Davis v. Core Civic, Inc. et al

Filing 262

OPINION AND ORDER by Judge Ronald A. White: Granting 190 defendant Skelton's Motion to Dismiss; denying 234 plaintiff's Motion for Production of documents and tangible things; dismissing Lotoya Edwards aka Latree na Edwards and Justin Pham without prejudice from this action. Plaintiff's motion to show cause why Defendants Brittney Summers-Hope, Joe M. Allbaugh, Latoya Edwards, Justin Pham, and Andrea Skelton 230 is construed as a response to the Court's Orders entered on July 2, 2019 226 227 . (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
Plaintiff has filed a “motion to show cause why Defendants Brittney Summers-Hope,
Joe M. Allbaugh, Latoya Edwards and Justin Pham and Andrea Skelton.” (Dkt. 230), which
the Court construes as a response to the Court’s Orders entered on July 2, 2019. (Dkts. 226,
227). He complains that when he was transferred from Davis Correctional Facility (DCF)
to Oklahoma State Penitentiary, his legal documents arrived later, and he was only allowed
one square foot of legal property pursuant to DOC policy. He also claims he has not received
all the documents he needs to show cause for his failure to properly serve the above-named
defendants, and the defendants have been uncooperative in providing their last known
addresses. Plaintiff also has filed a motion for production of documents and tangible things,
asking in part for production of the last known addresses of the above-named defendants.
(Dkt. 234).
Defendants Justin Pham and Latoya Edwards
The record shows that on April 22, 2019, the summons for Defendant Justin Pham
was returned unexecuted because Pham was an “unknown employee.” (Dkt. 209). The Court

notes that Plaintiff has filed another civil rights action in this Court in Case No. CIV-18-396RAW-KEW, and he named Justin Pham and Latoya Edwards as defendants in that case. In
response to an Order entered on March 11, 2020, in Case No. CIV-18-396-RAW-KEW,
Defendant CoreCivic advised the Court on March 16, 2020, that Defendant Justin Pham was
not employed by CoreCivic and was not an employee at DCF.
Service of the summons for Defendant Latoya Edwards, a.k.a. Latreena Edwards, was
attempted at an address provided by the United States Marshals Service on October 11, 2019.
The USM-285 Form was returned unexecuted with the notation, “Subject no longer resides
at provided address. Occupant has no idea of subject identity.” (Dkt. 246).
Because the Marshals Service has not been able to locate and serve Defendants Justin
Pham and Latoya Edwards, a.k.a. Latreena Edwards, these two defendants are DISMISSED
WITHOUT PREJUDICE from this action pursuant to Fed. R. Civ. P. 4.
Defendant Brittney Summers-Hope
In an Order entered on April 3, 2020, the Court noted that Brittney Summers-Hope
had not been served with the amended complaint at her last known address. (Dkt. 259).
Plaintiff has been sent another USM-285 Form for Ms. Summers-Hope, with directions to
complete and return it to the Court Clerk’s Office. Id. Upon receipt of the completed,
returned form, the Court will direct the United States Marshals Service to attempt service of
the amended complaint.

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Defendant Joe M. Allbaugh
On April 8, 2019, Former DOC Director Joe M. Allbaugh’s unexecuted USM-285
Form was returned unexecuted because he never was employed at DCF. (Dkt. 200).
Allbaugh’s address on the form erroneously was listed as the address for DCF. Id.
To attempt to obtain the proper address for Defendant Allbaugh, the Court has
directed the Marshals Service to contact the DOC and to send the results to the Court. (Dkt.
260). On April 3, 2020, the Court Clerk was directed to send Plaintiff a USM-285 Form for
Defendant Allbaugh. (Dkt. 261). Plaintiff was directed to complete and return the form.
Upon receipt of the completed form, the Court will direct the United States Marshals Service
to attempt service of the amended complaint.
Defendant Dr. Andrea Skelton
Defendant Dr. Andrea Skelton has filed a motion to dismiss, alleging among other
things, that she has not been properly served with the amended complaint pursuant to Fed.
R. Civ. P. 4. (Dkt. 190). To properly serve an individual within the United States, a copy of
the summons and complaint may be delivered to the individual defendant personally; a copy
may be left at the individual’s residence; or a copy may be delivered to an agent authorized
to accept such service. Fed. R. Civ. P. 4(e)(2). The Rule also provides that service may
occur pursuant to the law of the state where service is made. Fed. R. Civ. P. 4(e)(1).
Oklahoma law allows service by mail, to be accomplished “by mailing a copy of the
summons and petition by certified mail, return receipt requested and delivery restricted to the

