5:23-cv-00976•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, filed this action pursuant to 42 U.S.C. § 1983. (Doc 1).1 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 Court is Plaintiff’s Motion for Summary Judgment, (Doc. 59), along with Defendant Timm’s Response, (Doc. 70), and Plaintiff’s Reply, (Doc. 78). As explained below, the undersigned recommends the Court DENY Plaintiff’s Motion. I. Procedural History Plaintiff is a state inmate currently incarcerated at the Northeast Oklahoma Community Corrections Center. (Doc. 79); see also OK DOC# 578716, Oklahoma Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (last visited Feb. 25, 2026). In the Complaint, Plaintiff alleges that on July 10, 2023, while he was housed 1 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF pagination. Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 1 of 13
2 at Lawton Correctional and Rehabilitation Facility (“LCRF”), he suffered an injury to his hand that resulted in a broken bone that was visibly pressing against his skin. (Doc. 1, at 6). Plaintiff claims that Defendant Timm, a Health Services Administrator at LCRF, violated his Eighth Amendment rights by failing to provide him with adequate medical care, causing him pain and suffering. (Id. at 7-8). Plaintiff alleges Defendant Timm “showed deliberate indifference to [his] serious medical needs by delaying treatment to save money.” (Id. at 8). He further alleges that Defendant Timm “has showed [d]eliberate indiffer[e]nce to [his] serious medical needs by delaying treatment in the hope that it would fix itself. I now have to go through having my hand rebroken, possibly causing lasting damage, more pain and suffering, and a lot of therapy to gain use of my hand again.” (Id. at 6). For relief, Plaintiff seeks $150,000 in compensatory damages for his pain and suffering. (Id. at 8). Plaintiff alleged an Eighth Amendment claim against GEO Group, Inc., but the court dismissed that claim, as well as Plaintiff’s claim against Defendant Timm in her official capacity. (Docs. 11, 15). The court retained Plaintiff’s Eighth Amendment claim against Defendant Timm insofar as it is alleged against her in her individual capacity. (Doc. 15, at 1). Defendant Timm filed a Special Report, (Doc. 22), and then moved the court to dismiss the Complaint for failure to state a claim, or in the alternative, for the court to grant summary judgment based on Plaintiff’s failure to exhaust administrative remedies as well as the merits of Plaintiff’s claim, (Doc. 26, at 1-2). After full briefing, the undersigned recommended the court deny Defendant’s Motion. (Doc. 41). On de novo review Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 2 of 13
3 following Defendant’s Objection, (Doc. 47), and Plaintiff’s Response, (Doc. 50), the court adopted the Report and Recommendation. (Doc. 68). Plaintiff filed the instant Motion for Summary Judgment. (Doc. 59). Defendant filed a Response. (Doc. 70). Plaintiff replied, (Doc. 78), and the Motion is now at issue. II. The Undisputed Facts Plaintiff restates verbatim the undisputed facts from the undersigned’s Report and Recommendation, (Doc. 41, at 3-5), and attaches supporting documents as exhibits, (Doc. 59, at 1-3; Exs. 1-17). Defendant admits each of Plaintiff’s proposed undisputed facts but argues that several are irrelevant to the sole remaining claim – that Defendant Timm was deliberately indifferent to Plaintiff’s serious medical needs through the treatment of his broken hand. (Doc. 70, at 2-5). These undisputed facts follow: 1. On July 11, 2023, Plaintiff submitted a Request for Health Services because he suspected he had broken a bone in his hand. (Doc. 59, at Ex. 1). 2. On July 13, 2023, a registered nurse evaluated Plaintiff, instructed him on “RICE (rest, ice, compression, bandage, elevate part),” and directed Plaintiff to take ibuprofen for thirty days. (Id. at Ex. 2). 3. On July 18, 2023, a third-party diagnostic testing provider, Express Mobile, took an x-ray of Plaintiff’s hand. (Id. at Ex. 3). The radiology interpretation stated that Plaintiff had an “[a]cute fracture of the second metacarpal.” (Id.) LCRF confirmed that it received the report on July 20, 2023. (Id.) 4. On August 7, 2023, Plaintiff submitted a Request to Staff to Defendant Timm, stating that he “snapped a bone in [his] left hand,” could not use his left hand, was in constant pain, and wanted his hand fixed before permanent damage was done. (Id. at Ex. 4). 5. On August 9, 2023, Defendant Timm responded to Plaintiff’s Request to Staff, stating that she ordered a repeat x-ray. (Id.) Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 3 of 13
