United States District Court, D. Colorado
RAYMOND P. MOORE UNITED STATES DISTRICT JUDGE.
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.
The matters are ripe for resolution.
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.
Review of a Magistrate Judge's Report and
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.”).
Motion to Dismiss
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.
Pro Se Party
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.
Plaintiff's Objection is Untimely
argue Plaintiff's Objection is untimely; therefore, the
Magistrate Judge's Recommendation should be ...