Albright v. GEO Group Inc et al

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IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
JOSHUA ROY ALBRIGHT, 	)
)
Plaintiff, 	)
)
v. 	) 	Case No. CIV-23-976-PRW
)
GEO GROUP, INC., et al., 	)
)
Defendants. 	)
REPORT AND RECOMMENDATION
Plaintiff, a state prisoner appearing pro se,1 filed this action pursuant to 42 U.S.C.
§ 1983. 	(Doc 1).2 	United States District Judge Patrick R. Wyrick referred the matter to
the undersigned Magistrate Judge for initial proceedings under 28 U.S.C. § 636(b)(1)(B).
(Doc. 4). 	Before the undersigned is a Declaration for Entry of Default filed August 26,
2024. (Doc. 21). For the reasons below, the undersigned recommends denying Plaintiff’s
Declaration.
I. 	Discussion
On February 15, 2024, through a Report and Recommendation, the undersigned
recommended the Court dismiss Plaintiff’s claims against Defendant GEO Group and
1 A pro se litigant’s pleadings are liberally construed “and held to a less stringent standard
than formal pleadings drafted by lawyers.” 	Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). 	But the court
cannot serve as Plaintiff’s advocate, creating arguments on his behalf. 	See Yang v.
Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).
2 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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Defendant Timms in her official capacity but retain Plaintiff’s Eighth Amendment
deliberate indifference claim against Defendant Timms in her individual capacity. 	(Doc.
11, at 7). 	On May 24, 2024, the Court adopted the Report and Recommendation in its
entirety. (Doc. 15, at 1). Accordingly, the undersigned ordered Plaintiff to serve Defendant
Timms and ordered the Lawton Correction Facility to submit to the Court a Special Report
no later than 60 days after the service of Defendant Timms. (Doc. 16, at 1-2). Defendant
Timms was served on June 14, 2024. (Doc. 19). Thus, the Lawton Correctional Facility
had until August 13, 2024, to submit a Special Report to the Court. 	The Lawton
Correctional Facility did not file a Special Report by this deadline.
In response to Lawton Correctional Facility’s failure to timely file a Special Report,
Plaintiff filed a Declaration for Entry of Default on August 26, 2024. (Doc. 21). 	Plaintiff’s
Declaration for Entry of Default was received via mail by the Clerk of this Court on August
28, 2024. 	(See Doc. 21, at Ex. 1). 	The same day, the Court ordered that Lawton
Correctional Facility’s deadline to submit a Special Report be extended to September 11,
2024. (Doc. 20, at 2). Lawton Correctional Facility complied, filing a Special Report on
September 11, 2024. (Doc. 22).
A party who fails to appear or to otherwise defend is in default. See Fed. R. Civ. P.
55(a). 	“However, a party’s default is not necessarily sufficient to entitle a plaintiff to an
entry of default judgment.” Gen. Steel Domestic Sales, LLC v. Chumley, 306 F.R.D. 666,
668 (D. Colo. 2014) (citing Bixler v. Foster, 596 F.3d 751, 762 (10th Cir. 2010)); see
also Fed. R. Civ. P. 55(b). Even if a default has been entered, it may be set aside for good
cause. Fed. R. Civ. P. 55(c). Further, in exercising its discretion regarding whether to enter
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a default judgment, the court may consider social goals, justice, and expediency, while
adhering to the maxim that “[t]he preferred disposition of any case is upon its merits and
not by default judgment.” Gomes v. Williams, 420 F.2d 1364, 1366 (10th Cir. 1970).
Though Lawton Correctional Facility did not submit a Special Report within 60
days after the service of Defendant Timms, Lawton Correctional Facility complied with
the Court’s order extending the deadline for filing a Special Report, (Doc. 22), and
Defendant Timms has timely filed a dispositive motion, (Doc. 26). 	Since Defendant
Timms has put forth a defense, this case may proceed in the manner preferred by the Tenth
Circuit — toward a disposition on the merits. Plaintiff’s Declaration for Entry of Default
(Doc. 21) should therefore be denied.
II. 	Recommendation and Notice of Right to Object
Based 	on 	the 	foregoing, 	it 	is 	recommended 	that 	the 	court 	deny 	Plaintiff’s
Declaration for Entry of Default (Doc. 21). 	The undersigned advises Plaintiff of his
right to file an objection to this Report and Recommendation with the Clerk of Court
on or before October 30, 2024, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2).
The undersigned further advises Plaintiff that failure to file a timely objection to this Report
and Recommendation waives his right to appellate review of both factual and legal issues
contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991).
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This Report and Recommendation does not terminate the referral in the present case.
ENTERED this 9th day of October, 2024.
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