The Recommendation contains a detailed statement of the case, with which no 1

party has taken issue. In light of plaintiff’s pro se status, the Court reviews his filings

liberally. See Haines v. Kerner, 404 U.S. 519, 520 (1972); Hall v. Bellmon, 935 F.2d

1106, 1110 n. 3 (10th Cir. 1991).

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Judge Philip A. Brimmer

Civil Action No. 11-cv-02457-PAB-KMT

ASHANTI BLACK,

Plaintiff, 

v.

DR. JAMES THALKEN, DDS #15173

SHARON PHILLIP, Nurse Practitioner, and

DR. WORMER, Physician, 

Defendants.

ORDER

This matter is before the Court on the Recommendation of United States

Magistrate Judge (the “Recommendation”) [Docket No. 73] filed on February 8, 2013. 

The magistrate judge recommends that the Court grant the Motion to Dismiss [Docket

No. 32] filed by defendants Sharon Phillip and Dr. Wormer as well as the Motion to

Dismiss [Docket No. 63] filed by defendant Dr. James Thalken. On March 6, 2013,

plaintiff Ashanti Black filed timely objections [Docket No. 76] to the Recommendation.

1

Therefore, the Court will “determine de novo any part of the magistrate judge’s

disposition that has been properly objected to.” Fed. R. Civ. P. 72(b)(3).

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To the extent Mr. Black disagrees with the magistrate judge’s denial of his 2

request for appointment of counsel [Docket No. 69], that decision was not objected to

2

Mr. Black objects to the dismissal of his complaint, but does not provide specific

objections to the Recommendation. Instead, Mr. Black argues that the

Recommendation’s findings suggest that his Motion for Appointment of Counsel

[Docket No. 67] should have been granted because he is “unknowledgeable, unskilled,

and incapable of applying the law to adequately present his case.” Docket No. 76 at 3. 

Mr. Black claims that the Recommendation’s findings do not suggest that he does not

have a viable claim, but rather that he is not capable of presenting his claim. Id. 

The Tenth Circuit has held that “objections to [a] magistrate judge’s report and

recommendation must be both timely and specific to preserve an issue for de novo

review by the district court.” United States v. 2121 East 30th St., 73 F.3d 1057, 1060

(10th Cir. 1996). This rule, however, does not apply when (1) a pro se litigant has not

been informed of the time period for objecting or when (2) the “interests of justice”

require review. Morales-Fernandez v. INS, 418 F.3d 1116, 1119 (10th Cir. 2005)

(citation omitted).

Neither exception applies here. The Recommendation advised plaintiff of the

deadline to respond and the need to file “specific” objections. Docket No. 73 at 13. In

addition, plaintiff does not address the deficiencies identified in the Recommendation.

See 2121 East 30th St., 73 F.3d at 1060 (“only an objection that is sufficiently specific

to focus the district court's attention on the factual and legal issues that are truly in

dispute will advance the policies” underlying the firm waiver rule). As such, his

objections are not entitled to an interests of justice exception. 

2

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and therefore is not properly before this Court. See 28 U.S.C. § 636(b)(1)(A) (noting

that district court judges can review magistrate judge’s non-dispositive orders under a

“clearly erroneous or contrary to law” standard); Fed. R. Civ. P. 72(a) (noting that a

party may file objections to a non-dispositive magistrate judge’s order within 14 days

after being served with a copy). In any event, the Court finds that the magistrate judge

did not commit clear error when she denied plaintiff’s request for appointment of

counsel. See Ocelot Oil Corp. v. Sparrow Indus., 847 F.2d 1458, 1464 (10th Cir. 1988) 

(noting that a district court must affirm a Magistrate Judge’s decision unless “‘on the

entire evidence[, the district court] is left with the definite and firm conviction that a

mistake has been committed’”).

