Clark v. CoreCivic Inc et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
DEWAYNE CLARK, )
)
Plaintiff, )
)
v. ) Case No. CIV-25-775-SLP
)
CORECIVIC, INC., et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Dewayne Clark, a federal prisoner proceeding pro se, filed a Complaint
alleging state-law claims of negligence and civil conspiracy arising from a prison transport
accident and later medical care. Doc. 2. United States District Judge Scott L. Palk referred
this matter to the undersigned Magistrate Judge for initial proceedings consistent with 28
U.S.C. § 636(b)(1)(B)-(C).
Defendant CoreCivic, Inc. (“Defendant”) filed a motion to dismiss alleging
Plaintiff’s failure to exhaust administrative remedies. Doc. 20. The undersigned
recommends that the Court convert Defendant’s motion to a motion for summary
judgment, and grant summary judgment to Defendant based on a failure to exhaust
administrative remedies. The undersigned further recommends granting summary
judgment on the same grounds to the remaining, unserved defendants in this suit.
I. Background
Defendant is a private corrections company that owns and operates the Cimarron
Correctional Facility (“CCF”) in Cushing, Oklahoma. Doc. 2 at 3. CCF houses federal
detainees pursuant to a contract with the United States Marshals Service. Doc. 20 at 1;
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Doc. 19 at 2. Plaintiff alleges he was seriously injured in a prison transport accident on
September 25, 2024, while in Defendant’s custody. Doc. 2 at 2, 4, 5. Plaintiff alleges the
accident and his injuries were caused by Defendant’s transport of him in dangerous weather
conditions in a vehicle without proper safety restraints. Id. at 2, 5. Plaintiff claims
Defendant and its employees acted negligently in the operation and maintenance of the
transport vehicle, and in providing medical care after the accident. Id. at 7-11. Plaintiff
also claims Defendant engaged in negligent hiring, training, and supervision of its transport
driver and medical staff. Id. at 11-12. Finally, he claims Defendant and its employees
engaged in civil conspiracy to obstruct his access to his medical records. Id. at 12-13.
Plaintiff names Defendant, an unknown CoreCivic employee (Driver) (“Unknown
Driver”), and unknown CoreCivic medical staff (1-5) (“Unknown Medical Staff”) in his
suit. Id. at 1, 3-4. He brings claims under Oklahoma law of (1) negligence, (2) negligence
per se, (3) gross negligence, (4) medical negligence, (5) negligence hiring, training, and
supervision, and (6) civil conspiracy. Id. at 7-13. Plaintiff seeks compensatory damages
of at least $175,000 and punitive damages. Id. at 13-14. Plaintiff asserts diversity
jurisdiction, alleging he is a Missouri citizen and Defendant is a Tennessee corporation.
Id. at 3.1
1 Plaintiff does not address the citizenship of the Unknown Driver or Unknown Medical
Staff. See Doc. 2 at 4. However, as Plaintiff alleges they are employees of Defendant and
working at CCF, the undersigned presumes they are citizens of Oklahoma, which does not
defeat diversity jurisdiction. See 28 U.S.C. § 1332(a)(1) (setting forth requirements for
diversity jurisdiction, including when the parties are “citizens of different States”); cf.
Dutcher v. Matheson, 733 F.3d 980, 987 (10th Cir. 2013) (“Complete diversity is lacking
when any of the plaintiffs has the same residency as even a single defendant.”).
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After Plaintiff initially filed his Complaint in the United States District Court for the
Northern District of Oklahoma, it was transferred to this Court. After initial review of the
Petition, the Court ordered Plaintiff to serve Defendant and ordered prison officials to file
a Special Report (also known as a Martinez report). Doc. 12 at 1-2. Defendant filed a
Special Report and a motion to dismiss. Docs. 19, 20. Plaintiff filed an objection to the
Special Report and a Response to the motion to dismiss. Docs. 21, 22. Defendant filed a
Reply and Plaintiff filed a Surreply. Docs. 26, 31.
