Albright v. GEO Group Inc et al

1
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 the Motion to Dismiss or in the Alternative, Motion for
Summary Judgment and Brief of Emily Timm (Doc. 26), along with Plaintiff’s Response
(Doc. 29) and Defendant Timm’s Reply (Doc. 30). As explained below, the undersigned
recommends the Court DENY Defendant Timm’s Motions.
I. 	Procedural History
Plaintiff is a state inmate currently incarcerated at the Lawton Correctional and
Rehabilitation Facility (“LCRF”). (Doc. 1, at 4); see also OK DOC# 578716, Oklahoma
Department of Corrections OK Offender, https://okoffender.doc.ok.gov/ (last visited April
1 Citations to the parties’ filings and attached exhibits will refer to this Court’s CM/ECF
pagination.
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11, 2025). In the Complaint, Plaintiff alleges that on July 10, 2023, he suffered an injury
to his hand that resulted in a broken bone that was visibly pressing against his skin. (Doc.
1, at 6). He alleges that he put in a sick call on July 11, 2023, but he had to wait until July
18, 2023, to get an x-ray, which showed that Plaintiff had an “[a]cute fracture of the second
metacarpal.” (Id.) Plaintiff alleges that after the x-ray he was not allowed to see a doctor.
(Id.) He alleges that “after being patient for several weeks [he] put a request to staff into
[Defendant Timm],” who “responded by ordering another x-ray,” which was done on
August 15, 2023, and “showed [his] bone healing all wrong.” (Id.) Plaintiff alleges he did
not see a doctor until August 31, 2023. (Id.)
Plaintiff claims that Defendant Timm, a Health Services Administrator at LCRF,
has 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] 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 above claim as alleged against Defendant
Timm in her official capacity, after the undersigned reviewed the Complaint on screening
and recommended such dismissals. 	(Docs. 11, 15). 	On screening, the Court retained
Plaintiff’s Eighth Amendment claim against Defendant Timm insofar as it is alleged
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against her in her individual capacity. 	(Doc. 15, at 1). 	Defendant Timm filed a Special
Report (Doc. 22) and now moves 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 and based on the merits of Plaintiff’s claim,
(Doc. 26, at 1-2). Plaintiff filed an Objection to Defendant’s Special Report (Doc. 27), a
Brief in Opposition to Defendant’s Motion to Dismiss or in the Alternative, Motion for
Summary Judgment (Doc. 29), and a Declaration in support of his responsive brief (Doc.
28). Defendant Timm filed a Reply (Doc. 30).
II. 	The Undisputed Facts
Defendant Timm and Plaintiff rely on the same exhibits to support their arguments.
(See Docs. 22, 26, and 29). The evidence shows the following:
• 	On July 11, 2023, Plaintiff submitted a Request for Health Services because
he suspected he had broken a bone in his hand. (Doc. 22, at Ex. 10).
• 	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. 11).
• 	On July 18, 2023, a third-party diagnostic testing provider, Express Mobile,
took an x-ray of Plaintiff’s hand. (Id. at Ex. 12). 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.)
• 	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. 3).
• 	On August 9, 2023, Defendant Timm responded to Plaintiff’s Request to
Staff, stating that she ordered a repeat x-ray. (Id.)
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• 	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. 13).
• 	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. 4).
• 	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. 5).
• 	On August 31, 2023, Plaintiff was assessed by Michael Boger, D.O., and Dr.
Boger referred Plaintiff to an orthopedic surgeon. (Id. at Exs. 14-15).
• 	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. 6).
• 	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. 15).
• 	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. 7).
• 	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. 8).
• 	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. 19).
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• 	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. 8). 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.)
• 	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. 24).
• 	On February 29, 2024, an x-ray showed that Plaintiff’s hand appeared
normal. (Id. at 27).
• 	On May 30, 2024, Plaintiff reported pain and lack of adequate grip in his left
hand. 	(Id. at Ex. 28). 	An x-ray showed no changes from the prior x-ray.