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addressee.” Okla. Stat. tit. 12, § 2004(C)(2)(b).
The record shows the Court issued an alias summons to Defendant Skelton on June
28, 2018. (Dkt. 99). The summons was addressed to “Andrea Akelton” [sic] and was sent
by the United States Marshals Service via certified mail to Defendant Skelton in care of
“Locum Tenes” [sic]. Id. at 1. Defendant Skelton asserts that Locum Tenens is a staffing
agency that assisted in placing her with CoreCivic and DCF. The Postal Service Form 3811
(green card) was signed by “Jermaine,” and the Proof of Service, dated July 9, 2018,
indicates Defendant Skelton was served by certified U.S. Mail. (Dkt. 107 at 3-4).
Defendant Skelton alleges she was not personally served with a copy of the summons
and complaint, nor was a copy left at her residence or with an authorized service agent.
Instead, a copy was sent by certified mail to a staffing agency which was not authorized to
accept service on her behalf.
Based on this record, the Court finds Defendant Skelton was not properly served in
accordance with the Federal Rules of Civil Procedure. Therefore, Defendant Skelton’s
motion to dismiss for failure to properly serve her (Dkt. 190) is GRANTED, and she is
DISMISSED WITHOUT PREJUDICE from this action.
Motion for Production of Documents and Tangible Things
Plaintiff has filed a motion for production of documents and tangible things. (Dkt.
234). He is requesting the production of documents concerning the last known addresses for
the defendants, as well as copies of a certain memorandum, Plaintiff’s medical records,

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certain camera footage, certain incident reports, his cell assignments, a protective custody
measure, and all incident reports concerning cell assignments.
The Court finds the motion is moot with respect to the last known addresses for the
defendants, because that information has been addressed in this Opinion and Order. To the
extent Plaintiff is requesting particular documents and camera footage, the Court previously
has advised him that pursuant to Local Civil Rule 26.1, discovery material is not to be filed
with the Court. (Dkt. 88). He must follow the Federal Rules of Civil Procedure and the
corresponding Local Civil Rules with respect to discovery issues. This motion is DENIED.
ACCORDINGLY,
1.

Plaintiff’s motion to show cause why Defendants Brittney Summers-Hope, Joe
M. Allbaugh, Latoya Edwards, Justin Pham, and Andrea Skelton (Dkt. 230)
is construed as a response to the Court’s Orders entered on July 2, 2019
(Dkts. 226, 227).

2.

Defendant Justin Pham and Defendant Latoya Edwards, a.k.a. Latreena
Edwards, are DISMISSED WITHOUT PREJUDICE from this action.

3.

Upon Plaintiff’s return of completed USM-285 Forms for Defendants Brittney
Summers-Hope and Joe M. Allbaugh, the Court will direct the U.S. Marshals
Service to attempt service of these defendants. Any documents containing
the last known address of Defendant Brittney Summers-Hope or
Defendant Joe M. Allbaugh shall be filed under seal.

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4.

Defendant Skelton’s motion to dismiss (Dkt. 190) is GRANTED, and she is
DISMISSED WITHOUT PREJUDICE from this action.

5.

Plaintiff’s motion for production of documents and tangible things (Dkt. 234)
is DENIED.
IT IS SO ORDERED this 8th day of April 2020.

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