II. Conversion of Motion to Dismiss
In the motion to dismiss, Defendant argues under Federal Rule of Civil
Procedure 12(b)(6) that (1) Plaintiff failed to exhaust his administrative remedies, and
(2) those remedies were available to him. Doc. 20. Defendant relies on documents outside
the Complaint to support its motion. To support its exhaustion argument, Defendant cites
to and attaches CCF’s grievance procedures and an affidavit from Kayla Williams,
Grievance Coordinator. Doc. 20 at 3-8; Docs. 20-1, 20-2. The grievance procedures and
Ms. Williams’s affidavit are also included in the Special Report. Docs. 19-5, 19-6.
“A 12(b)(6) motion must be converted to a motion for summary judgment if ‘matters
outside the pleading are presented to and not excluded by the court.’” GFF Corp. v.
Associated Wholesale Grocers, 130 F.3d 1381, 1384 (10th Cir. 1997) (quoting Fed. R. Civ.
P. 12(d)). Generally, before converting a Rule 12(b)(6) motion to a Rule 56 motion for
summary judgment, a court must provide parties with notice of the conversion “to prevent
unfair surprise.” Arnold v. Air Midwest, Inc., 100 F.3d 857, 859 n.2 (10th Cir. 1996). Here,
the Court provided such notice in a prior Order where it notified the parties “if a defendant
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files a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and relies on
affidavits and/or documents not attached to or incorporated by reference in the Complaint,
the Court will likely convert the motion into a motion for summary judgment.” Doc. 12 at
3. The Order further stated: “Should this occur, Plaintiff is notified of his responsibility
to respond to the motion and present to the Court all relevant evidence or materials,”
including “counter-affidavits and/or documents to set forth specific facts showing that there
is a genuine issue of material fact to be litigated at trial.” Id. at 3 & n.2.
Defendant’s motion raises failure to exhaust as an affirmative defense, and it relies
on an affidavit and other documents attached to the motion and in the Special Report.2
Plaintiff had notice that he had to defend against summary judgment and argues the motion
to dismiss should be converted to a motion for summary judgment. Doc. 22 at 6-7. The
undersigned recommends that the Court convert Defendant’s motion to dismiss to one for
summary judgment. See Whitmore v. Hill, 456 F. App’x 735, 737 (10th Cir. 2012)
(upholding a district court’s conversion of defendants’ motion to dismiss into a motion for
summary judgment after finding the pro se prisoner “was on notice that, procedurally, he
had to defend against summary judgment”); see also Ishman v. Ballard, No. CIV-18-893-
2 Defendant argues the motion need not be converted to one for summary judgment as the
Tenth Circuit has “held that in deciding a Rule 12(b)(6) motion focused on exhaustion, the
District Court could consider attached administrative materials.” Doc. 20 at 3 (citing Steele
v. Federal Bureau of Prisons, 355 F.3d 1204 (10th Cir. 2003)). The holding in Steele,
however, turns on the overturned proposition that the prisoner was “required to plead
exhaustion and provide evidence of exhaustion,” and, thus, administrative materials
showing exhaustion could be considered. Steele, 355 F.3d at 1212. It is now well-settled
that it is not the prisoner’s burden to plead exhaustion. Jones v. Bock, 549 U.S. 199, 216
(2007). Accordingly, Defendant’s argument is not well-taken.
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G, 2020 WL 9219266, at *1 (W.D. Okla. July 17, 2020) (recommending conversion of a
motion to dismiss to one for summary judgment with notice to the parties similar to the
notice provided here) (R&R), adopted, 2021 WL 1108594 (W.D. Okla. Mar. 23, 2021).3
III. Standard of Review
Summary judgment is appropriate if “the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). The “mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (citation modified, emphasis omitted). “A dispute is
genuine if there is sufficient evidence so that a rational trier of fact could resolve the issue
either way.” Sanderson v. Wyo. Highway Patrol, 976 F.3d 1164, 1173 (10th Cir. 2020)
(citation modified). “A fact is material if under the substantive law it is essential to the
proper disposition of the claim.” Crowe v. ADT Sec. Servs., Inc., 649 F.3d 1189, 1194
(10th Cir. 2011) (citation modified). When applying these standards, the Court “view[s]
the evidence and the reasonable inferences to be drawn from the evidence in the light most
favorable to the nonmoving party.” Wise v. Caffey, 72 F.4th 1199, 1205 (10th Cir. 2023)
(citation modified).
