Johnson v. McCurdy et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
MARILYN MONAE PORTER, 	)
a/k/a LAMONE M. JOHNSON, 	)
)
Plaintiff, 	)
)
v. 	) 	CIV-22-23-R
)
JOEL MCCURDY, et. al., 	)
)
Defendants. 	)
SUPPLEMENTAL REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se and in forma pauperis, initiated
this action under 42 U.S.C. § 1983 alleging violations of her federal constitutional
rights. Doc. No. 1. 1 On September 19, 2022, Plaintiff filed an Amended
Complaint. Doc. No. 72. This matter has been referred to the undersigned
Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B),
(C). Following the requisite screening of Plaintiff’s Amended Complaint, the
undersigned recommends the transfer of this action to the United States District
Court for the Eastern District of Oklahoma.
1 Throughout the pleadings and briefs in this matter, Plaintiff and Defendants refer to
Plaintiff using she/her pronouns. Although the Court is not making a legal determination
as to Plaintiff’s gender, for the sake of clarity and consistency, as well as out of respect
for Plaintiff’s status as a transgender individual, the Court will also refer to Plaintiff
using she/her pronouns
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 1 of 7

2
I. Procedural History and Asserted Claims
Plaintiff is incarcerated at the Oklahoma State Penitentiary (“OSP”) located
in McAlester, Oklahoma. She initially filed this action in the Eastern District of
Oklahoma on October 18, 2021, which transferred the action to this Court. At that
time, the Eastern District court explained, “While Plaintiff is incarcerated in the
Eastern District of Oklahoma, the complaint asserts that all the defendants are
located in Oklahoma City, Oklahoma, which lies within the territorial jurisdiction
of the Western District of Oklahoma. Further, the decisions regarding Plaintiff’s
medical care [providing the basis for her claims] apparently were made in the
Western District.” Doc. No. 12 at 1 (citation omitted).
In her initial Complaint, Plaintiff raised claims under the Eighth and
Fourteenth 	Amendments, 	naming 	as 	Defendants 	Joel 	McCurdy, 	Oklahoma
Department of Corrections (“ODOC”) Chief Medical Officer, and the ODOC
Utilization Review Committee (“URC”). Doc. No. 1. In her Complaint, Plaintiff
explained that she suffers from gender dysphoria. 	Id. 	at 4-6. A Qualified
Healthcare Professional (“QHCP”), Dr. Payne Wren, appointed by Defendant
McCurdy, diagnosed Plaintiff with this condition. Id. at 5, 6. Pursuant to ODOC
policy, the QHCP submitted a request to Defendants for Plaintiff to receive certain
surgical treatments. Id. Defendants denied the request. Id.
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 2 of 7

3
In her Complaint, Plaintiff asserted an Eighth Amendment claim alleging
that in denying the surgical requests, Defendants were deliberately indifferent to
her serious medical needs. Id. at 4-6. Additionally, Plaintiff asserted a claim under
the Fourteenth Amendment’s equal protection clause based on allegations that
Defendants approved similar surgeries for a fellow inmate. Id. at 4, 6.
On April 29, 2022, Defendant URC filed a Motion to Dismiss pursuant to
Federal Rule of Civil Procedure 12(b)(6) arguing it was not a proper party to this
action under 42 U.S.C. § 1983. Doc. No. 29. The Court agreed and on June 13,
2022, the undersigned recommended granting Defendant URC’s Motion and
allowing Plaintiff to amend her Complaint in order to name individual members
of the URC as Defendants. Doc. No. 44. United States District Judge David L.
Russell adopted this recommendation on August 31, 2022. Doc. No. 63.
On May 27, 2022, Defendant McCurdy filed a Motion to Dismiss in which
he requested dismissal, alleging, inter alia, that Plaintiff failed to demonstrate he
personally participated in the decision to deny her requests for sex reassignment
and related surgeries. Doc. No. 38. The undersigned agreed and recommended the
Court dismiss Plaintiff’s claims against Defendant McCurdy. Doc. No. 70.
On September 19, 2022, Plaintiff filed an Amended Complaint in which
she asserted her initial claims but also added numerous additional claims and
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 3 of 7