4 6. On August 15, 2023, Express Mobile took another x-ray of Plaintiff’s hand, and the x-ray showed that the fracture had not changed. (Id. at Ex. 5). 7. On August 21, 2023, Plaintiff submitted a grievance in which he detailed, with dates included, that he broke his hand, that two x-rays had been taken, and that he had not seen a doctor despite submitting a Request to Staff to Defendant Timm. (Id. at Ex. 6). 8. On August 30, 2023, the LCRF Grievance Coordinator returned Plaintiff’s grievance unanswered, notifying Plaintiff that “there are no time frames specified for the alleged action(s) to have occurred” and that Plaintiff could cure his grievance within ten calendar days. (Id. at Ex. 7). 9. On August 31, 2023, Plaintiff was assessed by Michael Boger, D.O., and Dr. Boger referred Plaintiff to an orthopedic surgeon. (Id. at Ex. 8). 10. On September 5, 2023, Plaintiff resubmitted his grievance in which he again provided the dates on which he broke his hand, submitted a medical slip, had his first x-ray taken, submitted a Request to Staff to Defendant Timm, and had his second x-ray taken. (Id. at Ex. 9). 11. On September 13, 2023, Defendant Timm accepted Dr. Boger’s request for Plaintiff to consult with an orthopedic surgeon, and an appointment was scheduled for October 24, 2023. (Id. at Ex. 10). 12. On September 14, 2023, the Grievance Coordinator returned Plaintiff’s grievance unanswered, stating the grievance was “[n]ot specific to include dates, places, personnel involved and how affected” and that Plaintiff had “failed to follow previous instructions for filing this grievance” and thus had “waived/forfeited the opportunity to proceed in the grievance process.” (Id. at Ex. 11). 13. On September 19, 2023, Plaintiff submitted an appeal to the administrative review authority, explaining that his hand had still not been fixed despite his efforts to receive medical care. (Id. at Ex. 12). 14. On October 24, 2023, Plaintiff attended an appointment with Dr. Joel Davis, an orthopedic surgeon at Lindsay Municipal Hospital, in which Dr. Davis noted that Plaintiff would likely need surgery to correct malalignment and nonunion of the fracture, which showed minimal healing. (Id. at Ex. 13). Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 4 of 13
5 15. On October 26, 2023, the Medical Services Manager responded to Plaintiff’s appeal, notifying him that his appeal was being returned unanswered because his Request to Staff form had lacked specificity regarding “dates, places, staff, [and] how affected” and regarding the requested relief, and because a “Grievance Decision from Reviewing Authority” report was not completed on his grievance. (Id. at Ex. 14). The Medical Services Manager did not check the box next to the paragraph notifying a prisoner of his or her right to cure a defective appeal. (Id.) 16. On January 16, 2024, Plaintiff underwent surgery on his left hand for “[l]eft second metacarpal fracture malunion with shortening,” “[c]ontracture of left hand second MCP, PIP, DIP joints,” and “[d]islocation extensor tendon complex left index finger.” (Id. at Ex. 15). 17. On February 29, 2024, an x-ray showed that Plaintiff’s hand appeared normal. (Id. at 16). 18. On May 30, 2024, Plaintiff reported pain and lack of adequate grip in his left hand. (Id. at Ex. 17). An x-ray showed no changes from the prior x-ray. (Id.) III. Summary Judgment Standard of Review Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is proper “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); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Universal Underwriters Ins. Co. v. Winton, 818 F.3d 1103, 1105 (10th Cir. 2016). “A fact is ‘material’ if, under the governing law, it could influence the outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmovant on the evidence presented.” Rio Grande Found. v. Oliver, 154 F.4th 1213, 1220 (10th Cir. 2025) (citation modified). “The movant bears the initial burden to show the absence of a genuine issue of material fact, and, if successful, the burden then shifts to the nonmovant to set forth specific facts showing that there is a Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 5 of 13
