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Kemp v. MS. Canada

United States District Court, E.D. Oklahoma

August 19, 2019

DEWAYNE KEMP, Plaintiff,
MS. CANADA, CORECIVIC, and D.C.F., Defendants.



         Plaintiff, a pro se state prisoner incarcerated at Davis Correctional Facility (DCF) in Holdenville, Oklahoma, has filed this civil rights complaint pursuant to 42 U.S.C. § 1983, seeking relief for alleged constitutional violations at his facility and requesting monetary relief (Dkt. 1). The defendants listed in caption are Ms. Canada, DCF mail room employee; CoreCivic; and DCF. The body of the complaint, however, does not include CoreCivic as a defendant.

         Plaintiff alleges Defendant Canada mishandled his legal mail on May 16, 2019, when she failed to give him a legal letter from the Oklahoma City courthouse (Dkt. 1 at 4). He claims he did not know what the letter contained, and “it could of been anything such as a deadline for me to get back in court to fight for my freedom.” Id. He speculates that if it contained a deadline, he will “have to stay in prison because D.C.F. workers lost my legal mail.” Id. Plaintiff makes no specific claims about Defendants DCF or CoreCivic. After review of the complaint, the Court finds Plaintiff must file an amended civil rights complaint on the Court's form, as set forth below.

         Screening/Dismissal Standards

         Federal courts must engage in a preliminary screening of cases in which prisoners seek redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must identify any cognizable claims and dismiss any claims which are frivolous, malicious, fail to state a claim upon which relief can be granted, or seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b); 28 U.S.C. § 1915(e)(2)(B).

         The pleading standard for all civil actions was articulated in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007). See Ashcroft v. Iqbal, 556 U.S. 662, 684 (2009). To avoid dismissal for failure to state a claim under Fed.R.Civ.P. 12(b)(6), a complaint must present factual allegations, assumed to be true, that “raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. The complaint must contain “enough facts to state a claim to relief that is plausible on its face.” Id. at 570. A court must accept all the well-pleaded allegations of the complaint as true, even if doubtful in fact, and must construe the allegations in the light most favorable to the plaintiff. Id. at 555-56. “So, when the allegations in a complaint, however true, could not raise a claim of entitlement to relief, ” the cause of action should be dismissed. Id. at 558. The Court applies the same standard of review for dismissals under 28 U.S.C. § 1915(e)(2)(B)(ii) that is employed for Fed.R.Civ.P. 12(b)(6) motions to dismiss for failure to state a claim. Kay v. Bemis, 500 F.3d 1214, 1217-18 (10th Cir. 2007).

         A pro se plaintiff's complaint must be broadly construed under this standard. Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). The generous construction to be given to the pro se litigant's allegations, however, “does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). Notwithstanding a pro se plaintiff's various mistakes or misunderstandings of legal doctrines or procedural requirements, “if a court can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail, it should do so . . . .” Id. A reviewing court need not accept “mere conclusions characterizing pleaded facts.” Bryson v. City of Edmond, 905 F.2d 1386, 1390 (10th Cir. 1990). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (quotations and citations omitted). The court “will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).

         Defendant Davis Correctional Facility

         Plaintiff has named DCF as a defendant in this matter. DCF is a medium-security correctional center in Holdenville, Oklahoma. See (accessed on August 16, 2019). DCF is not itself a corporation or independent legal entity, but an operation of CoreCivic, a publicly traded real estate investment trust headquartered in Nashville, Tennessee. See (accessed on August 16, 2019).

         Pursuant to Federal Rule of Civil Procedure 17(b)(3), the capacity to sue or be sued by a party such as Defendant DCF is determined “by the law of the state where the court is located, ” i.e., by the law of the State of Oklahoma. Under Oklahoma law, because Defendant DCF is not a “person, corporation, partnership, or unincorporated association, ” it lacks capacity to be sued in this action. See Okla. Stat. tit. 12, § 2017(B); Fed.R.Civ.P. 17(b)(3). See, e.g., Wherry v. Gunter, No. 15-545-HE, 2016 WL 3676796, at *4 (W.D. Okla. 2016) (unpublished order adopting report and recommendation) (dismissing private prison owned by CoreCivic as lacking capacity to be sued in Oklahoma). Therefore, all claims against Defendant Davis Correctional Facility are DISMISSED pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii).

         Plaintiff's Allegations

         Plaintiff sets forth the following allegations against Defendant Ms. Canada, the DCF mail room employee:

On Thursday, May 16, 2019, Ms. Canada/mail room lady came to my cell door on FC #108 at D.C.F. with some legal mail for me. In order for me to receive my legal mail she had me sign a legal sheet of paper so she can log it in the book showing what I signed and who it came from. She gave me two (2) legal letters, but didn't give me my legal letter from OKC, OK Courthouse that I signed for. I ask Ms. Canada about it then I mark my name out and wrote by it “I didn't get this legal mail.” Ms. Canada told me she will try to find it and bring it back, but never did.
Due to the fact I don't know what that legal mail was that she lost/misplaced when it could of been anything such as a deadline for me to get back in court to fight for my freedom and I miss it I'll have to stay ...

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