Opinion
CIV-23-224-R
07-31-2023
JEROME DRAWHORN, Plaintiff, v. GEO GROUP INC. et al., Defendants.
REPORT AND RECOMMENDATION
SUZANNE MITCHELL UNITED STATES MAGISTRATE JUDGE
Jerome Drawhorn, an Oklahoma prisoner proceeding pro se, brings this action under 42 U.S.C. § 1983. Doc. 1, at 2. United States District Judge David L. Russell referred this matter to the undersigned Magistrate Judge for initial proceedings pursuant to 28 U.S.C. § 636(b)(1)(B), (C). Docs. 4, 7.Plaintiff asserts Defendants violated his First Amendment rights, denied him procedural due process, and retaliated against him for asserting his constitutional rights. Doc. 1, at 4-10. The undersigned recommends the Court dismiss Plaintiff's complaint for failure to state a claim upon which relief can be granted.
Citations to a court document are to its electronic case filing designation and pagination. Except for capitalization, quotations are verbatim unless otherwise indicated.
I. Screening.
Federal law requires the Court to dismiss a claim if the Court determines that the action “is frivolous or malicious,” “fails to state a claim on which relief may be granted,” or “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
“To state a claim under § 1983, a plaintiff must allege the violation of a right secured by the Constitution and laws of the United States, and must show that the allege deprivation was committed by a person acting under color of state law.” West v. Atkins, 487 U.S. 42, 48 (1988). The complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 622, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556).
This Court construes “pro se plaintiffs' pleadings liberally.” Johnson v. Reyna, 57 F.4th 769, 775 (10th Cir. 2023). If the Court “‘can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,' [it] should do so.” Id. (quoting Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991)). The Court “will often excuse pro se plaintiffs' failure to cite proper legal authority, confusion of various legal theories, poor syntax and sentence construction, and unfamiliarity with the pleading requirements.” Id. (internal quotation marks omitted). The Court, may not, however, serve as Plaintiff's advocate by creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
II. Plaintiff's claims.
Plaintiff is incarcerated at the Lawton Correctional Facility (LCF), a private prison in Lawton, Oklahoma owned by GEO Group, Inc. See Doc. 1, at 4; see also https://www.geogroup.com/FacilityDetail/FacilityID/61 (last visited July 18, 2023). Plaintiff sues “GEO Group Inc. DBA Geo Corrections” in its individual and official capacities, Correctional Officer Pantoja in her individual and official capacities, and Correctional Officer Brown in her individual capacity for violating his constitutional rights. Doc. 1, at 4-5.
In his first claim, Plaintiff alleges Defendants GEO Group and Pantoja violated his right to “religious expression” under the First Amendment. Id. at 7. Plaintiff asserts Defendants “used [a] misconduct to prevent religious expression of prayer with fiancee from 11/22 to 1/23.” Id. at 8. He explains that Defendants “deterr[ed] [his] efforts at marriage” when they disrupted his visitation with his fiancee “with constant accusations of illicit behavior with no evidence.” Doc. 1, Att. 1, at 2. Because of Defendants' alleged actions, Plaintiff states he could not “pray with his fiancee in person” “as required by the Holy Bible.” Id. Plaintiff asks this Court to issue a restraining order against Defendants, to expunge his misconduct from his record, to issue injunctive relief in the form of a “transfer to another facility,” “or in the alternative, [a] compensentory [sic] award of $60,000.00 for 60 days[] [and a] punitive award [of] $200,000.00 [or] $100,000.00” for each month the sanctions have been in effect.” Doc. 1, at 8 & Att. 1, at 8.
In his second claim, Plaintiff alleges Defendants GEO Group and Pantoja violated his right to due process by denying him his “liberty interest of intimate association, religious expression and marriage with fraudulent evidence for two months.” Doc. 1, at 8-9. He explains he was issued a baseless misconduct charge for inappropriate behavior with his fiancee during a visitation which has deprived him “of the right to intimate association by and through visitation sanctions.” Doc. 1, Att. 1, at 3-4. He asks the Court to issue an order expunging the misconduct from his record and transferring him to another facility so he can “continue exercising his right to intimate association and to become married.” Id. at 4-5. Alternatively, Plaintiff seeks an award of monetary damages. Doc. 1, at 9 & Att. 1, at 8.