(Id.)
III. 	Standards of Review
A. 	Motion for Summary Judgment
Because Defendant Timm relies on materials not attached to or incorporated into
Plaintiff’s Complaint in Propositions I and III, (see Doc. 26, at 2-3, 5), these Propositions
are automatically converted to motions for summary judgment. Fed. R. Civ. P. 12(d); (see
Doc. 16, at 3). “The court shall grant summary judgment 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). “A fact is material if, under the governing law, it could have
an effect on the outcome of the lawsuit. 	A dispute over a material fact is genuine if a
rational jury could find in favor of the nonmoving party on the evidence presented.”
Schneider v. City of Grand Junction Police Dep't, 717 F.3d 760, 767 (10th Cir. 2013)
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(quoting Tabor v. Hilti, Inc., 703 F.3d 1206, 1215 (10th Cir. 2013)). To oppose a properly
supported motion for summary judgment, the nonmovant must “set forth specific facts
showing that there is a genuine issue for trial.” 	Id. 	(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)). 	In deciding a motion for summary judgment, the court
must “examine the factual record, including any reasonable inferences arising from it, in
the light most favorable to the party opposing summary judgment.” 	Calhoun v. Gaines,
982 F.2d 1470, 1472 (10th Cir. 1992).
When a defendant asserts an affirmative defense — such as a failure to exhaust
administrative remedies — as a basis for summary judgment, the defendant “must
demonstrate that no disputed material fact exists regarding the affirmative defense asserted
when the evidence is viewed in the light most favorable to the plaintiff.” 	Kramer v.
Wasatch Cnty. Sheriff’s Off., 743 F.3d 726, 746 (10th Cir. 2014) (internal quotation marks
omitted). 	“[A] defendant bears the burden of ‘proving that the plaintiff did not [exhaust
his] administrative remedies.’” 	May v. Segovia, 929 F.3d 1223, 1234 (10th Cir. 2019)
(quoting Tuckel v. Grover, 660 F.3d 1249, 1254 (10th Cir. 2011)). If the defendant satisfies
this burden, the plaintiff incurs a duty to “demonstrate with specificity the existence of a
disputed material fact,” Hutchinson v. Pfeil, 105 F.3d 562, 564 (10th Cir. 1997), or to show
that remedies were unavailable to the plaintiff, May, 929 F.3d at 1234. In the absence of
either showing, the defendant is entitled to summary judgment on the affirmative defense.
See id.
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B. 	Motion to Dismiss
The undersigned construes Proposition II as a motion to dismiss because it
challenges the sufficiency of the allegations in the Complaint, (see Doc. 26, at 3-5). Fed.
R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a 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. 662, 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); see also Gee v. Pacheco, 627
F.3d 1178, 1184 (10th Cir. 2010).
In reviewing the complaint, the court must accept Plaintiff’s allegations as true and
construe them, and any reasonable inferences to be drawn from them, in the light most
favorable to Plaintiff. See Kay v. Bemis, 500 F.3d 1214, 1217 (10 th Cir. 2007). Bare legal
conclusions in a complaint are not assumed to be true; legal conclusions “must be
supported by factual allegations” to state a claim upon which relief may be granted.
Ashcroft, 556 U.S. at 679. “A pro se litigant’s pleadings are to be construed liberally and
held to a less stringent standard than formal pleadings drafted by lawyers.” Hall v. Bellmon,
935 F.2d 1106, 1110 (10th Cir. 1991). 	The court, however, may not serve as Plaintiff’s
advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1
(10th Cir. 2008).
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IV. 	Defendant Timm’s Motion for Summary Judgment Based on Failure to
Exhaust Administrative Remedies (Proposition I) Should Be Denied.
In Proposition I, Defendant Timm argues that the Court should grant summary
judgment because Plaintiff did not exhaust his administrative remedies prior to filing the
Complaint in violation of the Prison Litigation Reform Act (“PLRA”). 	(Doc. 26, at 2).
