United States District Court, W.D. Oklahoma
L.RUSSELL UNITED STATES DISTRICT JUDGE.
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.
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,
§ 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].
Standard of Review
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 well-pleaded 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.
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 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.
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. 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 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.
Federal Substantive Law Does Not Apply
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.
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.
Court thus ADOPTS the Report and Recommendation. [Doc. 43].
Defendant's Motion to Dismiss ...