Brown v. Cole et al

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
KEVIN MAURICE BROWN, )
)
Plaintiff, )
)
v. ) Case No. CIV-24-706-R
)
FNU COLE et al., )
)
Defendants. )
REPORT AND RECOMMENDATION
Plaintiff Kevin Brown, a convicted state prisoner, appearing
pro se, and
in forma
pauperis, has filed a Complaint under 42 U.S.C. § 1983. (ECF Nos. 1). United States
District Judge David L. Russell has referred this matter to the undersigned magistrate
judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B)-(C). A review of the
Complaint has been conducted pursuant to 28 U.S.C. § 1915A(a) and 28 U.S.C. §
1915(e)(2)(B). Based on that review, it is recommended that the Court DISMISS all
claims against all Defendants, with the exception of the individual capacity claim for
monetary damages against Dr. Boger for a violation of Plaintiff’s Eighth Amendment rights
based on the denial of a walking stick.
I. SCREENING REQUIREMENT
The Court must review each complaint in which a prisoner seeks redress against
a governmental entity, officer, or employee and each case in which a plaintiff proceeds
in forma pauperis. 28 U.S.C. § 1915A(a). The Court is required to dismiss the complaint
or any portion of the complaint that is frivolous or malicious, fails to state a claim on
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which relief may be granted, or seeks monetary relief against a defendant who is immune
from such relief.
See 28 U.S.C. § 1915A(b);
see also Kay v. Bemis, 500 F.3d 1214, 1217–
18 (10th Cir. 2007) (indicating that court uses same analysis for complaint’s sufficiency
whether performed sua sponte or pursuant to a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6)).
II. STANDARD OF REVIEW
The Court must accept Mr. Brown’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 (10th Cir. 2007). Since Mr. Brown is proceeding
pro se, his Complaint must be construed liberally.
See id. at 1218. The Court “review[s]
the complaint for plausibility; that is, to determine whether the complaint includes enough
facts to state a claim to relief that is plausible on its face.”
Young v. Davis, 554 F.3d 1254,
1256 (10th Cir. 2009) (quotations and citation omitted). “Plausible” in this context does
not mean “likely to be true,” but rather refers “to the scope of the allegations in a
complaint: if they are so general that they encompass a wide swath of conduct,” then
the plaintiff has not “nudged (his) claims across the line from conceivable to plausible.”
Bell Atlantic v. Twombly, 550 U.S. 544, 570 (2007). The plausibility requirement “serves
not only to weed out claims that do not (in the absence of additional allegations) have a
reasonable prospect of success, but also to inform the defendants of the actual grounds
of the claim against them.”
Robbins v. Oklahoma, 519 F.3d 1242, 1248 (10th Cir. 2008).
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Whether a complaint contains sufficient facts to avoid dismissal is context-specific
and is determined through a court’s application of “judicial experience and common
sense.”
Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).
III. PLAINTIFF’S COMPLAINT/ALLEGATIONS
Mr. Brown is a legally blind prisoner who has resided at the Lawton Correctional
Facility (LCF) since December 26, 2023. (ECF No. 1:14). According to Mr. Brown, he
arrived at LCF with instructions from his former facility that due to his blindness, he was
to be assigned a bunk in which to sleep and a walking stick for ambulation. (ECF Nos.
1:14, 18, 1-1:3). Despite the instructions, however, Plaintiff states that for 5½ months
he was assigned a top bunk and was not given a walking stick. (ECF No. 1:10, 12-13).
Plaintiff also states that he is a patient at Dean McGee Eye Institute (Dean McGee)
and was told by medical personnel there that for his visit on March 12, 2024, he would
need to bring results of a CT scan, and an “xray and report.” (ECF No. 1:9). According to
Mr. Brown, LCF officials “would not send” the requested information with him for his
appointment, which “stop[ed] [him] from beening [sic] treated by Dean McGee[.]” (ECF
No. 1:9-11). Finally, Mr. Brown contends that a physician at the Oklahoma State
Penitentiary (OSP) wrote that the safest place for Mr. Brown to reside would be the
Joseph Harp Correctional Center (JHCC) due to his blindness. (ECF No. 1:10, 15, 19, 22).