Defendant Timm contends that Plaintiff failed to properly follow LCRF’s four-step
grievance procedure because he did not perfect a final appeal to the administrative review
authority, leaving his claim administratively unexhausted. 	(Id. at 2-3). 	In Plaintiff’s
Response, he argues that LCRF has a three-step grievance procedure which he attempted
to complete, but that LCRF hindered him from fully exhausting his claim through the
grievance procedure. (Doc. 29, at 9-10). The undersigned agrees with Plaintiff that LCRF
officials made the grievance procedure unavailable to him.
A. 	The PLRA’s Exhaustion Requirement
The Prison Litigation Reform Act provides that “[n]o action shall be brought with
respect to prison conditions under [42 U.S.C. § 1983] . . . by a prisoner . . . until such
administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a). Because
exhaustion of available remedies “is mandatory under the PLRA[,] . . . unexhausted claims
cannot be brought in court.” Jones v. Bock, 549 U.S. 199, 211 (2007). “Proper exhaustion
demands compliance with an agency’s deadlines and other critical procedural rules because
no adjudicative system can function effectively without imposing some orderly structure
on the course of its proceedings.” Woodford v. Ngo, 548 U.S. 81, 90-91 (2006). This means
a prisoner must use “all steps that the agency holds out, and do[] so properly (so that the
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agency addresses the issues on the merits).” Id. at 90 (internal quotation marks omitted).
“An inmate who begins the grievance process but does not complete it is barred from
pursuing a § 1983 claim under PLRA for failure to exhaust his administrative remedies.”
Thomas v. Parker, 609 F.3d 1114, 1118 (10th Cir. 2010) (quoting Jernigan v. Stuchell, 304
F.3d 1030, 1032 (10th Cir. 2002)).
But, as noted above, the PLRA’s exhaustion requirement is limited to such
administrative remedies as are available to be exhausted. 	“Administrative remedies are
deemed unavailable if, among other things, ‘prison administrators thwart inmates from
taking advantage of a grievance process through machination, misrepresentation, or
intimidation.’” May, 929 F.3d at 1234 (quoting Ross v. Blake, 578 U.S. 632, 644 (2016)).
One way a prison administrator might thwart an inmate’s utilization of the grievance
procedure is by rejecting his or her submission on a basis not authorized by the prison’s
grievance policy. 	See Little v. Jones, 607 F.3d 1245, 1250 (10th Cir. 2010) (holding that
the administrative review authority made exhaustion unavailable when it rejected the
plaintiff’s grievance appeal on grounds not authorized by ODOC procedure). 	The court
liberally construes grievances filed by unrepresented inmates. Greer v. Dowling, 947 F.3d
1297, 1302 (10th Cir. 2020).
B. 	LCRF’s Grievance Procedure
LCRF has adopted the grievance procedure of the Oklahoma Department of
Corrections (“ODOC”), OP-090124. (Doc. 22, at 2; see also id. at Exs. 3-9). According
to the “Inmate/Offender Grievance Process,” the first step in the grievance process is
“informal resolution,” including submitting a “Request to Staff” if the complaint is not
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resolved through speaking with the appropriate prison official. (Id. at Ex. 9, at 6-8). If an
issue is not resolved at the informal resolution stage, the inmate may submit a grievance
form to the appropriate grievance reviewing authority, with medical grievances to be
submitted to the facility correctional health services administrator. 	(Id. at Ex. 9, at 8-9).
After receiving a response from the grievance reviewing authority, the inmate may appeal
to the proper administrative review authority.2 	(Id. at Ex. 9, at 12). The appeal must be
based on newly discovered or available evidence or probable error committed by the
reviewing authority. (Id.)
