Wright v. Petty et al

Filing 11

ORDER adopting Report and Recommendations re 9 Report and Recommendation.. Signed by Honorable Timothy D. DeGiusti on 6/26/2018. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KEITH WRIGHT,

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Plaintiff,
v.
FNU PETTY, et al.,
Defendants.

Case No. CIV-18-158-D

ORDER
Plaintiff, a California prisoner appearing pro se, brought the present action for
injuries he allegedly sustained while he was housed at the North Fork Correctional
Center (North Fork), a private prison in Sayre, Oklahoma that is owned and operated
by Corrections Corporation of America, Inc. (CCA). The matter was referred to
United States Magistrate Judge Suzanne Mitchell for initial proceedings consistent
with 28 U.S.C. § 636(b). On May 17, 2018, Judge Mitchell issued a Report and
Recommendation (Report or R&R) [Doc. No. 9] in which she recommended that
Plaintiff’s action be dismissed as time barred. Plaintiff timely filed his objection
[Doc. No. 10]. Exercising de novo review, as the Court must,1 the Court ADOPTS
the Report as stated more fully below.

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See 28 U.S.C. § 636(b)(1)(C)(“A judge of the court shall make a de novo
determination of those portions of the report or specified proposed findings or
recommendations to which objection is made. A judge of the court may accept,

BACKGROUND
According to the Complaint, Defendant Petty closed a cell door over
Plaintiff’s foot and toes, causing serious injuries. Compl. at 8 [Doc. No. 1]. Plaintiff
contends Petty had a “duty to use due care,” and her “negligent conduct resulted in
personal injury and harm to Plaintiff that was foreseeable….” Id. Plaintiff alleges
CCA failed to adequately train Petty and such negligence “was reasonably likely to
harm Plaintiff adversely ….” Id. at 10. Upon mandatory screening, Judge Mitchell
found that the Court had subject matter jurisdiction by way of diversity of citizenship
under 28 U.S.C. § 1332 and Oklahoma law governed the action because it had the
most substantial connection with the underlying facts. See R&R at 6-7.2
Applying Oklahoma law, Judge Mitchell found that Plaintiff’s claims were
time barred. She noted that under the Oklahoma Governmental Tort Claims Act
(OGTCA), Plaintiff was required to provide written notice of his claim within one

reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.”).
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As noted by Judge Mitchell, Plaintiff disclaimed jurisdiction under 42 U.S.C. §
1983 and instead argued jurisdiction was present under “1. The ‘Erie Doctrine’ Erie
R.R. Co. v. Tompkins (1938) 304 U.S. 64; 2. 28 U.S.C. § 1331, 1332(a); California
Choice-of-Law Rules and Federal Case Law.” See Compl. at 2. Plaintiff did not
predicate his claims under the U.S. Constitution or any federal statute; rather, he
sought relief via state law claims.
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year, which could be tolled up to ninety days due to any incapacity.3 Calculating the
applicable time frame from the date of Plaintiff’s injury—July 23, 2014—Judge
Mitchell noted that Plaintiff had until July 17, 2016 in which to file his suit. R&R at
9. Since Plaintiff did not file his action until February 16, 2018, Judge Mitchell found
his action was untimely. Id.
DISCUSSION
Because Plaintiff is pro se, the Court liberally construes his filings, but will
not act as his advocate. See Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836,
840 (10th Cir. 2005). On appeal, Plaintiff contends the statutory period was tolled
under the doctrine of equitable tolling. Obj. at 3. To obtain equitable tolling, a
petitioner must show: (1) he has been pursuing his rights diligently, and (2) some
extraordinary circumstance stood in his way and prevented timely filing of his
action. Holland v. Florida, 560 U.S. 631, 649 (2010). This is a “strong burden” that
requires the petitioner to “show specific facts to support his claim of extraordinary
circumstances and due diligence.” Yang v. Archuleta, 525 F.3d 925, 928 (10th Cir.

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See Okla. Stat. tit. 51, §§ 156(B), (E) (“[C]laims against the state or a political
subdivision are to be presented within one (1) year of the date the loss occurs. …
The time for giving written notice of claim pursuant to the provisions of this section
does not include the time during which the person injured is unable due to
incapacitation from the injury to give such notice, not exceeding ninety (90) days of
incapacity.”). In Hall v. GEO Group, Inc., 2014 OK 22, ¶ 1, 324 P.3d 399, 401, the
Oklahoma Supreme Court held that compliance with the OGTCA was required for
an inmate to bring a tort action against a private prison facility.
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2008) (quoting Brown v. Barrow, 512 F.3d 1304, 1307 (11th Cir. 2000)). Under this
standard, the Court finds Plaintiff has failed to meet this strong burden.
Even assuming Plaintiff had been diligently pursuing his rights, which the
Court does for purposes of this Order,4 Plaintiff cites no extraordinary circumstances
which prevented the timely filing of this action. Plaintiff contends equitable tolling
is shown by the fact that North Fork staff belatedly provided an incident report.
However, the OGTCA only requires “the date, time, place and circumstances of the
claim, the identity of the state agency or agencies involved, the amount of
compensation or other relief demanded, the name, address and telephone number of
the claimant, the name, address and telephone number of any agent authorized to
settle the claim….” Okla. Stat. tit. 51, § 156(E). Thus, even accepting his allegations
as true, Plaintiff still had all the information he needed to submit a timely claim,
notwithstanding the absence of a formal report. In the Court’s view, under the
circumstances presented, this alleged failure does not constitute an “extraordinary
circumstance” that prevented Plaintiff from timely submitting his claim.
CONCLUSION
Accordingly, the Magistrate Judge’s Report and Recommendation is
ADOPTED as set forth herein. A judgment shall be issued forthwith.

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The record shows Plaintiff pursued administrative remedies through the California
Department of Corrections and Rehabilitation, which denied his claim.
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IT IS SO ORDERED this 26th day of June 2018.

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