Even so, Plaintiff argues that LCF personnel are “stoping [sic] the transfer.” (ECF No.
1:11).
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Plaintiff has sued seven Defendants: (1) FNU Cole, Warden at LCF; (2) FNU Timms,
Medical Director at LCF; (3) FNU Knowles, nurse at LCF; (4) Michael Boger, physician at
LCF;1 (5) FNU Green, LCF “Classification Dept.”; (6) FNU Marty, LCF “Classification Case
Supervisor;” and (7) Steven Harpe; DOC Director.2 (ECF No. 1:1, 4, 6-7, 18). Mr. Brown
sues each defendant in his/her individual and official capacities and seeks monetary
damages as well as injunctive in the form of a medical transfer to another prison and
declaratory relief. (ECF No. 1:13, 15, 17, 18, 21, 22).
IV. DEFENDANTS HARPE AND COLE
As Defendants, Plaintiff has named Mr. Harpe, Director of the Oklahoma
Department of Corrections and Mr. Cole, Warden at LCF.
See supra. But in the body of
the Complaint, Mr. Brown fails to allege any wrongdoing committed by either Defendant.
See ECF No. 1. Where, as here, a § 1983 complaint “fails to isolate the allegedly
unconstitutional acts of each defendant,” it is “impossible for any of [the] individuals to
ascertain what particular unconstitutional acts they are alleged to have committed.”
Robbins v. Oklahoma, 519 F.3d 1242, 1250 (10th Cir. 2008). Here, Mr. Brown’s failure to
link either Defendant Cole or Defendant Harpe with any of the alleged violations, renders
the Complaint legally deficient with respect to these Defendants.
See Nasious v. Two
1 The Court Clerk’s office has mis-docketed Defendant Boger’s last name as “Boyer,” but it
appears as though his last name is actually spelled “Boger.” The Court Clerk’s office shall correct
the error on the docket sheet.
2 In the Complaint, Plaintiff names “Steven ________, Director . . .] of the State of Oklahoma of
Department of Corr.” (ECF No. 1:18). The undersigned takes judicial notice that the fact that
Steven Harpe is the current Director of the Oklahoma Department of Corrections and presumes
that he is the intended Defendant.
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Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d 1158, 1163 (10th
Cir. 2007) (explaining “that, to state a claim in federal court, a complaint must explain
what each defendant did to [the pro se plaintiff]; when the defendant did it; how the
defendant's action harmed (the plaintiff); and, what specific legal right the plaintiff
believes the defendant violated.”). As a result, the Court should dismiss any claim against
Defendants Harpe and Cole, without prejudice, for failure to state a claim.
See Mayfield
v. Presbyterian Hosp. Admin., 772 F. App'x 680, 686 (10th Cir. 2019) (affirming dismissal
when complaint contained “undifferentiated allegations” that did not “provide fair notice”
to defendants because plaintiff had not “attributed specific acts to them”).
see also Adams
v. GEO Group Inc., 2022 WL 2392878, at *4 (W.D. Okla. May 25, 2022) (recommending
dismissal of defendants named in the style of the complaint only),
adopted, 2022 WL
2392644 (W.D. Okla. July 1, 2022).
V. MEDICAL TRANSFER CLAIM
As stated, Mr. Brown believes he should be transferred to JHCC because a
physician at OSP allegedly told Plaintiff that it would be the best place for him to reside,
presumably due to his blindness.
See supra. According to Plaintiff, Defendants Green and
Marty, members of the “Classification Dept.” at LCF, were aware of his need and have
the ability to prepare a transfer packet for him to transfer to JHCC, but they “didn’t do
one.” (ECF No. 1:12). Additionally, Plaintiff states that Ms. Timms “kept saying no need
for a move” and is “stoping The transfer.” (ECF No. 1:11). Plaintiff argues that these
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Defendants’ unwillingness to transfer him constitutes deliberate indifference to his serious
medical needs. (ECF No. 9-10, 20).
In a prison-conditions case, the required culpable state of mind is “deliberate
indifference to inmate health or safety.”