3 If the Court converts the motion as recommended, Defendant requests that the motion be
treated as a limited-issue motion for summary judgment. Doc. 20 at 3. If disposition of
this motion is not dispositive of Defendant’s case, Defendant may seek leave to file a
second motion for summary judgment. See LCvR56.1(a); Doc. 12 at 3.
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“A defendant may use a motion for summary judgment to test an affirmative defense
which entitles that party to a judgment as a matter of law.” Hutchinson v. Pfeil, 105 F.3d
562, 564 (10th Cir. 1997). “When a defendant moves for summary judgment based on an
affirmative defense, Rule 56 puts the burden on the defendant to demonstrate that no
disputed material fact exists regarding the affirmative defense asserted.” Estrada v. Smart,
107 F.4th 1254, 1261 (10th Cir. 2024) (citation modified); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (explaining that a party moving for summary judgment
bears “the initial responsibility” of showing “the absence of a genuine issue of material
fact”). “If the defendant meets this initial burden, the plaintiff must then demonstrate with
specificity the existence of a disputed material fact” by “offer[ing] evidence, not bare
allegations.” Estrada, 107 F.4th at 1261-62 (citation modified). Specifically, the plaintiff
must “set forth specific facts that would be admissible in evidence” and “identified by
reference to affidavits, deposition transcripts, or specific exhibits incorporated therein.”
Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 671 (10th Cir. 1998) (citation modified); see
also Fed. R. Civ. P. 56(c)(1)(A) (setting forth how a party introduces summary judgment
evidence). If a plaintiff does not “make such a showing, the affirmative defense bars his
claim, and the defendant is then entitled to summary judgment as a matter of law.” Estrada,
107 F.4th at 1261 (citation modified).
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IV. Analysis
A. Applicable law on exhaustion
Plaintiff brings only claims under state law against Defendant and its unknown
employees. The undersigned concludes Oklahoma exhaustion law applies to Plaintiff’s
suit brought in diversity jurisdiction.
An inmate in Oklahoma must exhaust certain administrative remedies before filing
his suit with state-law claims.
In any legal proceeding filed by an inmate, full and complete exhaustion of
all administrative and statutory remedies on all potential claims against the
state, the Department of Corrections, private entities contracting to provide
correctional services, or an employee of the state or the Department of
Corrections is a jurisdictional requirement and must be completed prior to
the filing of any pleadings.
Okla. Stat. tit. 57, § 566.5 (emphasis added). An “inmate” “includes, but is not limited to,
a person presently or formerly in the custody or under the supervision of . . . the Federal
Bureau of Prisons.” Id. § 566(B)(2). Further, under Oklahoma exhaustion law, “any action
by an inmate initiated against any person, party or entity” may be dismissed “if all
administrative and statutory remedies available to the inmate have not been exhausted in a
timely manner.” Id. § 566(A)(1) (citation modified).
This Court has previously applied § 566.5 in claims brought by inmates raising
Oklahoma state-law claims against their correctional facility. See, e.g., Johnson v.
Figueroa, No. CIV-12-1056-R, 2014 WL 2112662, at *3-6 (W.D. Okla. May 20, 2014)
(applying § 566.5 in prisoner suit, under diversity jurisdiction, brought by a California state
prisoner alleging torts under Oklahoma law against a private prison in Oklahoma); see also
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Meadows v. Whetsel, No. CIV-14-1030-HE, 2015 WL 7016496, at *3 (W.D. Okla.
Nov. 10, 2015) (applying § 566.5 when considering whether a plaintiff exhausted
administrative remedies in suit against jail officials involving state-law claims).
Both parties acknowledge Plaintiff was required to follow some state-mandated
exhaustion scheme before filing his suit, but they differ on what those prerequisites are.
Doc. 20 at 4-5; Doc. 22 at 15-18. Defendant argues both “federal and state exhaustion
requirements must be applied” to Plaintiff’s suit bringing state-law claims. Doc. 20 at 5.
On the other hand, Plaintiff contends that he must only comply—and did so—with the
Oklahoma Governmental Tort Claims Act (“OGTCA”) to notify Defendant timely before
suit. Doc. 22 at 15-17; see Okla. Stat. tit. 51, §§ 156-57. The undersigned is not persuaded
by either party’s position.
