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Wright v. Petty

United States District Court, W.D. Oklahoma

June 26, 2018

KEITH WRIGHT, Plaintiff,
FNU PETTY, et al., Defendants.



         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.


         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 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.


         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. 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.


         Accordingly, the Magistrate Judge's Report and Recommendation is ADOPTED as set forth herein. A judgment shall be issued forthwith.

         IT IS SO ORDERED.



[1] 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, reject, or modify, in whole or in part, the ...

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