The policy states that grievances and grievance appeals that do not comply with OP-
090124 may not be answered. (Id. at Ex. 9, at 9, 11, 14). If an inmate submits a grievance
or grievance appeal that is non-compliant with the grievance policy, the reviewing body
will notify the inmate of the improper submission and allow the inmate one opportunity to
correct the submission within ten days. 	(Id. at Ex. 9, at 11, 13). 	If the reviewing body
finds the submission to still be non-compliant, it will consider the inmate to have
“waived/forfeited the opportunity to proceed in the grievance process.” (Id. at Ex. 9, at 11,
13).
2 Defendant Timm asserts that before an inmate may appeal to the administrative review
authority, he or she must “appeal” to the grievance review authority. 	(Doc. 26, at 2).
Plaintiff asserts that no such appeal to the grievance review authority exists. (Doc. 29, at
9). The undersigned agrees with Plaintiff and finds no provision in OP-090124 mandating
an intermediate appeal to the grievance reviewing authority. The policy plainly states that
the grievance reviewing authority is “to whom the grievance is first submitted,” (Doc. 22,
at Ex. 9, at 2), and that inmates may immediately appeal the grievance reviewing
authority’s decision to the administrative review authority, (id. at Ex. 9, at 12).
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C. 	LCRF Officials Made the Grievance Process Unavailable to Plaintiff.
The record shows that Plaintiff attempted informal resolution of his complaint by
seeking medical care directly after his injury and by submitting a Request to Staff to
Defendant Timm approximately three and a half weeks later. (Id. at Exs. 3, 10). Though
Plaintiff’s Request to Staff failed to include specific details regarding dates, places, and
personnel, as required by OP-090124, (id. at Ex. 3; see also id. at Ex. 9, at 7), Defendant
Timm answered the request and clearly became apprised of the details of Plaintiff’s
situation, as indicated by her ordering a “repeat x-ray,” (id. at Ex. 3). Neither Defendant
Timm nor the Grievance Coordinator notified Plaintiff that his Request to Staff was non-
compliant, nor did the Grievance Coordinator indicate that the non-compliant Request to
Staff formed the basis of his or her decision to return Plaintiff’s grievance unanswered.
(See id. at Exs. 3, 5, 7). 	Only Cheri Atkinson, the Medical Services Manager, noted the
deficiencies in Plaintiff’s Request to Staff in her response to Plaintiff’s final appeal. (Id.
at Ex. 8, at 2). 	Plaintiff argues that LCRF waived its opportunity to take issue with the
Request to Staff because the request was “processed, delivered, answered, and returned”
to Plaintiff with no notification of non-compliance. 	(Doc. 29, at 9). 	However, it is
immaterial whether Ms. Atkinson was authorized to reject a grievance appeal partially
based on an error in Plaintiff’s Request to Staff because, as explained below, the
undersigned concludes that the Grievance Coordinator made the grievance procedure
unavailable to Plaintiff prior to his appeal.
In Plaintiff’s first grievance, dated August 21, 2023, he stated:
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My hand has been broken since 7-10-2023, I tried to go to medical on 7-11-
2023, But was only allowed to put in a medical slip. I then had to wait until
7-18-2023 to have an x-ray which clearly showed a sharp piece of bone
broken, and pressing against the skin of my hand. I was told that it would be
fixed, But I never got called to medical or been able to see a doctor. I have
been in pain every day, But I still waited w/o causing issues, but on 8-7-2023
I finally sent an RTS to Ms. Timm[] the HSA and all she did was order
another x-ray. I have had two x-rays, The second was on 8-15-2023, They
know I’m in pain everyday and that I have no use of my hand, But still
nothing has been done to fix my hand.
(Doc. 22, at Ex. 4, at 1-2). 	On the response form to the grievance, the Grievance
Coordinator 	checked 	a 	box 	with 	corresponding 	text 	stating 	“[t]his 	grievance 	is
unanswerable as there are no time frames specified for the alleged action(s) to have
occurred” and notified Plaintiff that he had one opportunity to cure his grievance within
ten days. 	(Id. at Ex. 5). 	The Grievance Coordinator did not clarify what time frames
Plaintiff failed to provide or how the five dates provided by Plaintiff were insufficient.
