hearing. Dunn
v. White, 880 F.2d 1188, 1197 (10th Cir. 1989), cert. denied, 493 U.S. 1059 (1990);
Lorraine v. United States, 444 F.2d 1 (10th Cir. 1971).
ACCORDINGLY, Defendant Darrell Moore’s motion to dismiss Mr. Moore from
this action (Dkt. 191) is GRANTED for Plaintiff’s failure to state a claim upon which relief
may be granted. See Fed. R. Civ. P. 12(b)(6), 28 U.S.C. § 1915(e)(2)(B)(ii).
IT IS SO ORDERED this 17th day of March 2020.

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