United States District Court, W.D. Oklahoma
TIMOTHY D. DEGIUSTI, UNITED STATES DISTRICT JUDGE
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,  the Court ADOPTS the
Report as stated more fully below.
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.
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. 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.
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.
assuming Plaintiff had been diligently pursuing his rights,
which the Court does for purposes of this Order,
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.
the Magistrate Judge's Report and Recommendation is
ADOPTED as set forth herein. A judgment
shall be issued forthwith.
IS SO ORDERED.
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 ...