Farmer v. Brennan, 511 U.S. 825, 834 (1994).
(internal quotation marks omitted). To be liable, an official must “know[ ] of and
disregard[ ] 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 he must also draw the inference.”
Id. at 837. In the context of medical care,
negligent diagnosis or treatment is not enough to demonstrate a constitutional violation.
See Estelle v. Gamble, 429 U.S. 97, 106 (1976). “[T]he subjective component is not
satisfied, absent an extraordinary degree of neglect, where a doctor merely exercises his
considered medical judgment.”
Self v. Crum, 439 F.3d 1227, 1232 (10th Cir. 2006).
Further, “an official’s failure to alleviate a significant risk that he should have perceived
but did not, while no cause for commendation, cannot under our cases be condemned as
the infliction of punishment.”
Farmer, 511 U.S. at 838.
Here, the Complaint does not allege any facts which would indicate that
Defendants Green, Marty, or Timms had acted with a sufficiently culpable state of mind
to qualify as deliberate indifference in violation of the Eighth Amendment by not
approving Plaintiff’s medical transfer. At best, Plaintiff has alleged only a difference of
opinion in medical judgment regarding whether his blindness warranted a medical
transfer.
See supra (Plaintiff’s allegations that Ms. Timms did not believe a move was
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necessary). But “a difference of opinion does not support a claim of cruel and unusual
punishment.”
Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993). As a result, the Court
should dismiss the allegations against Defendants Green, Marty, and Timms, based on a
failure to transfer him to JHCC.
See Foreman v. Elam, 796 F. App’x 529, 532 (10th Cir.
2019) (allegations that prison official had failed to approve a medical transfer, without
more, “[a]t best, it raises the mere possibility of misconduct by [the prison official], which
is insufficient to state a plausible [Eighth Amendment] claim.”).3
VI. MEDICAL RECORDS CLAIM
Mr. Brown alleges that medical personnel at Dean McGee requested that he bring
specific medical records with him for an appointment in March 2024.
See supra. But
according to Plaintiff, Defendants Boger, Knowles, and Timms prevented him from
receiving treatment at that appointment because they failed to send the information with
him. (ECF No. 1:9-11, 14, 19). The problem with Plaintiff’s allegations, however, is that
they involve collective assertions against multiple Defendants.
See ECF No. 1:11 (“They
had All Reports But Keep All the Records.”); ECF No. 1:14 (“This Medical Dept. Keep the
Reports[.]”); ECF No. 1:19 (“LCF Medical Dept. Send me back to Dean, McGee Without
the Cat Scan, xrays or the medical report.”).
The Tenth Circuit Court of Appeals has stated that where a plaintiff has brought
claims against more than one defendant, “it is particularly important . . . that the
3 With the dismissal of this claim, Plaintiff’s request for injunctive relief in the form of a medical
transfer is also dismissed.
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complaint make clear exactly
who is alleged to have done
what to
whom, to provide each
individual with fair notice as to the basis of the claims against him.”
Robbins v. Oklahoma,
519 F.3d at 1250. Here, Mr. Brown has failed to do so, but instead has made collective
allegations against the entirety of the LCF “Medical Department,” which presumably
consists of Defendants Boger, Knowles, and Timms.
See supra. This failure renders the
Complaint legally insufficient, and the Court “will not supply additional factual allegations
to round out a plaintiff’s complaint or construct a legal theory on plaintiff’s behalf.”
Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997). As a result, the Court
should conclude that Plaintiff has failed to state a claim against Defendants Boger,
Knowles, and Timms based on a failure to send medical reports to Dean McGee.
See
Nasious v. Two Unknown B.I.C.E. Agents, at Arapahoe County Justice Center, 492 F.3d
1158, 1163 (10th Cir. 2007) (explaining “that, to state a claim in federal court, a complaint
must explain what each defendant did to [the pro se plaintiff]; when the defendant did
it; how the defendant’s action harmed (the plaintiff); and, what specific legal right the
plaintiff believes the defendant violated.”).