First, the parties spend considerable time discussing the federal Prison Litigation
Reform Act (“PLRA”) and its possible application. The PLRA requires an inmate filing
any action “with respect to prison conditions under [42 U.S.C. § 1983], or any other Federal
law” to exhaust “such administrative remedies as are available.” 42 U.S.C. § 1997e(a).
Plaintiff, though, brings only state-law claims against Defendant and its employees.
Defendant provides no persuasive authority to apply the PLRA to Plaintiff’s state-law
claims. “By its plain terms, the PLRA does not apply to state law-based claims.” Jennings
v. Dowling, No. CIV-14-335-C, 2015 WL 12915603, at *2 (W.D. Okla. Mar. 31, 2015).
The undersigned therefore analyzes Defendant’s motion under state exhaustion law.
Second, as to the OGTCA, while the statute does not create a private right of action
for claims against private prisons, the “[§] 566.5 requirement for complete exhaustion of
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‘statutory remedies’ includes the notice provisions of the [OGTCA].” Johnson v. Geo
Grp., Inc., 436 P.3d 759, 769-70 (Okla. Civ. App. 2018). As such, even assuming without
deciding that Plaintiff did comply with the notice provisions of the OGTCA, he would have
only complied with a notice requirement to exhaust “statutory remedies.” Okla. Stat.
tit. 57, § 566.5. And as Plaintiff must complete “full and complete exhaustion of all
administrative and statutory remedies on all potential claims” before filing suit against a
private entity like Defendant “contracting to provide correctional services,” he must still
exhaust administrative remedies. Id. Thus, the relevant inquiry here is whether Plaintiff
completed “full and complete exhaustion” of Defendant’s administrative remedies at CCF
“on all potential claims” before filing his Complaint.
B. Defendant’s grievance process
Defendant’s policy labeled “14-105 Detainee Grievance Procedures (USMS Only)”
provides an administrative remedies process to address “complaints regarding facility
conditions, treatment, and policies and procedures.” Doc. 20-2 at 2. Policy “14-105”
consists of informal resolutions and an appeal process. Id. The informal resolution process
commences when a detainee files Form 14-105A, Informal Resolution. Id. at 7. Except
for “unusual circumstances,” a response to an informal grievance is due back to the
detainee within three days of submission. Id. A detainee may bypass or abandon informal
resolutions at any time. Id.
A detainee submits a formal grievance using Form 14-105B. Id. at 9. No time
limitations govern when a grievance may be submitted. Id. The policy includes specific
steps for tracking and resolving grievances, including how grievances are assigned and
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when the detainees should receive a written response. Id. Remedies under informal
resolution or formal grievances are not limited to any form or function. Id. at 10. Also,
relevant for this analysis, the policy explicitly allows a detainee to seek assistance “to
communicate the problem on the grievance form.” Id. at 3.
Detainees are also provided with two levels of appeal: first to the Warden, and then
to the Division Managing Director. Id. at 10. An appeal to the Warden must be filed within
fifteen days of a response to a grievance. Id. An appeal to the Division Managing Director
must be filed within fifteen days of an appeal response from a Warden. Id. Appeal
responses should be received within twenty days (first level) or thirty days (second level).
Id. The process also includes procedures for continuing a grievance review in the event of
transfer. Id. at 11.
C. Plaintiff made no attempts to exhaust Defendant’s grievance process for
claims raised in Complaint.
Plaintiff was in Defendant’s custody from September 14, 2024, through
November 27, 2024. Doc. 26 at 2. After the transport accident, he was hospitalized from
September 25, 2024, through September 28, 2024. Id. Upon discharge from the hospital,
Plaintiff returned to CCF and was housed in the infirmary from September 28, 2024,
through October 1, 2024. Id. He was released from the infirmary on October 1, 2024, and
returned to regular housing, where he remained until his transfer to a Bureau of Prisons
(“BOP”) facility on November 27, 2024. Id.
To exhaust fully the administrative remedies under Defendant’s grievance process,
a detainee must properly proceed through all steps of the process. Doc. 20-1 at ¶ 17.