In his third claim, Plaintiff alleges “[r]etaliation by misconduct resulting in irreparable harm of inability to exercise freedom of religious expression, marriage, and intimate association for two months - from 11/22 until 1/23.” Doc. 1, at 10. He asserts “[Defendant] Pantoja and other officials” harassed him “during several visitations” because of “the interracial nature of his relationship as well as the out loud prayer.” Id. When this harassment “did not deter [him] from exercising his freedom of religious expression, intimate association and marriage, [Defendant] Pantoja utilized the DOC Policy of 060125 to manufacture a false misconduct to punish [him] and terminate visits,” and Defendant Brown “has since continued to enforce [Defendant] Pantoja's orders of harassment.” Id. Because Defendants have deprived him of “the right to intimate association because of the interracial nature of his relationship in tandem with his religion requiring in-person prayer,” Plaintiff asks this Court to expunge the misconduct from his record, transfer him to another facility, issue a restraining order against Defendants, and award him court costs and monetary damages. Doc. 1, at 10 & Att. 1, at 7, 8.
Plaintiff states in his complaint that Defendants harassed him, in part, because he was in an “interracial relationship.” Doc. 1, at 10. But in his “Brief in Support of Complaint,” he complains he cannot “become married at [LCF] due to harassment as a black inmate and black visitor accused of sexual activity during visitation with no evidence other than the allegation of an officer.” Doc. 1, Att. 1, at 5. Despite this discrepancy, Plaintiff does make a separate racial discrimination claim.
III. Discussion.
A. Claim I-Plaintiff fails to state a valid constitutional claim.
“It is well-settled that ‘[i]nmates . . . retain protections afforded by the First Amendment, including its directive that no law shall prohibit the free exercise of religion.'” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir. 2007) (quoting O'Lone v. Est. of Shabazz, 482 U.S. 342, 348 (1987)). But such protections may be necessarily withdrawn or limited based on “the considerations underlying our penal system.” Id.; see also Overton v. Bazzetta, 539 U.S. 126, 131 (2003) (“Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner.”). So even if a prison regulation “burdens an inmate's constitutional rights,” the Court considers the regulation valid if it is “reasonably related to legitimate penological interests.” LaFevers v. Saffle, 936 F.2d 1117, 1119 (10th Cir. 1991) (citing Turner v. Safley, 482 U.S. 78, 89 (1987)). And the burden rests on the prisoner to disprove the validity of the regulation. Overton, 539 U.S. at 132.
1. Plaintiff fails to state a claim for violation of the First Amendment's free exercise clause.
“To state a valid constitutional claim, a prisoner must allege facts showing that officials substantially burdened a sincerely held religious belief.” Williams v. Hansen, 5 F.4th 1129, 1133 (10th Cir. 2021) (citing Kay, 500 F.3d at 1218). Plaintiff alleges Defendants GEO Group and Pantoja violated his First Amendment right to express his religion through in-person prayer and marriage when they used a prison rule to deny him visitation with his fiancee for two months. Doc. 1, at 7-8 & Att. 1, at 2-3. He asserts it is now “impossible [for him] to express [his] religion through marriage” at LCF because of harassment of his visitor and allegations of sexual behavior. Doc. 1, Att. 1, at 2-3. The Court should dismiss Plaintiff's religious expression claim for failure to state a claim.
Prison officials issued an “A-22” misconduct to Plaintiff for violating the visitation policy when he “put [his] hands inside [his] visitor's pants” on October 8, 2022. Doc. 1, Att. 3, at 1, 4.
While the First Amendment provides absolute protection to religious thoughts and beliefs, the free exercise clause does not prohibit . . . governments from validly regulating religious conduct. Neutral rules of general applicability normally do not raise free exercise concerns even if they incidentally burden a particular religious practice or belief.Muniz-Savage v. Addison, 647 Fed.Appx. 899, 906 (10th Cir. 2016) (quoting Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 649 (10th Cir. 2006)). “A law is neutral so long as its object is something other than the infringement or restriction of religious practices.” Id. (quoting Grace United Methodist Church, 451 F.3d at 649-50).