Based on the forgoing, the Court should dismiss the Complaint without prejudice
because it does not “make clear exactly
who is alleged to have done
what to
whom,”
and, as such, does not provide any of the Defendants with “fair notice as to the basis of
the claims against him[.]”
Robbins v. Oklahoma, 519 F.3d at 1250;
see also Brooks v.
Colo. Dep't of Corr., 762 F. App’x 551, 557-58 (10th Cir. 2019) (explaining that the
standard set forth in
Robbins, is “the standard by which [courts] review complaints
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asserting § 1983 claims against multiple defendants”);
see also Mayfield v. Presbyterian
Hosp. Admin., 772 F. App’x 680, 686 (10th Cir. 2019) (affirming dismissal when complaint
contained “undifferentiated allegations” that did not “provide fair notice” to defendants
because plaintiff had not “attributed specific acts to them”).
VII. CLAIM INVOLVING WALKING STICK AND BUNK ASSIGNMENT
Mr. Brown alleges that he arrived at LCF on December 26, 2023, with orders to
sleep on a bottom bunk and to have a walking stick to aid with his blindness, but that the
orders were not followed for 5½ months.
See supra. Plaintiff blames Defendant Boger
for the oversight involving the walking stick and alleges that he committed deliberate
indifference in violation of the Eighth Amendment by failing to comply with said orders.
See supra.
In support of his allegations, Plaintiff attaches an “Activity Housing Summary” form
dated October 17, 2023, which indicates that he is legally blind, had been assigned a
lower bunk, and “[u]se[d] a walking stick to alert others of blindness.” (ECF No. 1-1:3).
But this document does not represent “orders” for a walking stick and a lower bunk,
rather it only indicated Plaintiff’s use of a walking stick and sleeping on a lower bunk as
of October 17, 2023. Even so, the Court should conclude that Plaintiff has stated a claim
against Defendant Boger for deliberate indifference to his serious medical needs under
the Eighth Amendment for denial of a walking stick. Mr. Brown does not state that a
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particular defendant denied him a lower bunk, so the Court should dismiss this claim.
See
supra.4
The test for constitutional liability of prison officials under the Eighth Amendment
“involves both an objective and a subjective component.”
Sealock v. Colorado, 218 F.3d
1205, 1209 (10th Cir. 2000). First, the prisoner must allege that the deprivation at issue
was in fact “sufficiently serious.”
Farmer, 511 U.S. at 834 (citations omitted). A medical
need is sufficiently 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.”	
Sealock, 218 F.3d at 1209. The
subjective prong of the deliberate indifference test at the pleading stage requires the
plaintiff to allege that a prison official acted with a sufficiently culpable state of mind.
See
Estelle, 429 U.S. at 106. The subjective component is satisfied if the 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.”
Farmer, 511 U.S. at 837.
Furthermore, the deliberate indifference standard lies “somewhere between the
poles of negligence at one end and purpose or knowledge at the other.”
Farmer, 511 U.S.
4 On page 13 of the Complaint, Plaintiff states that Dr. Boger “would not order a walking stick,
say[ing] [Plaintiff] didn’t now have one, at all or a order for that.” (ECF No. 1:13). Mr. Brown then
states that he went 5½ months without the stick and 5½ months on a “top floor top bed,” but
he does not name Dr. Boger or any other Defendant as the party responsible for the allegedly
improper bunk assignment.
See ECF No. 1:14 (stating that the “fac Classification Dept” put [him]
on . . . upper floor top bed.”).
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at 836. The Supreme Court in
Farmer analogized this standard to criminal recklessness,
which makes a person liable when she consciously disregards a substantial risk of serious
harm.
Id. at 836–38. Thus, “[d]eliberate indifference does not require a finding of express
intent to harm.”
Mitchell v. Maynard, 80 F.3d 1433, 1442 (10th Cir.1996) (citation
omitted). An inmate “need not show that a prison official acted or failed to act believing
that harm actually would befall an inmate; it is enough that the official acted or failed to
act
despite his knowledge of a
substantial risk of serious harm.”
Farmer, 511 U.S. at 842
(emphasis added). An official “would not escape liability if the evidence showed that he
merely refused to verify underlying facts that he strongly suspected to be true, or declined
to confirm inferences of risk that he strongly suspected to exist.”