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Defendant presents evidence that Plaintiff did not participate in CCF’s grievance process
in any way after the accident, either during his recovery before he was transferred to a BOP
facility, or after his transfer. Defendant’s motion attaches an affidavit from CCF’s
Grievance Coordinator, Kayla Williams. Doc. 20-1. She attests Defendant received no
grievances from Plaintiff (1) from September 25, 2024, to November 27, 2024, while
Plaintiff was housed at Defendant’s facility or (2) from November 27, 2024, to July 9,
2025, after he transferred to a BOP facility and before he filed his suit. Id. ¶¶ 15-16.
Ms. Williams states Plaintiff did not complete any of the steps set out by the grievance
policy. Id. ¶ 17.
In response, Plaintiff provides no evidence that he filed a grievance or attempted to
exhaust his administrative remedies through Defendant’s grievance procedures. Plaintiff
argues (1) he did not have meaningful access to the administrative process, (2) such process
was futile given Defendant’s medical neglect with his care, and (3) he was transferred
before he could have completed the process. Doc. 22 at 9-15. The undersigned concludes
there are no material factual disputes about the availability of Defendant’s grievance
process and Plaintiff’s failure to exhaust administrative remedies before filing his
Complaint.
1. Plaintiff’s claimed medical incapacitation did not render
Defendant’s grievance process unavailable.
Plaintiff argues he was incapable of accessing Defendant’s grievance process
because he was incapacitated upon his return to the facility after a post-accident surgery.
Doc. 22 at 10-12. He attests that his “mobility was so severely restricted that he depended
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on others for basic tasks,” Doc. 22-1 at ¶ 9, and his medical incapacitation made the process
unavailable to him. Plaintiff states that upon his return from the hospital, he was not “re-
oriented” or provided a new handbook summarizing the grievance process. Doc. 22 at 11.
Plaintiff then contends (1) the grievance process was not available to him while in
Defendant’s infirmary between September 28 and October 1, (2) the deadlines were
“secret” and might have expired while he was housed in the infirmary, and (3) without
specific location information for the written description of the grievance process, the
written description of the process in the unit was possibly hidden. Id. Plaintiff, though,
provides no specific facts and offers only “bare allegations,” Estrada, 107 F.4th at 1262,
about the claimed unavailability.
Defendant responds that its administrative remedies process was accessible to
Plaintiff while he was in a housing unit at CCF starting on October 1, 2024. Doc. 26 at 1-
9. To show availability of the process, Defendant specifically notes two requests that
Plaintiff made at CCF after his accident: (1) an October 24, 2024, request for medical
records to be sent to a third party, and (2) a November 24, 2024, sick-call request. Doc. 26
at 6; Doc. 26-3 at 6-8. Defendant also provides a photograph purporting to show how the
relevant grievance forms and policies are displayed in the housing unit where Plaintiff
resided. Doc. 26 at 3-4; Doc. 26-2. Plaintiff contends this evidence fails to show the
process was available to him, specifically, given his injuries and placement in the infirmary
upon return to CCF. Plaintiff admits a medical request was completed on his behalf by
another inmate for his signature, Doc. 31 at 3, but he does not explain why receiving
assistance to complete that request is meaningfully different from a grievance.
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Even if Plaintiff did not have access to grievance forms while he was in the
infirmary from September 28, 2024, to October 1, 2024, he provides no evidence beyond
speculation that the grievance process was unavailable after he was moved out of the
infirmary to a housing unit on October 1, 2024. Defendant presents uncontroverted
evidence that grievance forms were available on the housing unit—where Plaintiff was
assigned—on and after October 1, 2024, until his transfer on November 27, 2024. Doc. 20-
1 at ¶¶ 11-12; Doc. 26-2. Further, Defendant’s grievance procedures do not include any
time limitations or restrictions that require the forms to be completed without assistance.