(See id.)
Plaintiff then submitted another grievance, dated September 5, 2023, which stated:
On 7-10-2023 my hand was broken, Then on 7-11-2023 I put in a medical
slip, I then had to wait until 7-18-2023 to get an x-ray which clearly showed
a broken bone. 	And after a RTS to Ms. Timm[] I was given another x-ray
which showed the same, it was done 8-15-2023.
(Id. at Ex. 6). 	In the next section of the form regarding informal action taken, Plaintiff
provided the date he submitted his medical slip and the date he submitted the Request to
Staff to Defendant Timm. (Id. at Ex. 6). 	Lastly, regarding requested relief, he stated, “I
would like my hand fixed before any permanent damage is done.” (Id.) On the grievance
response form, the Grievance Coordinator checked a box with text stating, “[n]ot specific
to include dates, places, personnel involved and how affected,” and a box with text stating,
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“[y]ou have failed to follow previous instructions for filing this grievance. 	Due to your
continued failure to properly file this grievance you have waived/forfeited the opportunity
to proceed in the grievance process.” (Id. at Ex. 7). The Grievance Coordinator again did
not indicate which particular details were insufficient in the grievance. (See id.)
In both grievances, Plaintiff provided the date he was injured, the date he formally
requested medical care, the date of his first and second x-rays, and the date he submitted a
Request to Staff to Defendant Timm. 	(Id. at Exs. 4, 6). 	Thus, in the first response, the
Grievance Coordinator’s assertion that Plaintiff failed to include relevant time frames was
unfounded, and the Grievance Coordinator’s failure to answer the first grievance was
improper. When Plaintiff submitted a second grievance, the Grievance Coordinator again
failed to answer the grievance on unsupported grounds. 	Despite the second response’s
assertion to the contrary, Plaintiff provided specific dates (as discussed above), personnel
involved (Defendant Timm), and “how affected” (broken bone in hand that had not been
fixed).3 (See id. at Ex. 6). Plaintiff submitted an appeal, but the appeal was futile because
the second grievance response stated that Plaintiff had “waived/forfeited the opportunity
to proceed in the grievance process,” (id. at Ex. 7), and the Grievance Coordinator’s failure
to answer left Plaintiff without the required “Grievance Decision from Reviewing
Authority” to submit along with his appeal, (id. at Ex. 8, at 2).
3 The second grievance response also stated that Plaintiff failed to provide relevant
“places.” 	(Doc. 22, at Ex. 7). 	Since Plaintiff’s complaint involved a lack of action, and
not a particular incident that occurred at a particular location, no specific “place” within
LCRF was relevant to the complaint.
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Defendant Timm is correct that Plaintiff “fail[ed] to perfect an appeal to the
Administrative Review Authority at ODOC.” 	(Doc. 26, at 3). 	However, the Grievance
Coordinator “prevent[ed], thwart[ed], or hinder[ed] [Plaintiff’s] efforts to avail himself of
an administrative remedy” by rejecting his grievances on improper bases. Little, 607 F.3d
at 1250. 	These actions rendered the appeal and full administrative remedy on the merits
“unavailable” to Plaintiff. See id. Thus, the undersigned recommends that the Court deny
Defendant Timm’s motion for summary judgment on the affirmative defense of failure to
exhaust.
V. 	Defendant 	Timm’s 	Motion 	to 	Dismiss 	(Proposition 	II) 	and 	Motion 	for
Summary Judgment on the Merits (Proposition III) Should Be Denied.
In Proposition II, Defendant Timm argues that the Court should dismiss Plaintiff’s
claim for failure to state a claim because Plaintiff failed to adequately plead that Defendant
Timm personally participated in violating Plaintiff’s right to adequate medical care. (Doc.