4
Defendants. Doc. No. 72. Specifically, Plaintiff now names the following as
Defendants: Joel McCurdy, John Doe members of the URC, OSP Correctional
Health Services Administrator Kim Hall, OSP Deputy Warden Christie Quick,
OSP Canteen Supervisor Earlene Sylvester, OSP Unit Manager Terri Apala, OSP
Warden Jim Farris, OSP Disciplinary Hearing Officer Lt. Dixon, OSP Chief of
Security Tinsley, and ODOC Chief Medical Officer Ross Fisher. Id. at 6-10.
In her Amended Complaint, Plaintiff asserts claims under the Eighth and
Fourteenth 	Amendments 	alleging 	Defendants 	violated 	her 	rights 	to 	equal
protection, adequate medical care, and due process. Id. at 12-35. Her claims arise
from numerous incidents that have occurred primarily at OSP, including but not
limited to denial of requests for varying types of medical care, denial of female
related clothing and accessories, an alleged failure to provide due process during
disciplinary proceedings, and denial of certain types of telephone calls. Id.
On January 11, 2023, Judge Russell declined to adopt the undersigned’s
previous 	recommendation 	to 	dismiss 	Plaintiff’s 	claims 	against 	Defendant
McCurdy because the Amended Complaint, which was filed with leave of Court,
became the operable pleading and, therefore, superseded the original Complaint.
Doc. No. 83. Accordingly, the undersigned must screen the Amended Complaint
pursuant to 28 U.S.C. § 1915A(a).
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 4 of 7

5
II. Screening of Prisoner Complaints
A federal district court must review complaints filed by prisoners seeking
relief against a governmental entity or an officer or employee of a governmental
entity. 28 U.S.C. § 1915A(a). After conducting an initial review, a court must
dismiss a complaint or any portion of it presenting claims that are frivolous,
malicious, fail to state a claim upon which relief may be granted, or seek monetary
relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
Additionally, one aspect of screening is reviewing whether venue is proper
“when the defense is obvious from the face of the complaint and no further factual
record is required to be developed.” Trujillo v. Williams, 465 F.3d 1210, 1217
(10th Cir. 2006) (citation omitted). “[T]he court acting on its own motion, may
raise the issue of whether a change of venue would be in the interest of justice.”
Love's Travel Stops & Country Stores, Inc. v. Oakview Constr., Inc., No. CIV-10-
235-D, 2010 WL 4811450, at *6 (W.D. Okla. Nov. 19, 2010).
III. Analysis
“[T]he term ‘venue’ refers to the geographic specification of the proper
court or courts for the litigation of a civil action . . . .” 28 U.S.C. § 1390(a). The
proper venue for Plaintiff’s action is in the “judicial district in which any
defendant resides” or the “judicial district in which a substantial part of the events
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 5 of 7

6
or omissions giving rise to the claim occurred . . . .” 28 U.S.C. § 1391(b)(1), (2).
Venue for this matter lies in the Eastern District of Oklahoma. Based on the
Amended Complaint, it appears the vast majority of “the events or omissions
giving rise to [Plaintiff’s] claim[s] occurred” in McAlester, Oklahoma located in
Pittsburg County. Id. Moreover, it is likely the vast majority of Defendants,
primarily OSP officials, reside in Pittsburg County as well. Additionally, most
Defendants have yet to be served with process in this matter. The County of
Pittsburg, State of Oklahoma is located within the Eastern District of Oklahoma.
28 U.S.C. § 116(b).2 Thus, venue is proper in that court. 28 U.S.C. § 1391(b)(2).
RECOMMENDATION
The undersigned recommends the transfer of this action to the United States
District Court for the Eastern District of Oklahoma. Plaintiff is advised of her
right to file an objection to this Supplemental Report and Recommendation with
the Clerk of this Court by February 1 st , 2023, in accordance with 28 U.S.C.
§ 636 and Fed. R. Civ. P. 72. The failure to timely object to this Supplemental
Report and Recommendation would waive appellate review of the recommended
2 The undersigned judicially notices the location of Pittsburg County, Oklahoma. Fed.
R. Evid. 201(b); see also United States v. Piggie, 622 F.2d 486, 488 (10th Cir. 1980)
(“Geography has long been peculiarly susceptible to judicial notice for the obvious
reason that geographic locations are facts which are not generally controversial . . . .”).
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 6 of 7

7
ruling. Moore v. United States of America, 950 F.2d 656 (10th Cir. 1991); see,
c.f., Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (“Issues raised for
the first time in objections to the magistrate judge’s recommendation are deemed
waived.”).
This Supplemental Report and Recommendation disposes of all issues
referred to the undersigned Magistrate Judge in the captioned matter, and any
pending motion not specifically addressed herein is denied.
Dated this 	12 th day of January, 2023.
6:23-cv-00058-RAW-GLJ Document 85 Filed in ED/OK on 01/12/23 Page 7 of 7