Finally, Plaintiff contends separately that factual disputes related to the
unavailability of grievance forms are “intertwined with the merits” of his underlying claims
and therefore preclude summary judgment. Doc. 22 at 18-20. In Perttu v. Richards, the
Supreme Court recently recognized that in “some cases” the question of a prisoner’s
exhaustion of administrative remedies under the PLRA “is intertwined with the merits of
the prisoner’s lawsuit.” 605 U.S. 460, 464 (2025). In Perttu, though, the inmate brought
a First Amendment claim that a prison official sexually abused him and later destroyed
prison grievances and threatened to kill the inmate if he filed any more grievances. Id. at
464-66. “The parties agree[d] that the exhaustion and First Amendment issues are
intertwined, because both depend on whether Perttu did in fact destroy Richards’s
grievances and retaliate against him.” Id. at 464. Perttu addressed PLRA exhaustion, but
Oklahoma exhaustion law governs Plaintiff’s claims. Moreover, Plaintiff alleges no claim
related to destruction of grievance forms or retaliation by Defendant or its employees with
CCF’s grievance process. As such, the principles of Perttu do not apply here.
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The undersigned finds no genuine issue of material fact related to Plaintiff’s access
to grievance forms at Defendant’s facility from October 1, 2024, through November 27,
2024. As such, Plaintiff’s claimed medical incapacitation did not render administrative
remedies unavailable while he was at Defendant’s facility. See, e.g., Gonyea v. Mink, 206
F. App’x 745, 747 (10th Cir. 2006) (rejecting a detainee’s claim of unavailability of
administrative remedies and noting though the detainee’s “physical ailments while
detained may have been serious, it was unlikely he was so physically or mentally
incapacitated during the entire filing window that he was unable to request a grievance
form within the appropriate time frame”).
2. Plaintiff’s claimed futility of Defendant’s administrative remedies
does not relieve him of exhausting the grievance procedure.
Plaintiff further argues the grievance process at CCF was a futile “dead-end” for
him because of Defendant’s “shocking medical neglect.” Doc. 22 at 12. He asserts that
because his surgical bandage was left unchanged for a month, he could not have expected
the administrative process to address meaningfully his complaints. Id. at 12-13. Plaintiff
claims his medical-records request and his tort notices were being ignored4 and
Defendant’s practice of “obstruction and concealment” indicate the administrative
remedies would have been futile. Id. at 13.
However, Plaintiff’s speculation that a process he did not pursue would have been
futile does not relieve him of responsibility to participate in the process. See Simmons v.
4 Defendant offers evidence that Plaintiff’s medical records were produced per request. See
Doc. 26 at 6; Doc. 26-3 at 7.
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Corr. Corp. of Am., 130 P.3d 305, 307 (Okla. Civ. App. 2009) (concluding under
Oklahoma law that an inmate’s own “precipitous actions” could not create futility and did
not relieve him of his obligation to exhaust his administrative remedies); see also Munoz
v. Duran, No. CV 23-638, 2025 WL 2254209, at *7 (D.N.M. Aug. 1, 2025) (“Plaintiff’s
non-specific and conclusory assertion that her complaints and grievances go ignored,
which the three answered grievances attached to the Martinez report categorically refute,
falls short of establishing that she had no potential of obtaining any relief under the
administrative grievance process.” (citation modified)); Schlenkert v. Davis, No. 08-cv-
02660, 2009 WL 793097, at *1 (D. Colo. Mar. 20, 2009) (“[Plaintiff’s] speculation that
exhaustion would be futile does not excuse the required exhaustion process.”). Further,
uncontroverted evidence establishes Plaintiff submitted to CCF two requests related to
medical records and a sick call, Doc. 26 at 6 and Doc. 26-3 at 6-8, but he did not engage
the administrative remedies procedure related to his claims before this Court. As such,
Plaintiff’s claimed futility of Defendant’s grievance process does not relieve him of
exhausting Defendant’s administrative remedies.
3. Plaintiff’s transfer does not render exhaustion impossible.
Finally, Plaintiff claims exhaustion of Defendant’s grievance process was not
possible because he was transferred on November 27, 2024, and only at Defendant’s
facility for nine weeks after his return from the hospital. Doc. 22 at 14. He argues the
timeline required to complete the grievance process rendered exhaustion impossible. Id.
Plaintiff acknowledges Defendant’s grievance procedures allow for detainee efforts to
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continue after a transfer, but he asserts that because he did not know his destination ahead
of time, he could not have followed the transfer continuation procedures. Id. at 15.