26, at 3-5). 	In Proposition III, Defendant Timm argues that summary judgment is
warranted on the merits of the claim because Plaintiff did not suffer substantial harm from
a delay in care and because Plaintiff was given appropriate care “at every juncture.” (Id.
at 5-7). 	In his Response, Plaintiff contends that Defendant Timm violated his right to
adequate medical care because despite receiving the Request to Staff notifying her of
Plaintiff’s broken hand, she delayed his access to a physician, which caused severe pain
and irreparable damage. (Doc. 29, at 6-9). 	Because of the obvious overlap in the legal
analyses necessary to address Defendant Timm’s remaining Propositions, the undersigned
examines both Propositions at once and recommends the Court deny both motions.
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A. 	Deliberate Indifference to a Serious Medical Need
The Eighth Amendment, applied to the states by the Fourteenth Amendment,
proscribes 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
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. For a prisoner
to state a cognizable claim for inadequate medical attention under the Eighth Amendment,
the prisoner must satisfy both an objective and subjective prong. Strain v. Regalado, 977
F.3d 984, 989-90 (10th Cir. 2020).
The objective prong of the deliberate indifference standard looks to the nature and
severity of the medical condition. See id.
To establish the objective component, the alleged deprivation must be
sufficiently serious to constitute a deprivation of constitutional dimension. A
medical need is [objectively] serious if it is one that has been diagnosed by a
physician as mandating treatment or one that is so obvious that even a lay
person would easily recognize the necessity for a doctor’s attention.
Id. (internal citations and quotation marks omitted).
To satisfy the subjective component of the deliberate indifference standard, the
Plaintiff must demonstrate 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.” 	Strain, 977 F.3d at 989-90 (quoting Farmer v. Brennan, 511 U.S. 825, 837
(1994)). A plaintiff may use circumstantial evidence to show that the obviousness of a risk
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would have put a prison official on notice. Lance v. Morris, 985 F.3d 787, 794 (10th Cir.
2021) (citing Farmer, 511 U.S. at 842-43). A risk warranting the inference of notice must
“present [itself] as obvious to the so-called reasonable man.” Quintana v. Santa Fe Cnty.
Bd. of Comm., 973 F.3d 1022, 1029 (10th Cir. 2020) (quotation marks omitted).
B. 	A Rational Jury Could Find Both Prongs of the Deliberate Indifference
Test Satisfied.
1. 	The Objective Prong
In Proposition III, Defendant Timm contends that the objective component of the
deliberate indifference test is not satisfied because Plaintiff did not suffer substantial harm
from a delay in care. 	(Doc. 26 at 5-7). 	A delay in care rises to an Eighth Amendment
violation if the delay causes “substantial harm,” which may be evidenced by “lifelong
handicap, permanent loss, or considerable pain.” 	Mata v. Saiz, 427 F.3d 745, 751 (10th
Cir. 2005) (quoting Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2001)). “[N]ot every
twinge of pain suffered as the result of delay in medical care is actionable,” but a delay
causing unnecessary prolonged pain and suffering constitutes substantial harm, satisfying
the objective element of the deliberate indifference test. 	Sealock v. Colorado, 218 F.3d
1205, 1210 & n.5 (10th Cir. 2000) (holding objective component of deliberate indifference
test was met because delay in obtaining treatment for prisoner experiencing heart attack
caused several hours of pain and suffering).
Defendant Timm has not provided the Court with uncontroverted facts showing that
a delay in care did not cause substantial harm to Plaintiff. 	The undisputed facts are that
Plaintiff first reported that he broke a bone in his hand on July 11, 2023, (Doc. 22, at Ex.
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10), and an x-ray taken on July 18, 2023, and interpreted by a physician confirmed that a
bone in Plaintiff’s hand was fractured, (id. at Ex. 12). 	Plaintiff was not examined by a
physician until August 31, 2023, fifty-one days after his injury and twenty-two days after
notifying Defendant Timm of his injury through a Request to Staff. (Id. at Exs. 3, 10, 14).