6 genuine issue for trial.” Tufaro v. Oklahoma ex rel. Bd. of Regents of Univ. of Okla., 107 F.4th 1121, 1131 (10th Cir. 2024) (citation modified). The court’s inquiry must be whether the evidence, when viewed “through the prism of the substantive evidentiary burden,” Anderson, 477 U.S. at 254, “presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. Although the court views all facts in the light most favorable to the non-moving party at the summary judgment stage, “there is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party.” Id. at 249 (citations omitted). IV. The Test for Deliberate Indifference to a Serious Medical Need Plaintiff contends he is entitled to judgment as a matter of law on his claim that Defendant Timm violated his Eighth Amendment rights because “[t]he undisputed facts of this case clearly show that [Defendant Timm] was deliberately indifferent to the Plaintiff’s serious medical needs when she failed in her role as a gatekeeper when after being informed of the Plaintiff’s injury and the amount of pain he was in, she delayed the necessary treatment, treated the serious injury as a non-urgent one, caused considerable physical pain to Plaintiff, and caused permanent damage to the Plaintiff that will [a]ffect the rest of his life.” (Doc. 59, at 9-10). The Eighth Amendment, applied to the states by the Fourteenth Amendment, prohibits cruel and unusual punishment, including “deliberate indifference to serious medical needs of prisoners.” Estelle v. Gamble, 429 U.S. 97, 103 (1976). “This is true whether the indifference is manifested by prison doctors in their response to the prisoner’s Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 6 of 13
7 needs or by prison guards in intentionally denying or delaying access to medical care or intentionally interfering with the treatment once prescribed.” Id. at 104-05. The prisoner must satisfy both an objective and a subjective prong to succeed on a claim for inadequate medical attention under the Eighth Amendment. Helling v. McKinney, 509 U.S. 25, 35 (1993). The objective prong of the deliberate indifference standard looks to the nature and severity of the medical condition. See Strain v. Regalado, 977 F.3d 984. 989-90 (10th Cir. 2020). To satisfy the objective component, “the alleged deprivation must be ‘sufficiently serious’ to constitute a deprivation of constitutional dimension.” Self v Crum, 439 F.3d 1227, 1230 (10th Cir. 2006) (quoting Farmer v. Brennan, 511 U.S. 825, 834, (1970)). Generally, a medical need qualifies as “sufficiently serious” if it “has been diagnosed by a physician as mandating treatment” or if it is “so obvious that even a lay person would easily recognize the necessity for a doctor’s attention.” Sealock v. Colorado, 218 F.3d 1205, 1209 (10th Cir. 2000) (citation omitted). “[A] delay in medical care only constitutes an Eighth Amendment violation where the plaintiff can show the delay resulted in substantial harm. The substantial harm requirement may be satisfied by lifelong handicap, permanent loss, or considerable pain.” Mata v. Saiz, 427 F.3d 745, 751 (10th Cir. 2005) (internal citations and quotation marks omitted). The subjective prong of the deliberate indifference standard is satisfied if a plaintiff demonstrates that a prison official “knows of and disregards an excessive risk to inmate health or safety; the official must both be aware of facts from which the inference could be drawn that a substantial risk of serious harm exists, and [s]he must also draw the inference.” Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 7 of 13
8 Farmer, 511 U.S. at 837. A plaintiff must “present evidence of the prison official’s culpable state of mind.” Mata, 427 F.3d at 751. The state of mind required to establish culpability under the subjective prong is “akin to recklessness in the criminal law, where, to act recklessly, a person must consciously disregard a substantial risk of serious harm.” Self, 439 F.3d at 1231. Significantly, this level of intent can be demonstrated through circumstantial evidence: Whether a prison official had the requisite knowledge of a substantial risk is a question of fact subject to demonstration in the usual ways, including inference from circumstantial evidence, and a factfinder may conclude that a prison official knew of a substantial risk from the very fact that the risk was obvious. This is so because if a risk is obvious so that a reasonable man would realize it, we might well infer that [the defendant] did in fact realize it. Mata, 427 F.3d at 752 (citation modified) (quoting Farmer, 511 U.S. at 842). “A prison medical professional who serves solely as a gatekeeper for other medical personnel capable of treating the condition may be held liable under the deliberate indifference standard if she delays or refuses to fulfill that gatekeeper role.” Mata, 427 F.3d at 751 (citation modified); see also Lucas v. Turn Key Health Clinics, LLC, 58 F.4th 1127, 1137 (10th Cir. 2023) (holding that the subjective component of the deliberate indifference standard may be satisfied under a “gatekeeper theory” when a defendant “prevents an inmate from receiving treatment or denies access to someone capable of evaluating the inmate’s need for treatment”). While “doing nothing in the face of serious medical needs is obviously sufficient” to satisfy the subjective prong, “merely doing Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 8 of 13
