Martinez v. Thraikill

          ORDER

          RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.

         This matter arises from Defendants' alleged deliberate indifference to the medical needs of Plaintiff arising from an injury to his tooth. Defendants moved to dismiss for failure to state a claim (ECF No. 20), which motion the Magistrate Judge recommended granting (the “Recommendation”) (ECF No. 28). Plaintiff has filed an Objection (ECF No. 31), to which Defendants have filed a Response (ECF No. 32). Although the Federal Rules of Civil Procedure do not provide for a reply, see Fed. R. Civ. P. 72(b)(2) (setting forth due dates for objections and an opposing party's response to such objections), Plaintiff nonetheless filed a Reply (ECF No. 35).^[1] The matters are ripe for resolution.

         I. BACKGROUND

         Briefly, according to allegations in the operative complaint, on December 5, 2016, Plaintiff bit into a rock while eating his meal where he was jailed. Thereafter, Plaintiff submitted several dental and medical kites seeking a soft diet and/or dental care. Plaintiff was not provided a soft diet and did not get the dental care he sought, i.e., a root canal. Plaintiff was provided with medication and ultimately had his tooth pulled. Plaintiff's claim two against Defendants survived an early order of dismissal (ECF No. 9). These Defendants' motion to dismiss argues Plaintiff's allegations fail to state a claim for deliberate indifference to his medical needs, the sole remaining claim in this case. The Magistrate Judge agreed, recommending dismissal. Plaintiff's objection followed.

         II. LEGAL STANDARD

         A. Review of a Magistrate Judge's Report and Recommendation

         When a magistrate judge issues a recommendation on a dispositive matter, Federal Rule of Civil Procedure 72(b)(3) requires the district court judge to “determine de novo any part of the magistrate judge's [recommendation] that has been properly objected to.” In conducting its review, “[t]he district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions.” Fed.R.Civ.P. 72(b)(3). An objection is proper if it is filed within fourteen days of the magistrate judge's recommendations and specific enough to enable the “district judge to focus attention on those issues-factual and legal-that are at the heart of the parties' dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059 (10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of a timely and specific objection, “the district court may review a magistrate's report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Fed.R.Civ.P. 72 Advisory Committee's Note (“When no timely objection is filed, the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.”).

         B. Motion to Dismiss

         As no party objects to the Magistrate Judge's statement of the standard applicable to motions to dismiss, and the Court finds such statement to be correct, the standard set forth in the Recommendation is incorporated herein by this reference.

         C. Pro Se Party

         Plaintiff is proceeding pro se. The Court, therefore, reviews Plaintiff's pleadings and other papers liberally and holds them to a less stringent standard than those drafted by attorneys. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); see also Trackwell v. United States Gov't, 472 F.3d 1242, 1243 (10th Cir. 2007) (citation omitted). However, the Court should not be the pro se litigant's advocate, nor should the Court “supply additional factual allegations to round out [the pro se litigant's] complaint or construct a legal theory on [his or her] behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1175 (10th Cir. 1997) (citations omitted). Pro se litigants must follow the same procedural rules that govern other litigants. Nielson v. Price, 17 F.3d 1276, 1277 (10th Cir. 1994).

         III. ANALYSIS

         A. Plaintiff's Objection is Untimely

         Defendants argue Plaintiff's Objection is untimely; therefore, the Magistrate Judge's Recommendation should be ...