Brown v. Cole et al

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF OKLAHOMA
KEVIN MAURICE BROWN, 	)
)
Plaintiff, 	)
)
v. 	) 	No. CIV-24-706-R
)
FNU COLE, et al., 	)
)
Defendants. 	)
ORDER
Plaintiff, a state prisoner proceeding pro se,1 brought this civil rights action under
42 U.S.C. § 1983. The matter was referred to United States Magistrate Judge Shon T. Erwin
for initial proceedings in accordance with 28 U.S.C. § 636(b)(1)(B) and (C). Several claims
were previously dismissed upon screening and the only remaining claim is against Dr.
Michael Boger for deliberate indifference to serious medical needs in violation of the
Eighth Amendment.
Now before the Court is Judge Erwin’s Report and Recommendation [Doc. No. 71]
recommending that Dr. Boger’s Motion to Dismiss be granted and the claim dismissed for
failure to state a claim. Plaintiff filed a timely Objection [Doc. No. 72] which gives rise to
the Court’s obligation to make a de novo determination of those portions of the Report to
which a specific objection is made. 28 U.S.C. § 636(b)(1); Fed R. Civ. P. 72(b)(3).
1 Because Petitioner is proceeding pro se, the Court affords his materials a liberal
construction but does not act as his advocate. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th
Cir. 1991).
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Plaintiff alleges that Dr. Boger denied him medical care because he did not provide
him with a walking cane for several months even though he knew Plaintiff needed one
because he is blind. To succeed on this claim, Plaintiff must show that the defendant acted
with deliberate indifference to his serious medical needs, a standard that includes both an
objective and a subjective component. Lucas v. Turn Key Health Clinics, LLC, 58 F.4th
1127, 1136 (10th Cir. 2023). Judge Erwin’s Report found that Plaintiff failed to allege the
subjective component because he had not included facts plausibly showing that Dr. Boger
was subjectively aware that Plaintiff faced a substantial risk of serious harm by not having
a walking stick.
Plaintiff’s 	Objection 	does 	not 	substantively 	engage 	with 	the 	analysis 	and
conclusions reached in the Report. Because Plaintiff has not raised a specific objection to
the Report, he has waived further review of the issues contained therein. See United States
v. 2121 E. 30th St., 73 F.3d 1057, 1060 (10th Cir. 1996). In any event, upon review of
relevant filings, the Court concurs with Judge Erwin that Plaintiff has not plausibly alleged
that Dr. Boger acted with deliberate indifference to his serious medical needs. The facts
are not sufficient to plausibly show that Dr. Boger, even if he had knowledge of Plaintiff’s
blindness, knew of and disregarded a substantial risk of serious harm by not providing a
walking stick. At most, Plaintiff indicates a disagreement with Dr. Boger’s treatment
decisions, which is not sufficient to state a constitutional violation.
Accordingly, the Court ADOPTS the Report and Recommendation [Doc. No. 71].
Dr. Boger’s Motion to Dismiss [Doc. No. 61] is GRANTED and Plaintiff’s Motion for
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Permanent Injunction [Doc. No. 59] is DENIED as moot. This action is dismissed without
prejudice.
IT IS SO ORDERED this 10th day of February, 2026.
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