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Johnson v. GEO Group, Inc.

Court of Appeals of Oklahoma, Division II

June 15, 2018

KENNETH RAY JOHNSON, individually; and RICHARD BALDWIN, individually, Plaintiffs/Appellants,
v.
GEO GROUP, INC., STATE OF OKLAHOMA, ex rel., OKLAHOMA DEPARTMENT OF CORRECTIONS, a state political subdivision, Defendants/Appellees.

          Mandate Issued: 03/13/2019

          APPEAL FROM THE DISTRICT COURT OF COMANCHE COUNTY, OKLAHOMA HONORABLE GERALD NEUWIRTH, TRIAL JUDGE

          Lauri J. Miller, MILLER LAW FIRM, P.C., Oklahoma City, Oklahoma, for Plaintiffs/Appellants

          Thomas G. Ferguson, Jr., WALKER, FERGUSON & FERGUSON, Oklahoma City, Oklahoma, for Defendant/Appellee GEO Group, Inc.

          Kindanne C. Jones, OFFICE OF ATTORNEY GENERAL, Oklahoma City, Oklahoma, for Defendant/Appellee State of Oklahoma, ex rel., Oklahoma Department of Corrections

          JOHN F. FISCHER, JUDGE

         ¶1 Kenneth Ray Johnson sued the GEO Group, Inc., GEO Care, and their employees Kirk Smith and Connie Wood (the GEO parties) concerning two alleged assaults while he was in the custody of the Department of Corrections and incarcerated at GEO's Lawton Correctional Facility. Johnson further alleged that he was denied medical care for the injuries he suffered as a result of the assaults. Johnson also sued the DOC alleging that he continued to be denied medical care after he was transferred from GEO's facility back to a DOC facility. Richard Baldwin sued the DOC alleging it improperly disclosed his medical, psychological and juvenile criminal records to counsel for GEO. Johnson and Baldwin appeal the district court's judgment in favor of the defendants granting their motions for summary judgment. The appeal has been assigned to the accelerated docket pursuant to Oklahoma Supreme Court Rule 1.36(b), 12 O.S.Supp. 2013, ch. 15, app. 1, and the matter is submitted without appellate briefing.

         ¶2 We affirm the judgment in favor of the DOC as to Baldwin's claim because the undisputed facts in this record show that the DOC did not disclose Baldwin's medical, psychological or juvenile criminal records. As to Johnson's claim against the DOC, we affirm that portion of the judgment regarding Johnson's tort claims because the DOC is immune from suit for those alleged torts. However, the DOC is not immune to the extent that it denied medical care for Johnson's serious medical needs in violation of his rights protected by Article 2, section 9 of the Oklahoma Constitution. We vacate that portion of the district court's judgment and remand that aspect of Johnson's claim for further proceedings.

         ¶3 We vacate the judgment in favor of the GEO parties because Johnson complied with the notice provisions of the Governmental Tort Claims Act, 51 O.S.2011 §§ 151 to 172, and filed his action within the applicable statute of limitations, and there are issues of fact concerning when Johnson's cause of action accrued. That aspect of this case is also remanded for further proceedings.

         BACKGROUND

         ¶4 At the time the events precipitating Johnson and Baldwin's claims occurred, both men were in the custody of the DOC. Pursuant to a contract between the DOC and the GEO Group, they were incarcerated at GEO's Lawton Correctional Facility, a private prison. Johnson alleges that he was physically assaulted on two occasions by a GEO correctional officer and that he was denied medical care for his injuries after the assaults. The alleged assaults occurred in late March and early April of 2012. Shortly thereafter, Johnson was transferred back to a DOC facility where he stayed until he was released in March of 2013. After his return to a DOC facility, Johnson sued the GEO Group and its correctional officer in federal court regarding the alleged assaults. Johnson's federal court complaint was filed on April 19, 2012, and alleged that the GEO Group failed to properly train and supervise its correctional officer and that its medical personnel refused to provide treatment for the injuries Johnson suffered as a result of the assaults. Johnson's claim against the GEO parties in this case is based only on the alleged denial of medical care. Johnson's amended petition states: "No federal causes of action are sought at this time by Plaintiffs."

