Albright v. GEO Group Inc et al

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.
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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
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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.)
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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).
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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
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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
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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.”
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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
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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).
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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).
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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.
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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.
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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.
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