Plaintiff reported the severity of his pain and his immobility several times: in his Request
to Staff he stated that he was in “constant pain” and “[couldn’t] use [his] hand at all,” (id.
at Ex. 3); in his initial grievance he stated that he “[had] been in pain every day,” had “no
use of [his] hand,” and was afraid of permanent damage, (id. at Ex. 4); and the referral
order from Plaintiff’s first doctor’s appointment notes that Plaintiff was in pain and
“[could] not use the left hand much,” (id. at Ex. 15). 	The report from his appointment on
August 31, 2023, shows that there was a “[p]alpable malformation at base of 2nd
metacarpal” and swelling. (Id. at Ex. 14). Plaintiff eventually underwent surgery to correct
malunion of the metacarpal fracture, dislocation of the extensor tendon, and contracture of
joints surrounding the fracture. 	(Id. at Ex. 24).
Defendant Timm contends that Plaintiff has not been substantially harmed because
that he has not “suffered any type of permanent injury as a result of the course of treatment
that was followed.” (Doc. 26, at 7). Additionally, Defendant Timm compares the instant
action to a claim in Lemmons v. Waters, 2013 U.S. Dist. LEXIS 146417 (N.D. Okla. 2013),
stating the relevant facts of that case to be that “the plaintiff complained of the [jail’s]
procedures for dispensing medications, including dropping pills on the floor,” which the
court held failed to demonstrate deliberate indifference. (Doc. 26, at 7 (citing Lemmons,
2013 U.S. Dist. LEXIS 146417, at *33-34)). Meanwhile, Defendant Timm fails to address
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the 	undisputed 	facts 	that 	Plaintiff 	repeatedly 	mentioned 	being 	in 	severe 	pain 	and
experiencing immobility in the weeks between his injury and his first doctor’s appointment,
that his hand showed obvious malformation and swelling, and that Plaintiff eventually
required surgery to correct nonunion, contracture, and dislocation.
The undersigned is perplexed by Defendant Timm’s comparing the facts of this case
to prison officials dropping pills on the floor. Furthermore, Plaintiff is not required to show
that he has suffered permanent injury from the delay in care because, based on the
undisputed facts provided by Defendant Timm in the Special Report, a reasonable jury
could find that he endured considerable pain due to the delay in medical care. 	See
McCowan v. Morales, 945 F.3d 1276, 1291 (10th Cir. 2019) (holding “several hours of
excruciating pain” due to delay in care for shoulder injury is sufficient to meet objective
prong); Sellers v. Holcomb, No. CIV-06-1249-R, 2009 WL 233360, at *5 (W.D. Okla. Jan.
30, 2009) (holding “Plaintiff’s pain and restriction of movement” caused by broken hand
during delay in care is sufficient to satisfy objective prong). Thus, summary judgment is
not warranted based on the objective component of the deliberate indifference test.
2. 	The Subjective Prong
In Proposition II, Defendant Timm argues that Plaintiff failed to sufficiently allege
that Defendant Timm personally participated in violating Plaintiff’s right to adequate
medical care. (Doc. 26, at 3-5). 	In Proposition III, Defendant Timm contends that the
subjective component of the deliberate indifference test is not satisfied because, at most,
Defendant Timm and Plaintiff merely disagreed about his plan of care. (Id. at 5-7).
