Defendant's Attorney: District Court, Tulsa County, Oklahoma
Description: Oklahoma City, Oklahoma personal injury lawyer represented Plaintiff, who sued Defendants on civil rights violation theories.
"Plaintiff filed this action pursuant to 42 U.S.C. § 1983, alleging the violation of his constitutional rights. Pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).
Plaintiff's claims arose from his incarceration at a private prison facility. He contended Defendant failed to keep him safe from assault and to provide adequate mental health care following the assault. Plaintiff named Defendants Topping, Weaks, and Garrett only in their official capacities. Although a § 1983 claim can be pursued against a government official acting in his or her official capacity-which is the same as suing the governmental unit employing that official-here Plaintiff is seeking relief from employees of a private prison. A private prison company may be held liable under 42 U.S.C. § 1983; however, its employees are not state actors subject to official capacity claims. See Jones v. Barry, 33 Fed.Appx. 967, 971 n.5 (10th Cir. 2002); Tenison v. Byrd, 826 Fed.Appx. 682, 687 (10th Cir. 2020). Accordingly, all § 1983 claims against Defendants Topping, Weeks, and Garrett are subject to dismissal.
As noted, Plaintiff sought relief for injuries allegedly inflicted while incarcerated in a private prison, one operated by Defendant GEO Group.
An official policy or custom may take one of the following forms:
(1) a formal regulation or policy statement; (2) an informal custom amounting to a widespread practice that, although not authorized by written law or express municipal policy, is so permanent and well settled as to constitute a custom or usage with the force of law; (3) the decisions of employees with final policymaking authority; (4) the ratification by such final policymakers of the decisions - and the basis for them - of subordinates to whom authority was delegated subject to these policymakers' review and approval; or (5) the failure to adequately train or supervise employees, so long as that failure results from deliberate indifference to the injuries that may be caused.
Bryson v. City of Oklahoma City, 627 F.3d 784, 788 (10th Cir. 2010) (quotation and alteration marks omitted). Merely referencing an alleged “no happy moves” policy or custom without reference to facts to support any of the above theories is insufficient. Additionally, the term “no happy moves” is not inherently descriptive. However, as argued by Plaintiff, the Court finds that he should be granted leave to amend in an effort to state a claim against GEO Group with regard to the alleged refusal to move him from his cell despite his complaints. The Report and Recommendation is hereby adopted with regard to dismissal of the claims against the GEO Group with leave to amend as set forth below.