Brown

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 Maurice Brown, a convicted state prisoner, appearing , and

, has filed a Complaint under 42 U.S.C. § 1983. (ECF No. 1). Previously,

and after screening the Complaint, the Court concluded that Plaintiff had stated a claim

against Defendant Dr. Michael Boger, in his individual capacity and for monetary

damages, for a violation of Plaintiff’s Eighth Amendment rights based on the denial of a

walking stick. ECF Nos. 28 & 33. Currently before the Court are: (1) Dr. Boger’s

Motion to Dismiss this claim, Plaintiff’s Response and Supplement, and Dr. Boger’s Reply

and (2) Plaintiff’s Motion for a Permanent Injunction. (ECF Nos. 61, 63, 65, 68, 59). The

Court should: (1) GRANT Dr. Boger’s Motion to Dismiss and (2) DENY Plaintiff’s Motion

for a Permanent Injunction.1

1 Although on screening, the Court found that Plaintiff had stated a claim against Dr. Boger, the

Court is free to revisit its earlier finding, as the “law of the case doctrine has no bearing on the

revisiting of interlocutory orders.” , 647 F.3d 1247, 1252 (10th Cir. 2011);

, 495 F.3d 1217, 1224–25 (10th Cir. 2007) (“[D]istrict courts

generally remain free to reconsider their earlier interlocutory orders.”); , No.

18-619, JCH/GBW, 2021 WL 3618315, at *7 (D.N.M. Aug. 16, 2021) (“[U]pon further review,

many of the claims that the Court found to state a claim for relief during its preliminary screening,

do not do so upon further review.”); , 143 F. App’x 165, 168

(11th Cir. 2005) (“[T]he wording of § 1915A does not indicate that a district court may only

conduct one review of a prisoner’s civil action.)”

I. PLAINTIFF’S COMPLAINT/ALLEGATIONS AGAINST DR. BOGER

Mr. Brown is a legally blind prisoner who has resided at the Red Rock Correctional

Center (“Red Rock”) since December 26, 2023. (ECF No. 1:14).2 According to Mr. Brown,

he arrived at Red Rock with instructions from his former facility that due to his blindness,

he was to be provided with a walking stick for ambulation. (ECF Nos. 1:14.) In support

of these allegations, Plaintiff relies on an activity housing summary dated October 17,

2023, which states that he “uses a walking stick to alert others of blindness.” (ECF No.

1-1:3). As stated previously, however, this document does not represent “orders” for a

walking stick, rather it only indicated Plaintiff’s use of a walking stick at a previous facility.

(ECF No. 28:9). Despite the instructions, however, Plaintiff states that for 5½ months he

was not given a walking stick. (ECF No. 1:10, 12-13). Plaintiff blames Defendant Boger

for the oversight and alleges that he committed deliberate indifference in violation of the

Eighth Amendment by failing to provide Plaintiff with a walking stick. .

II. STANDARD OF REVIEW—MOTION TO DISMISS

Dr. Boger seeks dismissal under Federal Rule of Civil Procedure 12(b)(6). (ECF No.

61). 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.’” ,

556 U.S. 662, 678 (2009) (quoting , 550 U.S. 544, 570 (2007)).

Plausibility, in this context, “refer[s] to the scope of the allegations in a complaint: if they

are so general that they encompass a wide swath of conduct, much of it innocent, then

2 Red Rock Correctional Center was formerly named the Lawton Correctional Facility.

https://oklahoma.gov/doc/newsroom/2025/odoc-to-rename-lawton-correctional-and-

rehabilitation-facility.html (last visited Jan. 12, 2026).

the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.’”

, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting , 550 U.S.

at 570). 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.” at 1248. To

that end, “[t]hreadbare recitals of the elements of a cause of action, supported by mere

conclusory statements, do not suffice.” , 556 U.S. at 678. However, “a well-pleaded

complaint may proceed even if it strikes a savvy judge that actual proof of those facts is

improbable, and that a recovery is very remote and unlikely.” , 550 U.S. at 556

(internal quotations omitted).

III. DISMISSAL OF THE CLAIM AGAINST DR. BOGER

Dr. Boger has filed a Motion to Dismiss the Eighth Amendment claim, and the Court

should grant the motion.

The test for constitutional liability of prison officials under the Eighth Amendment

“involves both an objective and a subjective component.” 218 F.3d

1205, 1209 (10th Cir. 2000). First, the prisoner must allege that the deprivation at issue

was in fact “sufficiently serious.” 511 U.S. 825, 834 (1994) (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.” 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.

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.” 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.” 511 U.S.

at 836. The Supreme Court in analogized this standard to criminal recklessness,

which makes a person liable when she consciously disregards a substantial risk of serious

harm. at 836–38. Thus, “[d]eliberate indifference does not require a finding of express

intent to harm.” 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 .” 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.” 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.