9 something (with no reference to the underlying condition) does not necessarily insulate one from liability. Instead, a court may need to determine whether there was the functional equivalent of a complete denial of care in light of the specific circumstances.” Id. at 1139. The Lucas court used the facts of Mata to illustrate this distinction: The court in Mata distinguished several nurses under the gatekeeper theory and found that one nurse on duty “completely refused” to fulfill the gatekeeper role when she knew of a patient’s unexplained chest pain and told the patient that there was nothing she could do. However, two other nurses did fulfill their gatekeeper duties by performing an EKG and then reporting the results to a third party respectively, despite providing no other treatment. Id. at 1138 (citing Mata at 427 F.3d at 755–60). V. There is a Genuine Dispute of Material Fact Regarding the Subjective Prong of the Deliberate Indifference Standard; Thus, Plaintiff’s Motion for Summary Judgment Should Be Denied.2 The following undisputed facts, set forth fully above, are relevant to the subjective prong analysis for Defendant Timm’s actions: • Defendant Timm was aware perhaps as early as August 7, 2023, that Plaintiff’s hand was broken and that he was suffering considerable pain; • on August 9, 2023, Defendant Timm scheduled a second x-ray, which occurred on August 15, 2023; • on September 13, 2023, Defendant Timm approved the referral to the orthopedic surgeon, which was requested by Dr. Boger on August 31, 2023; • the visit with the orthopedic surgeon occurred on October 24, 2023. 2 The court “need not address the objective component of [Plaintiff’s] claim, because his claim clearly fails on the subjective component.” Loftis v. Faubion, 798 F. App’x 322, 325 (10th Cir. 2020) (addressing plaintiff’s claim that the defendants violated his constitutional rights by delaying his referral to an orthopedic specialist and the surgery he ultimately obtained). Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 9 of 13
10 In this case, the undisputed facts establish that Defendant Timm did not “completely refuse” to fulfill her role as gatekeeper; she took some actions with regard to Plaintiff’s condition. See Lucas, 58 F.4th at 1138. Defendant Timm learned of Plaintiff’s broken hand and scheduled him for an x-ray, and she learned of the referral to the orthopedic surgeon and approved it. The question is whether Defendant Timm should have – or could have –pursued more aggressive treatment for Plaintiff and/or acted more promptly. Plaintiff contends that “[a] reasonable jury could find that when Defendant Timm became aware that Plaintiff’s hand was broken and that he was in severe pain but had not been examined by a physician, her duty as gatekeeper was to timely refer Plaintiff to medical personnel capable of examining and treating the broken bone.” (Doc. 59, at 8). Plaintiff is correct – a reasonable jury could make this finding. But the undisputed facts are not “so one-sided” as to permit the court to make that determination as a matter of law. Anderson, 477 U.S. at 245. Rather, a reasonable jury could also find in favor of Defendant Timm by finding that she did not consciously disregard a substantial risk of serious harm to Plaintiff. Plaintiff has submitted no evidence to establish that Defendant Timm knew of his broken hand prior to August 7, 2023, the day he submitted his Request to Staff to her. There is no evidentiary support for Plaintiff’s statement that the x-ray taken on July 18, 2023, “would have had to been approved and reviewed by” Defendant Timm. (Doc. 59, at 5). Plaintiff has not pointed to any evidence to establish that Defendant Timm knew his injury was so serious as to require more urgent attention than a repeat x-ray. His Request to Staff stated that he had “a snapped bone in [his] left hand” and that he “can’t use [his] hand at all, and it’s in constant pain despite the [ibuprofen] [he] received.” (Id. at Ex. 4). Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 10 of 13
