Clark v. CoreCivic (2026)

Case details
Full caption
Dewayne Clark v. CoreCivic
Country
United States
Jurisdiction
Federal
Decided
2026
Disposition
Motion Granted
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; Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 1 of 21
2 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.”). Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 2 of 21
3 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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 3 of 21
4 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 4 of 21
5 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 5 of 21
6 “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). Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 6 of 21
7 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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 7 of 21
8 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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 8 of 21
9 ‘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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 9 of 21
10 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 10 of 21
11 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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 11 of 21
12 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 12 of 21
13 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 13 of 21
14 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 14 of 21
15 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 Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 15 of 21
16 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). Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 16 of 21
17 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 17 of 21
18 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 18 of 21
19 • 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. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 19 of 21
20 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). Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 20 of 21
21 This Report and Recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter. ENTERED this 6th day of March, 2026. Case 5:25-cv-00775-SLP Document 32 Filed 03/06/26 Page 21 of 21
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