Mathis v. Byrd

          ORDER

          CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.

         This matter comes before the Court for review of the Report and Recommendation (Doc. No. 23) issued by United States Magistrate Judge Shon T. Erwin pursuant to 28 U.S.C. § 636(b)(1)(B) and (C).

         Plaintiff, a state prisoner appearing pro se and proceeding in forma pauperis, brought this action under 42 U.S.C. § 1983 alleging violation of his constitutional rights under the Eighth and Fourteenth Amendments to the U.S. Constitution. See Compl. (Doc. No. 1). On initial screening, Judge Erwin recommended dismissal of the Complaint for failure to state a claim upon which relief can be granted. See Report and Recommendation Dated 3/13/2019 (Doc. No. 16). By order dated April 30, 2019, the Court adopted Judge Erwin's recommendation to dismiss all claims but granted Plaintiff leave to amend. See Order Dated 4/30/2019 (Doc. No. 19). On May 17, 2019, Plaintiff filed an Amended Complaint, asserting claims against two different Defendants: (1) Core Civil of America (“CCA”), the company that operates the Cimarron Correctional Facility where Plaintiff is incarcerated; and (2) Damon Piminger, CEO of CCA. See Am. Compl. (Doc. No. 21).

         Judge Erwin has recommended that Plaintiff's Amended Complaint be dismissed on screening for failure to state a claim upon which relief can be granted. See R. & R. (Doc. No. 23) at 1; 28 U.S.C. § 1915A(b)(1). On June 7, 2019, Plaintiff filed a timely objection to the Report and Recommendation. See Pl.'s Obj. to R. & R. (Doc. No. 24). Plaintiff's objection triggers de novo review by this Court of those portions of the Report and Recommendation to which objection is made. See, e.g., United States v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3). Issues or claims raised for the first time, however, are waived. Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996).

         I. Claims Against CCA

         Judge Erwin concluded that Plaintiff fails to state a claim against CCA because he “presents no factual allegations involving CCA in the body of the Amended Complaint.” R. & R. at 4. Judge Erwin correctly noted that, as a private actor, “CCA cannot be held liable under § 1983 solely based on the actions of its employees.” Id. (collecting authorities).

         In his Objection, Plaintiff argues that “CCA is a corporation, just like any other owned and operated by a boss/CEO/or president.” Pl.'s Obj. to R. & R. at 2. Plaintiff goes on to offer several examples of lawsuits in which for-profit corporations have been held liable in tort for the acts and omissions of their employees. See Pl.'s Obj. to R. & R. at 3-4. However, the lawsuits referenced by Plaintiff are distinguishable insofar as they did not involve claims asserted under 28 U.S.C. § 1983.

         The Court agrees with Judge Erwin's recommendation to dismiss Plaintiff's claims against CCA without prejudice to refiling.

         II. Claims Against Damon Piminger

         With respect to Plaintiff's claims against Damon Piminger, Judge Erwin determined that: (1) Plaintiff fails to state an individual-capacity claim because there are no allegations that Piminger was “personally involved” in the alleged wrongdoing or that he “promulgated, created, implemented, or possessed responsibility for the continued operation of a policy that caused Plaintiff's complained of constitutional harm, ” R. & R. at 6-7; and (2) Plaintiff fails to state an official-capacity claim because, as an employee of a private prison, he is not a state official against whom such a claim can be asserted, see Id. at 5 (collecting authorities).

         In his Objection, Plaintiff acknowledges Piminger's lack of personal involvement in the alleged constitutional violation. See Pl.'s Obj. to R. & R. at 2 (“to say [P]iminger wasn't directly involved [is] correct”; “there is no policy that has Damon Piminger['s] name on it”).^[1] Plaintiff nonetheless insists that Piminger's status as CEO of CCA “mak[es] him respons[i]ble and in[]directly respons[i]ble for all CCA employees and actions of that corp[o]ration.” Pl.'s Obj. to R. & R. at 2. Plaintiff again recounts lawsuits in which corporate presidents and CEOs have been held liable in tort for the actions of their employees. See Pl.'s Obj. to R. & R. at 3-4. But again, the referenced lawsuits did not involve a claim asserted under 28 U.S.C. § 1983.

         The Court agrees with Judge Erwin's recommendations to dismiss Plaintiffs individual-capacity claim against Piminger without prejudice to refiling and to dismiss Plaintiffs official-capacity claim against Piminger with prejudice to refiling.

         CONCLUSION

         It is ...