Opinion
Civil Action No. 04-cv-01497-WYD-MJW.
November 14, 2005
ORDER AFFIRMING AND ADOPTING UNITED STATES MAGISTRATE JUDGE'S RECOMMENDATION
THIS MATTER is before the Court in connection with Defendant Dr. Gilbert's Motion to Dismiss Plaintiff's Prisoner Complaint, filed on July 20, 2005. This motion was referred to Magistrate Judge Watanabe for a recommendation by Order of Reference dated October 7, 2004. A Recommendation of United States Magistrate Judge was issued on October 5, 2005, and is incorporated herein by reference. See 28 U.S.C. § 636(b)(1)(B); FED. R. CIV. P. 72(b).
Magistrate Judge Watanabe recommends therein that Defendant Dr. Gilbert's Motion to Dismiss be granted and that the case be dismissed with prejudice based on a failure to state a claim upon which relief can be granted. Recommendation at 8-9. Magistrate Judge Watanabe advised the parties that specific written objections were due within ten (10) days after being served with a copy of the Recommendation. Id. at 9. Despite this advisement, no objections were filed by any party to Magistrate Judge Watanabe's Recommendation.
No objections having been filed, I am vested with discretion to review the Recommendation "under any standard [I] deem appropriate." Summers v. Utah, 927 F.2d 1165, 1167 (10th Cir. 1991); see also Thomas v. Arn, 474 U.S. 140, 150 (1985) (stating that "[i]t does not appear that Congress intended to require district court review of a magistrate's factual of legal conclusions, under a de novo or any other standard, when neither party objects to those findings"). Nonetheless, though not required to do so, I review the Recommendation to "satisfy [my]self that there is no clear error on the face of the record." See FED. R. CIV. P. 72(b) Advisory Committee Notes.
Note, this standard of review is something less than a "clearly erroneous or contrary to law" standard of review, FED. R. CIV. P. 72(a), which in turn is less than a de novo review, FED. R. CIV. P. 72(b).
Magistrate Judge Watanabe correctly found that the claims against Defendant Dr. Gilbert must be dismissed because "the plaintiff can prove no set of facts which entitles him to relief." Recommendation at 8. Here, the claims arise from Plaintiff's dental troubles while incarcerated at Huerfano County Correctional Center (HCCC), and the facts indicate that Plaintiff simply disagreed with Defendant Dr. Gilbert about whether he should have had his cavity filled or a root canal rather than having his tooth extracted. See Pl.'s Compl. at 3. I agree with Magistrate Judge Watanabe that "[a] prisoner who merely disagrees with a diagnosis or a prescribed course of treatment does not state a constitutional violation." Recommendation at 8 (citing Olson v. Stotts, 9 F.3d 1475, 1477 (10th Cir. 1993)).
I also agree with Magistrate Judge Watanabe that Plaintiff failed to state an Eighth Amendment violation against Defendant Dr. Gilbert. Magistrate Judge Watanabe notes that nothing in the record indicates that there was medical or dental deprivation. Id. Rather, the HCCC's dental department provided Plaintiff several opportunities for examinations and follow-up appointments. Yet, Plaintiff did not go to all of his appointments. Id. Furthermore, despite being given the option to receive outside treatment for his dental needs, Plaintiff chose not to exercise that right. Id.
Having reviewed the Recommendation, I am satisfied that there is no clear error on the face of the record. I agree with Magistrate Judge Watanabe that the Motion to Dismiss should be granted because there is a failure to state a claim upon which relief can be granted. Accordingly, it is hereby
ORDERED that the Recommendation of United States Magistrate Judge entered October 5, 2005, is AFFIRMED and ADOPTED. In accordance therewith, it is
FURTHER ORDERED that Defendant Dr. Gilbert's Motion to Dismiss Plaintiff's Prisoner Complaint, filed July 20, 2005, is GRANTED.