Ford v. GEO Group Inc

Filing 45

ORDER ADOPTING REPORT AND RECOMMENDATION for 33 Motion to Dismiss filed by GEO Group Inc, 43 Report and Recommendation. The Court ADOPTS the Report and Recommendation. [Doc. 43]. DefendantsMotion to Dismiss [Doc. 33] is therefore GRANTED. Signed by Honorable David L. Russell on 9/8/17. (jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
ERIC JUAN FORD,
Plaintiff,
v.
GEO GROUP INC.,
Defendant.

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Case No. CIV-15-1007-R

ORDER
Before the Court is the Report and Recommendation of United States Magistrate
Judge Charles B. Goodwin recommending that Defendant’s Motion to Dismiss be
GRANTED. [Doc. 43]. Plaintiff has objected. [Doc. 144]. The Court reviews the Report
and Recommendation de novo in light of Plaintiff’s objection and grants Defendant’s
Motion to Dismiss.
I. Background
Plaintiff Eric Juan Ford, a pro se Oklahoma state prisoner, filed this Second
Amended Complaint against GEO Group, Inc. (“GEO”) for negligence. [Doc. 26]. The
Court found that Plaintiff’s first complaint failed to assert proper diversity jurisdiction, and
it granted leave to amend. [Doc. 23]. The Court referred Plaintiff’s Second Amended
Complaint to the Magistrate Judge. [Doc. 27]. Defendant moved to dismiss, arguing that
Plaintiff has failed to comply with the Governmental Tort Claims Act’s (“GTCA”) notice
provisions, thereby depriving the Court of jurisdiction. [Doc. 33]. See Okla. Stat. tit. 57,
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§ 566.4 (citing tit. 51, § 151 et seq.). Plaintiff responded that the Court has jurisdiction over
his negligence per se claim. [Doc. 35]. Defendant replied that while diversity jurisdiction
is proper, the GTCA’s notice provision still bars the Court from hearing Plaintiff’s claim.
[Doc. 37]. The Magistrate Judge reviewed the filings and recommended that the Court
dismiss Plaintiff’s claim for failure to demonstrate proper notice under the GTCA. [Doc.
43]. Plaintiff objected, arguing that the State is exempt from tort liability under the GTCA
and the Court maintains subject matter jurisdiction. [Doc. 44].
II. Standard of Review
A complaint may be dismissed upon motion for “failure to state a claim upon which
relief can be granted.” Fed. R. Civ. P. 12(b)(6). Dismissal is proper “if, viewing the wellpleaded factual allegations in the complaint as true and in the light most favorable to the
non-moving party, the complaint does not contain ‘enough facts to state a claim to relief
that is plausible on its face.’” Macarthur v. San Juan County, 497 F.3d 1057, 1064 (10th
Cir. 2007) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 (2007)); see
Aschcroft v. Iqbal, 556 U.S. 662, 676–80 (2009). The plaintiff cannot merely give “labels
and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly,
550 U.S. at 555. Such conclusory allegations are not entitled to the court’s presumption for
the plaintiff. Instead, the plaintiff must plead facts that at least makes the claims plausible
and raise the “right of relief above the speculative level.” Id. at 558.
III. Jurisdiction
Plaintiff correctly notes that subject matter jurisdiction is proper, but fails to
overcome the lack of required notice under the GTCA. To appear in federal court, the
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parties must affirmatively demonstrate subject matter jurisdiction. See U.S. Const. art. III,
§ 2, cl. 1. Subject matter jurisdiction exists in federal question cases or those in which the
parties are diverse. See id. Plaintiff’s Second Amended Complaint properly asserts
diversity jurisdiction—Plaintiff is an Oklahoma citizen and Defendant is a Florida
corporation with its principal place of business in Florida. [Doc. 26]. Therefore, Plaintiff
correctly asserts subject matter jurisdiction.
Whereas subject matter jurisdiction is a Constitutional requirement, the GTCA
imposes an additional statutory requirement lacking in this case: notice. The GTCA
provides a limited waiver of state sovereign immunity.1 See Okla. Stat. tit. 51, § 156. Its
notice provisions apply to “any claim against a private correctional contractor and its
employees for actions taken pursuant to or in connection with a government contract.”
Okla. Stat. tit. 57, § 566.4(B)(2). The claimant must provide written notice within one year
after loss that states “the date, time, place and circumstances of the claim, the identity of
the [government contractor] involved, the amount of compensation or other relief
demanded,” the claimant’s identifying information, and their healthcare information. Okla.
Stat. tit. 51, § 156. The claimant can only then initiate a suit within 180 days after their
claim has been “denied in whole or in part.” Id. at § 157; see Dorrough v. Geo Grp., Inc.,
No. CIV-14-1389-D, 2016 WL 3829142, at *8 (W.D. Okla. July 12, 2016); Hall v. GEO

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Courts differ as to whether state sovereign immunity presents a jurisdictional limitation asserted under
Fed. R. Civ. Pro. 12(b)(1) and (12)(b)(2) or a quasi-jurisdictional prerequisite to bringing a suit asserted
under Rule 12(b)(6). See Note, How to Assert State Sovereign Immunity Under the Federal Rules of Civil
Procedure, 69 VAN. L. REV. 761, 796–800. Plaintiff’s case also differs somewhat in that Defendant, as a
private contractor with the State, only maintains statutory immunity, not Eleventh Amendment sovereign
immunity. Nonetheless, given Plaintiff’s lack of GTCA notice, his claim fails under both a subject matter
jurisdictional approach and a quasi-jurisdictional approach.

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Group, Inc., 324 P.3d 399, 400–01 (Okla. 2014) (“The GTCA is the exclusive means by
which a plaintiff can recover from a governmental entity for tort violations based on state
law. . . . Compliance with . . . the notice requirement[] is jurisdictional as a matter of
substantive Oklahoma law.”). Here, Plaintiff has failed to provide any evidence of notice.
Therefore, Plaintiff’s claim is barred by the GTCA.
IV. Federal Substantive Law Does Not Apply
Plaintiff improperly cites federal substantive law in his diversity action. Plaintiff’s
Response to Defendant’s Motion to Dismiss [Doc. 35] relies on the Court’s ruling in his
favor in a prior case. Plaintiff filed a 2013 action under 42 U.S.C. § 1983 against
Defendant, and the Court excused Plaintiff from exhausting administrative remedies. See
Civ Case No. CIV-13-1013 [Doc. 44]. However, Plaintiff brought this case under
Oklahoma’s GTCA. In a diversity case, federal law determines procedural issues while
state law controls substantive issues. See Erie R. Co. v. Tompkins, 304 U.S. 64, 78 (1938).
Plaintiff’s citation to a prior unrelated ruling carries no weight here.
Plaintiff’s argument under the Prison Litigation Reform Act (“PLRA”) is likewise
without merit. The PLRA imposes an exhaustion requirement on prisoners’ federal
litigation. See 42 U.S.C. § 1997e. Plaintiff, however, brings a state law negligence claim
governed by the GTCA, not the PLRA. Again, Plaintiff’s GTCA claim fails.
The Court thus ADOPTS the Report and Recommendation. [Doc. 43]. Defendant’s
Motion to Dismiss [Doc. 33] is therefore GRANTED.

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IT IS SO ORDERED this 8th day of September, 2017.

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