In Muniz-Savage, the daughter of an inmate alleged that the prison's ban on visitation with her father had deprived her of her First Amendment right to freely exercise her religion. Id. at 901-03. Prison officials had decided to ban visitation because the plaintiff-daughter was one of the inmate-father's sexual molestation victims. Id. at 902. She argued “that the no-visitation decision had deprived her of her right to receive her father's blessings by touching her head on days of particular significance.” Id. at 906. The court disagreed because “[t]he object of the no-visitation decision was not to infringe upon or restrict [plaintiff's] religious practices or beliefs,” but to restrict the inmate's contact with his victims. Id.
Plaintiff alleges that the misconduct resulting in a two-month visitation ban deprived him of his right to pray in-person with and ultimately marry his fiancee. Doc. 1, Att. 1, at 2-3. But the object of the general visitation rule was not to infringe on Plaintiff's religious practices, but to deter inmates from having sexual contact with their visitors. See Doc. 1, Att. 3, at 1, 4. So Plaintiff fails to state a valid claim that Defendants substantially burdened his freedom of religious expression by banning his visitation with his fiancee for two months. Muniz-Savage, 647 Fed.Appx. at 906.
2. Alternatively, Plaintiff's right-to-marry claim may be dismissed for failure to allege that he requested to marry.
The Supreme Court “has long held the right to marry is protected by the Constitution” under the Due Process Clause of the Fourteenth Amendment. Obergefell v. Hodges, 576 U.S. 644, 664 (2015). This “constitutionally protected marital relationship [extends to] the prison context.” Turner, 482 U.S. at 96. But a prisoner's right to marriage may be restricted where it is reasonably related to a legitimate penological interest. See id.
Plaintiff claims Defendants “deter[red his] efforts at marriage by disrupting visitation with constant accusations of illicit behavior with no evidence.” Doc. 1, Att. 1, at 2. He asserts his fiancee no longer personally visits him in prison. Id.; see also Doc. 1, Att. 2, at 1 (affidavit of Plaintiff's fiancee).
To determine whether Defendants violated Plaintiff's right to marry, “the focus of [the Court's] inquiry must be whether any of the named defendants denied [his] request to marry” his fiancee. Post v. Mohr, 2012 WL 76894, at *10 (N.D. Ohio Jan. 10, 2012); cf. Daniels v. Williams, 474 U.S. 327, 328, 331 (1986) (noting that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property” and due process guarantees historically only apply to the “deliberate decisions” of a government official). Although Plaintiff states he “would have wed this March 2023,” Doc. 1, Att. 1, at 7, he does not allege that he ever made a request to marry, let alone that such a request was denied. See Post, 2012 WL 76894, at *10 (dismissing claim where the complaint did “not suggest that any of the named defendants explicitly denied” a request to marry); Dixon v. Cain, 2015 WL 13309343, at *3 (M.D. La. Sept. 2, 2015) (dismissing a right-to-marry claim as premature where “there is no evidence in the record that the plaintiff and [his fiancee] have in fact formally requested authorization from prison officials to marry and that prison officials have refused that request”), adopted, 2015 WL 13439759 (M.D. La. Sept. 21, 2015). Therefore, the undersigned finds that Plaintiff has not stated a claim for the alleged denial of his right to marry.
B. Claim II-Plaintiff fails to state a due process claim.
The Fourteenth Amendment provides that no state shall “deprive any person of life, liberty, or property, without due process of law.” U.S. CONST. amend. XIV, § 1. The Due Process Clause extends two forms of protection: “procedural due process, which requires a state to employ fair procedures when depriving a person of a protected interest,” and “substantive due process, which guarantees that a state cannot deprive a person of a protected interest for certain reasons.” Benshoof v. Hall, No. CIV-22-527-R, 2022 WL 4287936, at *3 (W.D. Okla. July 29, 2022), adopted, 2022 WL 3586215 (W.D. Okla. Aug. 22, 2022); see also Lindsey v. Hyler, 918 F.3d 1109, 1115 (10th Cir. 2019) (“Claims for ‘substantive due process' find their basis in the Fourteenth Amendment's protections against arbitrary government power.”). Plaintiff alleges deprivation of both his procedural and substantive due process rights. Doc. 1, at 8-9 & Att. 1, at 3-4.
