United States District Court, W.D. Oklahoma
CHARLES B. GOODWIN UNITED STATES DISTRICT JUDGE.
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).
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.
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).
Claims Against CCA
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).
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.
Court agrees with Judge Erwin's recommendation to dismiss
Plaintiff's claims against CCA without prejudice to
Claims Against Damon Piminger
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).
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”). Plaintiff nonetheless
insists that Piminger's status as CEO of CCA
“mak[es] him respons[i]ble and indirectly
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.
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