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.” 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); 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

“disposition” stated: “You have no order for a walking stick.” (ECF No. 1-1:11);

ECF No. 1-2:1 (comment from health care service provider stating “You have no order

for . . . walking stick.”). Despite the apparent lack of “orders” for a 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.

The issue, however, becomes whether Mr. Brown has sufficiently alleged that Dr.

Boger acted with deliberate indifference to his serious medical needs in denying Plaintiff

a walking stick. The Court should conclude that he has not. As noted by Dr. Boger, Plaintiff

has failed to allege that he faced a substantial risk of injury or harm directly related to

Dr. Boger’s failure to provide him with a walking stick. (ECF No. 61:7). The report from

Plaintiff’s former facility indicates that Plaintiff had used a walking stick “to alert others

of [his] blindness.” . That report also indicated that Mr. Brown had “adaptive

devices” for his blindness, including glasses and a cane, and Mr. Brown has not alleged

that he had not been provided with these items. ECF No. 1.

To satisfy the subjective component under the Eighth Amendment, Plaintiff must

allege that Dr. Boger failed to ensure that Plaintiff received a walking stick “despite his

knowledge of a substantial risk of serious harm.” . But Plaintiff has failed to

allege that he was at risk of substantial harm of which Dr. Boger was aware, or suffered

any harm from not having the walking stick; and in fact, Plaintiff’s own records indicate

that the walking stick was used only to alert others of his blindness.

In a supplement to his response to Defendant Boger’s Motion to Dismiss, Mr.

Brown states that Dr. Boger “saw the housesing [sic] order [and] left [him] . . . without

a walking stick.” (ECF No. 65:1). Plaintiff then states that he “fell down 6 steps,” breaking

his big toe. (ECF No. 65:1). But Plaintiff’s attempt to connect the “housesing [sic] order”

to his accident involving his big toe does not establish that Dr. Boger knew Plaintiff faced

a substantial risk of serious harm sufficient to satisfy the subjective component under the

Eighth Amendment, as the “housesing [sic] order” stated that Plaintiff needed the

walking stick to alert others of his blindness, not that he needed the walking stick for

stability or steadiness while walking. .

As argued by Dr. Boger, Plaintiff has, at best, merely alleged a desire for a walking

stick, not that one was medically necessary for him to walk. The fact that Dr. Boger had

seen the housing order which indicated that Plaintiff used a walking stick to alert others

of his blindness, but chose not to prescribe this device, is simply a mere difference of

medical opinion, which does not rise to the level of an Eighth Amendment violation.

429 U.S. at 107. As a result, the Court should conclude that Plaintiff has not stated

a claim against Defendant Boger for deliberate indifference in violation of the Eighth

Amendment for denial of the walking stick. , 243 F. App’x 10, 1 (5th

Cir. 2007) (holding a physician’s failure to provide an inmate with a walking stick

constitutes “a difference in opinion or a malpractice claim . . . and thus does not establish

an Eighth Amendment violation.”).

IV. PLAINTIFF’S MOTION FOR A PERMANENT INJUNCTION

Mr. Brown has filed a “Motion Requesting a Permanent injunction on Red Rock

Corr. Center.” (ECF No. 59). In the motion, Plaintiff request that “The Court grant his

motion for a emergy [sic] injunction against the same staff and Fac, with a different

name.” (ECF No. 59:1). Plaintiff describes “threats may [sic] by the staff here And Ms.

Brown is still lying on legal paperwork.” (ECF No. 59:2). Mr. Brown further describes a

“Request from her to me still telling a lie for the Court to see” and “The exhibits that are

on the case on Dr. Boger D.O. show that medical supervisor Brown tells lies on paper.”

(ECF No. 59:2). Plaintiff states that “[a] move to a D.O.C. fac. with a medical unit is in

order A.S.A.P.” (ECF No. 59:2). But with the adoption of this Report and

Recommendation, the Court should deny Plaintiff’s motion as moot.

, No. 2:25-cv-00003-DAK-SMR, 2025 WL 2109694, at *3 (D. Utah July 2,

2025) (“Because the undersigned has recommended that the entirety of Plaintiff’s

Complaint be dismissed, the undersigned further recommends denying Plaintiff’s request

for injunctive relief (ECF 7) as moot.”); , 2025 WL 2106593.

V. RECOMMENDATION AND NOTICE OF RIGHT TO OBJECT

The Court should dismiss 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. With this dismissal there are no remaining claims.

The Plaintiff is advised of his right to object to this Report and Recommendation.

28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by

January 30, 2026. 28 U.S.C. § 636(b)(1); and Fed. R. Civ. P. 72(b)(2). Failure to

make a 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).

VI. STATUS OF THE REFERRAL

This Report and Recommendation terminates the referral to the undersigned

magistrate judge in the captioned matter.

ENTERED on January 15, 2026.

SHON T. ERWIN

UNITED STATES MAGISTRATE JUDGE