“The threshold inquiry in a due process analysis is to identify whether a protected liberty interest is at stake.” Marshall v. Ormand, 572 Fed.Appx. 659, 661 (10th Cir. 2014) (citing Wilkinson v. Austin, 545 U.S. 209, 221 (2005)). “A liberty interest may arise from the Constitution itself, by reason of guarantees implicit in the word ‘liberty[, ]' or it may arise from an expectation or interest created by state laws or policies.” Wilkinson, 545 U.S. at 221 (internal citations omitted).
“In determining whether an individual has been deprived of his [Fourteenth Amendment] right to procedural due process, courts must engage in a two-step inquiry: (1) did the individual possess a protected interest such that the due process protections were applicable; and if so, then (2) was the individual afforded an appropriate level of process.” Veile v. Martinson, 258 F.3d 1180, 1184-85 (10th Cir. 2001) (quoting Farthing v. City of Shawnee, 39 F.3d 1131, 1135 (10th Cir. 1994)).
1. Plaintiff does not state a violation of his substantive due process rights.
Plaintiff alleges a substantive due process violation because Defendants' actions violated his right to visit with and marry his fiancee. Doc. 1, at 9 & Att. 1, at 3-4. Plaintiff fails to state a substantive due process violation.
“A due process claim under the Fourteenth Amendment can only be maintained where there exists a constitutionally cognizable liberty or property interest with which the state has interfered.” Steffey v. Orman, 461 F.3d 1218, 1221 (10th Cir. 2006). Plaintiff complains Defendants interfered with his visitation rights with his fiancee for two months. But “[a prisoner] does not derive a liberty interest in visitation . . . from the Constitution.” Coleman v. Long, 772 Fed.Appx. 647, 649-50 (10th Cir. 2019); see Ky. Dep't of Corrs. v. Thompson, 490 U.S. 454, 460 (1989) (“[I]t [cannot] seriously be contended, in light of our prior cases-that an inmate's interest in unfettered visitation is guaranteed directly by the Due Process Clause.”). And “[t]he denial of prison access to a particular visitor ‘is well within the terms of confinement ordinarily contemplated by a prison sentence.'” Thompson, 490 U.S. at 461 (quoting Hewitt v. Helms, 459 U.S. 460, 468 (1983)). Plaintiff was therefore not denied a liberty interest when Defendants revoked his visitation with his fiancee for two months. See, e.g., Coleman, 772 Fed.Appx. at 650 (“Withdrawing visitation privileges is a proper and even necessary management technique to induce compliance with the rules of inmate behavior.” (quoting Overton, 539 U.S. at 134)); Wood v. Okla. Dep't of Corrs., No. CIV-16-986-R, 2017 WL 377946, at *2 (W.D. Okla. Jan. 26, 2017) (“There is no fundamental right to prison visitation for either the inmate or the visitor,” and “access to a particular visitor” is not “independently protected by the Due Process Clause.”). So Plaintiff does not state a due process claim related to this allegation.
Plaintiff states Defendants violated his due process right to “intimate association.” Doc. 1, Att. 1, at 4. This right protects the “choice[ ] to enter into and maintain certain intimate human relationships.” Roberts v. U.S. Jaycees, 468 U.S. 609, 617-18 (1984). But the Supreme Court has stopped short of holding that this right survives incarceration. See Overton, 539 U.S. at 131-32 (“We do not hold, and we do not imply, that any right to intimate association is altogether terminated by incarceration or is always irrelevant to claims made by prisoners.”). Instead, the “freedom of association is among the rights least compatible with incarceration” and “some curtailment of that freedom must be expected in the prison context.” Id. at 132. The Tenth Circuit assumes the right to “familial association” survives incarceration. See, e.g., Coleman, 772 Fed.Appx. at 650 n.1. But that court has also stopped short of holding that a non-family member “enjoys any rights to familial association” in a prisonsetting. Muniz-Savage, 647 Fed.Appx. at 905. Plaintiff makes no allegation that Defendants' conduct was “targeted [at] his familial relationships” when they revoked his visitation privilege with fiancee for two months. Coleman, 772 Fed.Appx. at 650 n.1; see also Cordova v. Albuquerque, 816 F.3d 645, 654 (10th Cir. 2016) (“The conduct or statement must be directed at the familial relationship with knowledge that the statements or conduct will adversely affect that relationship.”), abrogated on other grounds by Thompson v. Clark, 142 S.Ct. 1332 (2022).