Id. at 843 n. 8.
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.
Id. at 842 (internal citations omitted). 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.”
Garrett v. Stratman, 254 F.3d 946, 950 (10th Cir. 2005) (citation omitted).
Here, Plaintiff states that Dr. Boger told him that “Dean McGee Eye Inst. In Okla.
City didn’t . . . sign off for no walking stick at all.” (ECF No. 1:14);
see also ECF No. 1:19
(same allegations); ECF No. 1-1:5 (“[Dr. Boger] said that Dean McGee has not Order no
walking stick[.]”). Indeed, when Plaintiff submitted a request to staff on this issue, the
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“disposition” stated: “You have no order for a walking stick.” (ECF No. 1-1:11);
see also
ECF No. 1-2:1 (comment from health care service provider stating “You have no order
for . . . walking stick.”). These allegations indicate that Defendant Boger was aware of
Plaintiff’s blindness (which is “sufficiently serious” to meet the objective component of
the Eighth Amendment test) and even though he may have failed to act on Plaintiff’s
request for a walking stick not believing that harm actually would befall Mr. Brown, it is
enough that he failed to act on the request “despite his knowledge of a substantial risk
of serious harm.” As a result, the Court should conclude that Plaintiff has stated a claim
against Defendant Boger for deliberate indifference in violation of the Eighth Amendment
for denial of the walking stick.
As stated, Plaintiff has sued Defendant Boger in his official and individual
capacities, seeking declaratory relief and monetary damages.5 The request for declaratory
relief should be dismissed for lack of subject matter jurisdiction and the request for
monetary damages should be limited to Defendant Boger in his individual capacity.
Because “[f]ederal courts ‘have an independent obligation to determine whether
subject-matter jurisdiction exists, even in the absence of a challenge from any party,’ a
court may
sua sponte consider whether there is subject matter jurisdiction ‘at any stage
in the litigation.’ ”
See 1mage Software, Inc. v. Reynolds & Reynolds Co., 459 F.3d 1044,
1048 (10th Cir. 2006) (quoting
Arbaugh v. Y & H Corp., 546 U.S. 500, 501 (2006));
see
5 Plaintiff also sought injunctive relief in the form of a “medical transfer” to another prison, but
the undersigned recommended dismissal of that request coinciding with the recommended
dismissal of Plaintiff’s medical transfer claim.
See supra.
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also Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-
matter jurisdiction, the court must dismiss the action.”). Accordingly, the undersigned
considers whether the Court has subject matter jurisdiction over Plaintiff’s request for
declaratory relief.
The Declaratory Judgment Act (DJA), 28 U.S.C. § 2201, “validly confer[s]
jurisdiction on federal courts to issue declaratory judgments in appropriate cases.”
Calderon v. Ashmus, 523 U.S. 740, 745 (1998). The DJA explicitly incorporates the case
or controversy requirement of the Constitution by stating: “In a case of actual controversy
within its jurisdiction, . . . any court of the United States . . . may declare the rights and
other legal relations of any interested party seeking such declaration.” 28 U.S.C. §
2201(a). The Court therefore considers the issue of jurisdiction pursuant to Rule 12(b)(1)
with respect to Plaintiff's request for declaratory judgment.
See, e.g.,
Van Deelen v.
Fairchild, No. 05-2017, 2005 WL 3263885, at *7 (D. Kan. Dec. 1, 2005).
“It is well established that what makes a declaratory judgment action a proper
judicial resolution of a case or controversy rather than an advisory opinion is the settling
of some dispute which affects the behavior of the defendant toward the plaintiff.”
Id.
(citations omitted). In other words, “where a plaintiff seeks a declaratory judgment
against his opponent, he must assert a claim for relief that, if granted, would affect the
behavior of the particular parties listed in his complaint.”
Id.
To establish that a case or controversy exists, Plaintiff must demonstrate that the
controversy is: (1) definite, concrete, and touches on the legal relations of the parties,
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and (2) sufficiently immediate and real.