The Court notes that plaintiff does not allege that Dr. Thalken provided

3

continuing post-surgery care, but only that the performance of the surgery was

deficient. See, e.g., Oxendine v. Kaplan, 241 F.3d 1272, 1279 (10th Cir. 2001) (holding

that a prisoner had stated a valid Eighth Amendment claim where the complaint alleged

that the prison doctor was unqualified to perform finger reattachment surgery and the

doctor provided follow-up care but failed to seek specialized medical assistance). 

3

The Recommendation concluded that Mr. Black did not allege sufficient facts to

establish that Dr. Thalken violated his Eighth Amendment rights. Docket No. 73 at 9-

10. The Recommendation determined that Mr. Black’s allegations with regard to his

dental surgery did not rise above the level of negligence and, therefore, were

insufficient to prove deliberate indifference. Id. Additionally, the Recommendation

found that Mr. Black’s allegations with respect to the proper course of treatment did not

raise a viable Eighth Amendment claim because disagreement with a doctor’s chosen

course of treatment does not support a claim for cruel and unusual punishment. Id. 

The Court finds no error with this aspect of the Recommendation. See, e.g., Self v. 3

Crum, 439 F.3d 1227, 1233 (10th Cir. 2006) (noting that negligent medical care, even

constituting medical malpractice, does not give rise to an Eighth Amendment violation);

Green v. Branson, 108 F.3d 1296, 1303 (10th Cir. 1997) (finding that a disagreement

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4

with a prison official’s medical judgment does not constitute an Eighth Amendment

violation).

With regard to Ms. Phillip and Dr. Wormer, the Recommendation found that a

temporary delay in providing Mr. Black with treatment was insufficient to state a viable

Eighth Amendment claim. Docket No. 73 at 11. Additionally, the Recommendation

concluded that Mr. Black had failed to allege any harm as a result of the delayed

treatment. Id. The Court finds no error with this aspect of the Recommendation. See,

e.g., Hunt. v. Uphoff, 199 F.3d 1220, 1224 (10th Cir. 1999) (“Delays [in providing

medical care] that courts have found to violate the Eighth Amendment have frequently

involved life-threatening situations and instances in which it is apparent that delay

would exacerbate the prisoner’s medical problems”).

Given that plaintiff does not allege sufficient facts to raise an Eighth Amendment

claim, it is unnecessary for the Court to determine whether defendants are entitled to

qualified immunity. Dubbs v. Head Start, Inc., 336 F.3d 1194, 1217 n. 15 (10th Cir.

2003) (upholding district court’s ruling and finding that there was no need to reach the

issue of qualified immunity because the defendants were objectively reasonable);

Schnebelen v. Porter, 434 F. App’x 765, 766 (10th Cir. 2011) (same).

Accordingly, the Court will dismiss Mr. Black’s claims against Dr. Thalken, Ms.

Phillip, and Dr. Wormer for failure to state a claim upon which relief may be granted.

For the foregoing reasons, it is 

ORDERED that the Recommendation of United States Magistrate Judge [Docket

No. 73] is ACCEPTED. It is further

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5

ORDERED that Defendants Phillip and Dr. Wormer’s Motion to Dismiss [Docket

No. 32] is GRANTED. It is further

ORDERED that Defendant Dr. Thalken’s Motion to Dismiss [Docket No. 63] is

GRANTED. It is further 

ORDERED that the Court certifies, pursuant to 28 U.S.C. § 1915(a)(3), that any

appeal from this order would not be taken in good faith and therefore in forma pauperis

status will be denied for the purpose of appeal. See Coppedge v. United States, 369

U.S. 438 (1962). If Mr. Black files a notice of appeal, he also must pay the full $455.00

appellate filing fee or file a motion to proceed in forma pauperis in the United States

Court of Appeals for the Tenth Circuit within thirty days in accordance with Fed. R. App.

P. 24. It is further

ORDERED that this case is closed in its entirety. 

DATED March 8, 2013.

BY THE COURT:

 s/Philip A. Brimmer 

PHILIP A. BRIMMER

United States District Judge

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