Plaintiff also alleges as part of this claim that Defendants' actions deterred his efforts at marriage. But as the Court explained above, supra § III.A.2, Plaintiff has not stated a claim for the alleged denial of his right to marry.
2. Plaintiff does not state a violation of his procedural due process rights.
Because Defendants' actions did not deny him a liberty interest through the two-month visitation ban, he was not “entitled to the protections of the Due Process Clause.” Thompson, 490 U.S. at 465. But even assuming Plaintiff had stated a liberty interest that he was denied, he would then have to show he was not afforded “an appropriate level of process.” Veile, 258 F.3d at 1185 (quoting citation omitted). For a disciplinary hearing this entails “(1) advance written notice of the disciplinary charges; (2) an opportunity, when consistent with institutional safety and correctional goals, to call witnesses and present documentary evidence in his defense; and (3) a written statement by the factfinder of the evidence relied on and the reasons for the disciplinary action.” Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985). The findings from the disciplinary hearing only need to be based on “some evidence in the record.” Id. at 455-56.
Prison grievance procedures also do not create a protected liberty interest and thus do not implicate a prisoner's due process rights. See Boyd v. Werholtz, 443 Fed.Appx. 331, 332 (10th Cir. 2011) (“[T]here is no independent constitutional right to state administrative grievance procedures,” nor “does the state's voluntary provision of an administrative grievance process create a liberty interest in that process.”).
Plaintiff does not state any facts alleging he was denied the required level of process for his misconduct. Doc. 1, Att. 1, at 4. And Plaintiff's own attachments show prison officials provided him the opportunity to present his own witness statements to refute the misconduct report. Doc. 1, Att. 3, at 1. Prison officials also presented “some evidence” of his rule violation through Defendant Pantoja's misconduct report which stated that Plaintiff “put [his] hands inside [his] visitor's pants.” Id. While Plaintiff claims this evidence was “fraudulent,” Doc. 1, at 9, such an allegation does not show a deprivation of the procedural due process that Hill requires. See 472 U.S. at 456-57 (holding that a misconduct, even one based on “meager” evidence, is “some evidence” sufficient to satisfy due process).
3. Conclusion.
Plaintiff fails to state a due process claim. He has no liberty interest in visitation and has made no claim Defendants interfered with his right to marry. What's more, his misconduct was supported by some evidence. The undersigned therefore recommends the Court dismiss Claim II for failure to state a claim.
C. Claim III-Plaintiff fails to state a claim for retaliation.
Plaintiff alleges Defendants harassed his visitor and issued a retaliatory misconduct charge against him to prevent his right to “intimate association, due process, and religious freedoms.” Doc. 1, Att. 1, at 5. He argues Defendants' actions had a chilling effect on his ability to pray with and marry his fiancee. Id. at 6-7.
“‘[P]rison officials may not retaliate against or harass an inmate because of the inmate's exercise of his' constitutional rights.” Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (quoting Smith v. Maschner, 899 F.2d 940, 947 (10th Cir. 1990)). But “an inmate is not inoculated from the normal conditions of confinement experienced by convicted felons serving time in prison merely because he has engaged in protected activity.” Id.
To establish a retaliation claim, Plaintiff must prove he (1) “was engaged in constitutionally protected activity”; (2) “that the defendant's actions caused [him] to suffer an injury that would chill a person of ordinary firmness from continuing to engage in that activity”; and (3) “that the defendant's adverse action was substantially motivated as a response to [his] exercise of constitutionally protected conduct.” Shero v. City of Grove, 510 F.3d 1196, 1203 (10th Cir. 2007); see also Gee v. Pacheco, 627 F.3d 1178, 1189 (10th Cir. 2010) (applying same test to prisoner's claims under 42 U.S.C. § 1983). To satisfy the third prong of this analysis, Plaintiff “must prove that ‘but for' the retaliatory motive, the incidents to which he refers, including the disciplinary action, would not have taken place.” Peterson, 149 F.3d at 1144 (quoting Smith, 899 F.2d at 949-50).