Aetna Life Ins. Co. v. Haworth, 300 U.S. 227,
240-41 (1937);
Md. Cas. Co. v. Pac. Coal & Oil Co., 312 U.S. 270, 273 (1941). In short,
“[t]he ultimate question is whether declaratory relief will have some effect in the real
world.”
Van Deelen, 2005 WL 3263885, at *7 (citing
Citizens for Responsible Gov't State
Political Action Comm. v. Davidson, 236 F.3d 1174, 1182 (10th Cir. 2000)). The mere fact
that Plaintiff’s requested relief would give Plaintiff the satisfaction that he was wronged
in the past does not create an actual, live controversy.
Id. (citing
Bauchman v. West High
Sch., 132 F.3d 542, 548-49 (10th Cir. 1997) (holding that the case or controversy
requirement was not met because the plaintiff's requested declaratory relief was moot)).
Further, “[e]ven if subject matter jurisdiction exists, the Court has unique and substantial
discretion to determine the propriety of declaratory judgment[.]”
Id. (citing
Exec. Risk
Indem. Inc. v. Sprint Corp., 282 F. Supp. 2d 1196, 1202 (D. Kan. 2003)).
Here, Mr. Brown seeks a declaratory judgment holding that “the acts and omissions
described herein violated Plaintiff’s rights under the constitution and laws of the United
States.” (ECF No. 1:21). Thus, Plaintiff seeks a declaration that his constitutional rights
were violated by Defendants. If the Court were to grant his request, the declaratory
judgment would not “affect[ ] the behavior of [D]efendant[s] toward [P]laintiff,” because
Defendants would not be required to take any action.
See Rhodes v. Stewart, 488 U.S.
1, 4 (1988). In other words, Plaintiff is seeking a retrospective opinion that Defendants
wrongly harmed him, which is an impermissible use of a declaratory judgment.
See
Ashcroft v. Mattis, 431 U.S. 171, 172 (1977) (holding that a claim for declaratory relief
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was moot where the “primary claim of a present interest in the controversy is that [the
plaintiff] will obtain emotional satisfaction from [the] ruling”);
Green v. Branson, 108 F.3d
1296, 1299 (10th Cir. 1997) (“This ‘legal interest’ must be more than simply the
satisfaction of a declaration that a person was wronged.”). Thus, the Court should find
that there is no case or controversy with regard to Plaintiff's requested declaratory relief
regarding past alleged wrongs. Accordingly, the Court should dismiss Mr. Brown’s request
for declaratory relief without prejudice for lack of subject matter jurisdiction.
See Brereton
v. Bountiful City Corp., 434 F.3d 1213, 1216-17 (10th Cir. 2006) (recognizing established
rule that “where the district court dismisses for lack of jurisdiction . . . , the dismissal
must be without prejudice” because a court without jurisdiction lacks power “to make any
determination of the merits of the underlying claim”).
Regarding Plaintiff’s request for monetary damages, the Tenth Circuit Court of
Appeals has long held that “Section 1983 plaintiffs may sue individual-capacity defendants
only for money damages and official-capacity defendants only for injunctive relief.”
Brown
v. Montoya, 662 F.3d at 1161 n.5. As a result, the Court should dismiss, with prejudice,
the official capacity claims against Defendant Boger for monetary damages, limiting the
claim against Defendant Boger to his individual capacity seeking monetary damages.
VIII. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT
The Court should dismiss all claims against all Defendants, with the exception of
the individual capacity claim for monetary damages against Dr. Boger for a violation of
Plaintiff’s Eighth Amendment rights based on the denial of a walking stick.
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Plaintiff is hereby advised of his right to object to this Report and
Recommendation.
See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the
District Court by December 9, 2024.
See 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P.
72(b)(2). Failure to make timely objection to this Report and Recommendation waives
the right to appellate review of both factual and legal questions contained herein.
Casanova v. Ulibarri, 595 F.3d 1120, 1123 (10th Cir. 2010).
IX. STATUS OF THE REFERRAL
This Report and Recommendation does not terminate the referral to the
undersigned magistrate judge in the captioned matter.
ENTERED on November 22, 2024.
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