Plaintiff’s transfer did not render his exhaustion of Defendant’s grievance process
impossible. First, Defendant’s grievance procedures do not include any time limitations
for when a detainee may first submit a grievance. See Doc. 20-2 at 9 (“Time limits are not
imposed on when a prisoner may submit a formal grievance.”). The initial steps (informal
and formal) require a three-day response time from the facility. Doc. 26 at 5; Doc. 20-2 at
7, 9. Plaintiff did not begin the grievance process at any time before filing this suit, so
whether he could have completed the process through the two-tier appeal before his transfer
is conjecture. And Plaintiff presents nothing to contradict Defendant’s evidence that he
could have submitted a formal grievance or continued that process after a transfer.
Second, the allowance in Defendant’s grievance procedures for an inmate to
continue the grievance process after transfer is consistent with “the concept that inmates
are not necessarily excused from exhaustion requirements, though they change facilities.”
Lakhumna v. Messinger, No. 4:18-CV-81 DN, 2023 WL 2504583, at *6 (D. Utah Mar. 14,
2023) (collecting cases); see also Gonyea, 206 F. App’x at 747 (rejecting an inmate’s claim
that grievance process was unavailable when he could have filed grievance against county
detention facility after transferring to county jail). Generally, “the mere fact that [an
inmate] was transferred . . . does not direct the conclusion that he was thereby prevented
from filing a grievance.” Turrietta v. Barreras, 91 F. App’x 640, 642 (10th Cir. 2004)
(citation modified).
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In response, Plaintiff contends:
The Tenth Circuit has held that when a prisoner “is transferred before he can
complete the grievance process, the remedies are rendered unavailable.”
See: Muhammad v. Gentry, 371 F. App’x 906, 908 (10th Cir. 2010)
(unpublished).
Doc. 22 at 14. The undersigned, though, cannot locate Plaintiff’s named case with such
citation, or any case with such quoted language or proposition.5 Plaintiff has raised no
genuine issue of material fact to dispute Defendant’s evidence that (1) grievance forms
were available before Plaintiff’s transfer and (2) he could have completed the grievance
process even after his transfer.
4. Conclusion
Plaintiff failed to exhaust his administrative remedies with Defendant’s internal
grievance process, and “under Oklahoma law ‘full and complete’ exhaustion of
administrative remedies is a prerequisite to any legal action against a private entity
contracting to provide correctional services.” Johnson, 2014 WL 2112662, at *6 (citation
modified, citing Okla. Stat. tit. 57, § 566.5). Accordingly, Defendant’s affirmative defense
bars Plaintiff’s claims, and Defendant is entitled to summary judgment as a matter of law.
V. The Court should also grant summary judgment to Defendants Unknown
Driver and Unknown Medical Staff.
Plaintiff has sued additional parties in this suit—Unknown Driver and Unknown
Medical Staff—who have not been identified and served. See Doc. 2 at 4. Under
Oklahoma exhaustion law, “any action by an inmate initiated against any person, party or
5 The undersigned addresses additional mischaracterizations of case law by Plaintiff in
Section VI.
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entity” may be dismissed “if all administrative and statutory remedies available to the
inmate have not been exhausted in a timely manner.” Okla. Stat. tit. 57, § 566(A)(1)
(citation modified, emphasis added). The motion to dismiss was filed only on behalf of
Defendant, and not on behalf of these unknown individuals. See Doc. 20. However, as
Plaintiff failed to exhaust the administrative remedies for the claims he presents in this
matter against Defendant, the Court should similarly enter judgment as to those claims
against Unknown Driver and Unknown Medical Staff, even though they have not been
served. See Smith v. Jones, 606 F. App’x 899, 902 (10th Cir. 2015) (“Because Mr. Smith
equally failed to exhaust his remedies as to all Defendants, the district court properly
granted summary judgment based on non-exhaustion to even those Defendants who had
not formally moved for it.” (citation modified)); Castleman v. Stitt, No. CIV-23-919-PRW,
2024 WL 5161903, at *1 n.1, *7 (W.D. Okla. Aug. 27, 2024) (recommending the Court
grant defendants’ motion for summary judgment based on plaintiff’s failure to exhaust,
including against a defendant who had not been served) (R&R), adopted, 2024 WL
5161870 (W.D. Okla. Dec. 18, 2024).