11 There is no evidence that Defendant Timm was aware that Plaintiff had “pieces of sharp bone pressing against and stretching the skin of [his] hand,” (Id. at 9), and indeed that allegation is not supported by the record. Plaintiff’s initial request for health services on July 11 stated, “I fell down the stairs and broke a bone in my hand.” (Id. at Ex. 1). At the initial exam by RN Holmberg on July 13, the “appearance of injury” was noted as “discoloration; edema,” and plaintiff’s “appearance” was “mild distress.” (Id. at Ex. 2, at 3). The exam did not prompt treatment beyond pain relievers, instruction on RICE (rest, ice, compression, bandage, elevate), and an order for an x-ray. (Id.) Moreover, while the exam by Dr. Boger showed “palpable malformation,” the doctor also noted that the fracture had only “mild displacement” and continued Plaintiff on ibuprofen. (Id. at Ex. 8). Plaintiff argues that his hand fracture constituted “visible significant trauma,” which should have been treated with emergency treatment at an emergency center pursuant to Oklahoma Department of Corrections (“ODOC”) policy. (Id. at 8-9; Exs. 18, 19). While violations of internal prison procedures “certainly provide circumstantial evidence that a prison health care gatekeeper knew of a substantial risk of serious harm,” see Mata, 427 F.3d at 757, the term “visible significant trauma” appears in ODOC policy only in reference to non-consensual sexual contact procedures, which is not relevant here. (See id. at Ex. 19, OP-140118 (I)(C)(5)(a)). In summary, the undersigned does not find that the risk of harm from a broken hand is so substantial or obvious that Defendant Timm’s decision to schedule a repeat x-ray instead of seeking emergency treatment or immediately scheduling a doctor’s appointment represents conscious disregard as a matter of law. Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 11 of 13
12 Plaintiff also alleges that Defendant Timm exhibited conscious disregard based on the timing of the care that he received. But the court must draw a distinction between the evidence of the timing of the care in general and the evidence of the timing that Defendant Timm could control. Defendant Timm scheduled Plaintiff’s second x-ray at most two days after she became undisputedly aware of his broken hand. That x-ray did not take place for six days, but there is no evidence that Defendant Timm – based on her job position or any jail policy – could have caused it to take place any sooner. There is likewise no evidence that Defendant Timm could have caused Plaintiff’s doctor’s visit on August 31, 2023, to take place any sooner than 16 days after the second x-ray. There is evidence that it took Defendant Timm 13 days to approve Dr. Boger’s referral to an orthopedic surgeon. Even so, there is no evidence that Defendant Timm could have caused the surgery consultation to take place any sooner than 41 days after she approved the referral. Indeed, there is no evidence to show what caused the delays or that Defendant Timm consciously delayed Plaintiff’s access to further care. At the summary judgment stage, the court must view all facts in the light most favorable to the non-moving party – Defendant Timm – and thus the court may infer that Defendant Timm’s delays were the result of negligence or matters outside of her control. Because there remains a genuine dispute regarding whether Defendant Timm “knew of and disregarded an excessive risk” to Plaintiff’s health or safety, the court cannot render judgment as a matter of law in Plaintiff’s favor. Plaintiff’s Motion should be denied. Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 12 of 13
13 VI. Recommendation and Notice of Right to Object In accordance with the foregoing analysis, the undersigned recommends that the Court DENY Plaintiff’s Motion for Summary Judgment (Doc. 59). The undersigned advises the parties of their right to file an objection to this Report and Recommendation with the Clerk of Court on or before March 19, 2026, under 28 U.S.C. § 636(b)(1) and Fed. R. Civ. P. 72(b)(2). The undersigned further advises the parties that failure to file a timely objection to this Report and Recommendation waives their right to appellate review of both factual and legal issues contained herein. Moore v. United States, 950 F.2d 656, 659 (10th Cir. 1991). This Report and Recommendation does not terminate the referral. ENTERED this 26th day of February, 2026. Case 5:23-cv-00976-PRW Document 81 Filed 02/26/26 Page 13 of 13
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