         ¶5 Baldwin claims to have been a witness to one of the alleged assaults and his deposition was taken in conjunction with Johnson's federal suit. Baldwin's claim is based on an alleged improper and unauthorized disclosure of his medical, psychological and juvenile criminal records which were then used as the basis for questioning him during his deposition.

         ¶6 Johnson and Baldwin filed their petition in the Comanche County district court on April 4, 2014. They named the DOC, several of its employees and the GEO parties as defendants. On February 9, 2015, Johnson and Baldwin dismissed the DOC defendants without prejudice. Both plaintiffs filed essentially the same claim against the DOC defendants in the district court for Oklahoma County on May 28, 2015; however, they only issued summons for and obtained service on the DOC. Johnson and Baldwin then filed an amended petition in the Comanche County case on June 1, 2015, naming only the GEO parties as defendants. The two cases proceeded independently until the DOC voluntarily agreed to have the Oklahoma County case consolidated with the Comanche County case. The transcript of the Oklahoma County case pleadings was filed in the Comanche County case on January 27, 2016.

         ¶7 Prior to the consolidation of the cases, the GEO parties filed a motion to dismiss in the Comanche County case. On January 20, 2016, the district court denied GEO's motion as to Johnson's claim but granted that motion as to Baldwin's claim. Baldwin did not seek leave to amend nor did he file an amended petition. Further, Baldwin did not appeal the order dismissing his claim. Therefore, Baldwin's claim against the GEO parties has been terminated in their favor and is not an issue in this appeal.

         ¶8 After the Oklahoma and Comanche County cases were consolidated, all of the defendants filed motions for summary judgment. Johnson and Baldwin appeal the district court's May 12, 2017, Journal Entry of Judgment granting those motions and entering judgment in favor of the defendants.

         STANDARD OF REVIEW

         ¶9 Title 12 O.S.2011 § 2056 governs the procedure for summary judgment in this case. A motion for summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." 12 O.S.2011 § 2056 (C). When deciding a motion for summary judgment, the district court considers factual matters but the ultimate decision is purely legal. Carmichael v. Beller, 1996 OK 48, ¶ 2, 914 P.2d 1051. The de novo standard controls an appellate court's review of a district court order granting summary judgment. Id. De novo review involves a plenary, independent, and non-deferential examination of the trial court's rulings of law. Neil Acquisition, L.L.C. v. Wingrod Invest. Corp., 1996 OK 125, n.1, 932 P.2d 1100.

         ANALYSIS

         ¶10 We address the plaintiffs' appeals of the judgments in favor of the GEO parties and the DOC separately.

         I. Baldwin's Claim against the DOC

         ¶11 Baldwin alleges that his juvenile criminal record was unlawfully disclosed to counsel for the GEO parties and used at his deposition. Baldwin claimed to be a witness to one of the alleged assaults on Johnson at GEO's facility. Baldwin's deposition was taken on October 29, 2013, after he was released from incarceration. During the deposition, GEO's counsel asked Baldwin if he had any criminal history prior to the conviction for which he had been incarcerated at GEO's facility. Baldwin answered "juvenile." A series of nine questions and answers followed, which appear to have been redacted later at the request of Baldwin's counsel. Baldwin sued the DOC alleging it unlawfully provided GEO's counsel his Texas juvenile records, which were used as the basis for these questions at his deposition.

         ¶12 In its motion for summary judgment, the DOC conceded that it provided some of Baldwin's records to GEO's counsel but argued that "no juvenile records nor medical/psychological records were requested or produced to [GEO's counsel]." The quoted statement is contained in an affidavit supporting the DOC's motion for summary judgment. In his response, Baldwin stated that he was unable to admit or deny the statement in the affidavit. Nonetheless, Baldwin argued: "Some how [GEO's] counsel while representing Defendant GEO in the Federal Court litigation had access to Baldwin's juvenile records and asked him specific questions."

When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must, by affidavits or as otherwise provided in this rule, set out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party.