VI. Plaintiff’s Mischaracterizations of Case Law
Finally, the undersigned notes additional examples of Plaintiff’s
mischaracterizations of case law in his Response, likely from the use of AI software
without independent verification of case citations. Examples include:
• Page 8 of the Response states: “Summary judgment is a ‘drastic
remedy’ that must be granted ‘with caution.’ See: Garrison v.
Gambro, Inc. 428 F.3d 933, 935 (10th Cir. 2005).” Garrison,
however, does not include such language or reflect such a proposition.
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• On page 10 of the Response, Plaintiff argues the principle of a
remedy’s unavailability “logically extends to circumstances where an
inmate is so physically or medically debilitated that he is unable to
navigate the process. See, e.g. Tuckel v. Glover, 660 F.3d 1249 (10th
Cir. 2011) (recognizing unavailability where an inmate is ‘so sick’ . .
. or otherwise incapacitated that he is unable to utilize the process.’).”
Tuckel, however, does not include such language or reflect such
proposition.
• Plaintiff similarly argues on page 10 of his Response that the “law
does not require an inmate to be a ‘superman.’ See: Braham v. Cty.
of Washington, No. 2:19-CV01128, 2020 WL 1166395, at 6 (W.D.
Pa. Mar. 11, 2020).” The undersigned has not located any such case
citation.6
Plaintiff filed his Response to the motion to dismiss on December 8, 2025.
In an Order on December 22, 2025, the Court “admonish[ed] Plaintiff that any
further mischaracterizations of facts and/or case law may result in the imposition of
sanctions. See Fed. R. Civ. P. 11(b), (c).” Doc. 29 at 4 n.2. Plaintiff “acknowledge[d] the
Court’s admonishment” in his Surreply filed on January 13, 2026. Doc. 31 at 1 n.3. In
the Surreply, he “apologize[d] to the Court for this error” and affirmed that he had reviewed
all authorities “to ensure their accuracy.” Id.
However, Plaintiff’s Surreply also contains errors:
• Though the proposition for which he cites it is correct, in footnote 4
on page 2 of the Surreply, his citation to Lemons v. Portfolio Recovery
Assocs., LLC is incorrect.
• On pages 3 and 5 of the Surreply, Plaintiff cites to Jones v. Bock, 549
U.S. 199, 216 (2007) for the proposition that Defendant bears the
6 The undersigned has further reason to believe Plaintiff used AI software based on the first
two sentences of his Introduction to his Response: “Here is a smoother, more cohesive
version in which the second paragraph naturally grows out of the first. The transition is
made explicit so the flow feels continuous and logical.” Doc. 22 at 1.
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burden of proving availability of administrative remedies. Jones does
not reflect such a proposition.
The undersigned draws Plaintiff’s attention to a recent admonition from the Tenth Circuit
about the types of errors found in Plaintiff’s briefs:
There is nothing inherently problematic with the use of artificial intelligence
to help prepare legal materials, but its careless use can waste both judicial
resources and the opposing party’s time and money, and it can damage the
credibility of the legal system. . . . We warn [the plaintiff]—and all pro se
litigants and counsel appearing before this court—of the responsibility to
ensure that citations to legal authority are not fabrications but instead point
to real cases that at least arguably stand for the propositions for which they
are cited.
Dodds v. Bridges, No. 25-7021, 2026 WL 380194, at *6 (10th Cir. Feb. 11, 2026) (citation
modified).
VII. Recommendation and Notice of Right to Object
For the foregoing reasons, the undersigned recommends that the Court convert
Defendant CoreCivic Inc.’s motion to dismiss to one for summary judgment, Doc. 20, and
GRANT summary judgment to Defendant. The undersigned further recommends the
Court GRANT summary judgment on the same grounds to the remaining, unserved
defendants—unknown CoreCivic employee (Driver) and unknown CoreCivic medical
staff (1-5). The parties are advised of their right to object to this Report and
Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of this
Court by March 27, 2026. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to
object timely waives the right to appellate review of the factual and legal issues addressed
in this Report and Recommendation. See Moore v. United States, 950 F.2d 656, 659 (10th
Cir. 1991).
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This Report and Recommendation disposes of all issues referred to the undersigned
Magistrate Judge in this matter.
ENTERED this 6th day of March, 2026.
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