KENNETH RAY JOHNSON, individually; and RICHARD BALDWIN, individually, Plaintiffs/Appellants,
GEO GROUP, INC., STATE OF OKLAHOMA, ex rel., OKLAHOMA DEPARTMENT OF CORRECTIONS, a state political subdivision, Defendants/Appellees.
Mandate Issued: 03/13/2019
FROM THE DISTRICT COURT OF COMANCHE COUNTY, OKLAHOMA
HONORABLE GERALD NEUWIRTH, TRIAL JUDGE
J. Miller, MILLER LAW FIRM, P.C., Oklahoma City, Oklahoma,
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
F. FISCHER, JUDGE
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
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.
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.
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."
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
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.
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.
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.
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.
We address the plaintiffs' appeals of the judgments in
favor of the GEO parties and the DOC separately.
Baldwin's Claim against the DOC
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.
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
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
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.
Johnson's Appeal of the Judgment in Favor of the DOC
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
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
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
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).
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