12 O.S.2011 § 2056 (E).

Once defendant has introduced evidentiary materials indicating that there is no substantial controversy as to one fact material to plaintiff's cause of action and that this fact is in defendant's favor, plaintiff then has the burden of showing that evidence is available which would justify a trial of the issue.

Runyon v. Reid, 1973 OK 25, ¶ 13, 510 P.2d 943. The DOC's motion for summary judgment affirmatively established that if Baldwin's medical and juvenile records were improperly released, the DOC did not do so. Baldwin submitted no evidentiary material that would "justify a trial of [that] issue." Id. The district court's judgment in favor of the DOC as to Baldwin's claim is affirmed.

         II. Johnson's Appeal of the Judgment in Favor of the DOC

         ¶13 Johnson's claim against the DOC is based on the alleged assaults at GEO's facility. Johnson alleges that the DOC "failed to take proper and immediate action" after the assaults, and after he was transferred back to a DOC facility, DOC healthcare providers continued to deny him medical care. Johnson alleged that the DOC's conduct constituted various State torts including assault and battery, civil conspiracy, negligence, breach of fiduciary duty, fraud and intentional infliction of emotional distress. Johnson also alleged that this conduct violated his civil rights protected by Okla. Const. art. 2, §§ 9 and 30.

         ¶14 With respect to the latter, Johnson contends that he is asserting a" Bosh claim." In Bosh v. Cherokee County Governmental Building Authority, 2013 OK 9, 305 P.3d 994, the Oklahoma Supreme Court held that pre-trial detainees have a private right of action pursuant to Article 2, § 30 of the Oklahoma Constitution to redress the use of excessive force. This is not a Bosh case. Johnson was incarcerated as the result of a prior conviction at the time he was allegedly assaulted. Johnson's claim is governed by Okla. Const. art. 2, § 9. Bosh, 2013 OK 9, ¶ 22 (citing Washington v. Barry, 2002 OK 45, 55 P.3d 1036, and noting its holding that a private action for excessive force exists pursuant to Article 2, § 9 for incarcerated persons).

         ¶15 As related to that claim, Johnson's petition alleges that the DOC failed to take immediate action after the alleged assault to provide proper medical care, and that when he was transferred back to DOC's facility, DOC healthcare providers not only knew about the injury he suffered at the GEO facility but also intentionally denied him needed medical care. Johnson's petition alleges that they continued to deny him medical care until he was released in March of 2013. In his response to the DOC's motion for summary judgment, Johnson relied on his deposition testimony stating that DOC medical personnel not only ignored his request for medical care but also told him "to deal with the injury when he got out."

         ¶16 The DOC's reply to Johnson's response does not offer evidence contradicting Johnson's testimony or the affidavit of the physician who treated Johnson after he was released from the DOC's facility. That treating physician stated that he could not rule out the possibility that Johnson's post-incarceration injury resulted from the lack of medical care Johnson alleged while he was in DOC custody. The DOC did not offer evidence contradicting Johnson's evidence, but even if it had, that would only have created an issue of fact precluding summary judgment. Summary judgment is only proper where "there is no genuine issue as to any material fact." 12 O.S.2011 § 2056 (C). See Winston v. Stewart & Elder, P.C., 2002 OK 68, ¶ 10, 55 P.3d 1063 (noting that the district court is required to rule out all theories of liability fairly comprised within the evidentiary materials).

         ¶17 Further, and contrary to the DOC's argument, Johnson has not just sued the DOC for acts or omissions committed by its contractor, the GEO Group or the GEO Group's employees. Johnson's claim against the DOC is based on the DOC's alleged failure to act while he was in DOC custody and incarcerated in GEO's facility, as well as for the DOC's failure to provide medical care after he was transferred back to a DOC facility. The record shows that Johnson was transferred from the GEO facility to a DOC facility on April 13, 2012, shortly after the alleged assaults, and that he was released from custody by the DOC on March 25, 2013. As a result, Johnson's claim against the DOC is not, as the DOC argues, based on acts that occurred prior ...


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