Plaintiff has failed to adequately state a retaliation claim. As the Court has explained, Plaintiff's visitation with his fiancee was not constitutionally protected, Defendants did not interfere with his right to marry, and Defendants' application of the general visitation rule to Plaintiff was not to deter him from praying with his fiancee but to discourage him from having sexual contact with his visitor. The undersigned thus recommends Plaintiff's retaliation claim be dismissed.
Plaintiff asserts Defendants' conduct in harassing his fiancee chilled her desire to visit him in prison. Doc. 1, Att. 1, at 6. As she is not a party, the Court is not concerned with whether Defendants' conduct violated her rights.
Plaintiff's allegation that Defendant Pantoja fabricated the misconduct is insufficient to establish a retaliatory motive. See, e.g., Banks v. Katzenmeyer, 645 Fed.Appx. 770, 773 n.2 (10th Cir. 2016) (“To the extent the allegations that Ms. Englar's claim was ‘fabricated' or ‘bogus' reflects Mr. Banks's subjective conclusion concerning the claim, they are insufficient to allege a retaliatory motive.”).
D. Alternatively, the Court may dismiss all claims against Defendant GEO Group because Plaintiff did not sufficiently allege a policy or custom caused his injury.
Plaintiff sues Defendant GEO Group-LCF's corporate owner. Doc. 1, at 4. But a private actor like GEO Group cannot be held liable under § 1983 solely based on the actions of its employees. See Smedley v. Corrs. Corp. of Am., 175 Fed.Appx. 943, 946 (10th Cir. 2005) (“[A] private actor . . . ‘cannot be held liable solely because it employs a tortfeasor-or, in other words . . . cannot be held liable under § 1983 on a respondeat superior theory.'” (quoting Monell v. Dep't of Soc. Servs., 436 U.S. 658, 691 (1978))). To establish Defendant GEO Group's liability, Plaintiff must allege an official policy or custom that violated Plaintiff's federal rights and “was enacted or maintained with deliberate indifference to an almost inevitable” federal rights violation. Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 769 (10th Cir. 2013).
Plaintiff makes no such allegations in his complaint. He alleges correction officers harassed his visitor, but he does not claim those officers were carrying out an official policy or custom when they did so. He also alleges his misconduct was based on “DOC Policy 060125.” Doc. 1, at 10. But the crux of Plaintiff's allegations is that Defendant Pantoja “manufacture[d] a false misconduct to punish plaintiff.” Id. So they are insufficient to establish Defendant GEO Group's liability. See Simmons v. Uintah Health Care Special Dist., 506 F.3d 1281, 1284 (10th Cir. 2007) (when employees “act inconsistently with official policy or custom, though perhaps even still within the scope of employment, that will not suffice” to establish municipal liability). Plaintiff has thus failed to state a valid claim against Defendant GEO Group and the Court should dismiss it as a party.
E. Official-capacity claims against Defendant Pantoja.
Plaintiff sues Defendant Pantoja in her individual and official capacities. See Doc. 1, at 4-10. The Court should dismiss the official-capacity claims against Defendant Pantoja.
Employees of a private prison are not state actors, and official capacity claims cannot be asserted against them. See Jones v. Barry, 33 F. App'x. 967, 971 n.5 (10th Cir. 2002) (“[T]he [private prison] defendants are not state actors, and they do not have an ‘official capacity' as that term is used under the Eleventh Amendment.”). The Court should dismiss these official-capacity claims against Defendant Pantoja with prejudice. See Miskam v. Sherrod, No. CIV-14-646-HE, 2015 WL 4717105, at *3 (W.D. Okla. Aug. 7, 2015) (“Plaintiff's claims against the [private prison] defendants in their official capacities seeking monetary relief are dismissed with prejudice.”).
IV. Recommendation and notice of right to object.
For the reasons set forth above, the undersigned recommends the Court dismiss Plaintiff's complaint in its entirety for failure to state a claim, dismissing the claims against Defendant GEO Group without prejudice, and dismissing the official-capacity claims against Defendant Pantoja with prejudice.
The undersigned advises Plaintiff of his right to file an objection to this report and recommendation with the Clerk of this Court on or before August 21, 2023, in accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b)(2). The undersigned further advises Plaintiff that failure to make a timely objection to this report and recommendation waives the right to appellate review of both factual and legal questions contained herein. See Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
This report and recommendation disposes of all issues referred to the undersigned Magistrate Judge in this matter.
SO ORDERED .