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To state a § 1983 claim against an individual defendant, a plaintiff must allege
sufficient facts to demonstrate that the defendant personally participated in the alleged
violation, see Bennett v. Passic, 545 F.2d 1260, 1262-63 (10th Cir. 1976), by “identify[ing]
specific actions taken by [that] particular defendant[],” see Pahls v. Thomas, 718 F.3d
1210, 1226 (10th Cir. 2013) (quoting Tonkovich v. Kan. Bd. of Regents, 159 F.3d 504, 532
(10th Cir. 2011)). 	Medical professionals, such as Defendant Timm, may be found liable
for demonstrating deliberate indifference to a prisoner’s serious medical needs when they
have failed to properly treat a serious medical condition or when they as “gatekeepers”
have delayed or denied a prisoner access to “other medical personnel capable of treating
the condition.” 	Sealock, 218 F.3d at 1211. “Even a brief delay may be unconstitutional”
if the delay caused “unnecessary pain or a worsening of [the plaintiff’s] condition.” Mata,
427 F.3d at 755.
First, Plaintiff clearly alleges that Defendant Timm personally participated in
violating his right to adequate medical care. In the Complaint, Plaintiff states that he told
Defendant Timm, via a Request to Staff, that he was in constant pain and wanted his broken
hand to be fixed before permanent damage was done, and that she subsequently ordered
another x-ray. (Doc. 1, at 6). Plaintiff clearly alleges that Defendant Timm’s delaying his
access to treatment caused pain, suffering, and more damage to his hand. (Id.) Defendant
Timm offers no argument as to why these allegations are insufficient to allege her personal
participation, and the undersigned finds no basis for Defendant Timm’s vague and
conclusory argument. Thus, the motion to dismiss for lack of personal participation should
be denied.
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Furthermore, the factual record shows a dispute of fact regarding whether Defendant
Timm caused Plaintiff substantial harm by delaying his access to medical care despite
notice that he was in severe medical need. 	It is unclear whether Defendant Timm knew
about Plaintiff’s injury prior to receiving the Request to Staff, but the factual record shows
that Defendant Timm became aware of Plaintiff’s fractured bone and the severe pain he
was in, at the very latest, when she responded to the Request to Staff on August 9, 2023,
twenty-two days before Plaintiff was examined by a physician. 	(Doc. 22, at Ex. 3).
Defendant Timm indicated that she ordered another x-ray but did not indicate that she made
Plaintiff an appointment with a physician. (See id.) 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 a gatekeeper was to timely refer
Plaintiff to medical personnel capable of examining and treating the broken bone.
Defendant Timm’s ordering a repeat x-ray and Plaintiff’s eventual receipt of medical care
does not necessarily shield Defendant Timm from liability for delaying Plaintiff’s access
to a physician, causing excessive pain and worsening his injury. 	See Lucas v. Turn Key
Health Clinics, LLC, 58 F.4th 1127, 1138-39 (10th Cir. 2023) (explaining that a gatekeeper
cannot escape liability by providing “a modicum of care” or because the plaintiff eventually
received proper treatment); McCowan, 945 F.3d at 1292 (holding that a jury could
reasonably find the subjective prong satisfied when a police officer who knew of a
plaintiff’s “significant shoulder pain” delayed obtaining medical care for the plaintiff for
two hours).
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Defendant Timm has failed to support her contention that “[Plaintiff] provides no
facts which create an inference that Defendant [Timm] denied him medical care or was
indifferent to his medical situation.” (Doc. 26, at 5). Defendant Timm’s own facts show
that a jury could reasonably find that Defendant Timm was deliberately indifferent to
Plaintiff’s serious medical needs. 	Thus, neither dismissal nor summary judgment is
warranted on the subjective prong of the deliberate indifference test. 	Since Defendant
Timm has failed to support her arguments that Plaintiff did not adequately allege personal
participation and that the facts could not reasonably establish both prongs of the deliberate
indifference test, the Court should deny Defendant’s motion to dismiss (Proposition II) and
motion for summary judgment on the merits (Proposition III).
VI. 	Recommendation and Notice of Right to Object
In accordance with the foregoing analysis, the undersigned recommends that the
Court DENY Defendant Timm’s Motion to Dismiss or in the Alternative, Motion for
Summary Judgment and Brief (Doc. 26) in its entirety. 	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 May 2, 2025, 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).
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This Report and Recommendation does not terminate the referral.
ENTERED this 11 th day of April, 2025.
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