United States District Court, D. Oregon
Michael H. Simon United States District Judge
States Magistrate Judge Youlee You issued Findings and
Recommendation in this case on July 27, 2017. ECF 63. Judge
You recommended that Plaintiff's motion for partial
summary judgment be denied and Defendants' motion for
summary judgment be granted.
the Federal Magistrates Act (“Act”), the Court
may “accept, reject, or modify, in whole or in part,
the findings or recommendations made by the
magistrate.” 28 U.S.C. § 636(b)(1). If a party
files objections to a magistrate's findings and
recommendations, “the court shall make a de novo
determination of those portions of the report or specified
proposed findings or recommendations to which objection is
made.” Id.; Fed.R.Civ.P. 72(b)(3).
timely filed an objection (ECF 70), to which Defendants
responded. ECF 71. Plaintiff argues that the several-week
delays between his complaints of pain, dental appointments,
and four tooth extractions over roughly three months was
sufficient to establish that the individual Defendants
violated Plaintiff's Eighth Amendment rights. Plaintiff
also argues that Judge You failed to account for Multnomah
County's purported lack of policies for timely treating
fractured teeth. Finally, Plaintiff argues that his tooth
pain was sufficiently severe that the delays in treatment
constituted intentional infliction of emotional distress and
medical negligence and that Judge You erred in characterizing
Plaintiff's tooth extractions as routine.
Court has reviewed de novo the portions of Judge
You's Findings and Recommendation to which Plaintiff has
objected. Plaintiff argues that he “presented with
swelling, severe pain, infections and an abscess
necessitating antibiotics for nearly six weeks.” ECF 71
at 6. The record, however, does not support these assertions.
According to Plaintiff's medical record, the only
swelling that nurses observed before the extraction of
Plaintiff's wisdom teeth was “moderate swelling at
wisdom teeth sites” on November 16, 2012. ECF 49 at
103. During later check-ups, nurses observed some irritation
on November 24, 2012, ECF 49 at 95, and gum sensitivity but
no swelling or “redness, puss or exudate” in his
mouth on November 27, 2012 ECF 49 at 93. It was not until
January 14, 2013, four days after plaintiff's wisdom
teeth were extracted, that Plaintiff presented with
“mild facial swelling.” ECF 49 at 65. Dr.
Nations, Plaintiff's treating dentist, prescribed
Plaintiff with penicillin that day and diagnosed him with
possible alveolar osteitis, also known as dry socket, the
following day. ECF 49 at 63. At that same appointment, Dr.
Nations observed that Plaintiff's wisdom tooth extraction
sites were healing normally, with no signs of infection.
Id. Viewing these facts in the light most favorable
to Plaintiff, they do not support a finding that Defendants
were deliberately indifferent to Plaintiff's dental pain
and medical needs. Nor do they support a finding of medical
negligence or intentional infliction of emotional distress.
also argues that Judge You did not address Multnomah
County's lack of policies for the timely treatment of
medical and dental emergencies. The absence of a dental
emergency policy, standing alone, is not sufficient to
establish the presence of an unconstitutional “custom
or usage” with the force of law, Monell v.
Dep't of Soc. Servs., 436 U.S. 658, 691 (1978).
Plaintiffs must establish actual unconstitutional
“practices of sufficient duration, frequency and
consistency that the conduct has become a traditional method
of carrying out policy.” Trevino v. Gates, 99
F.3d 911, 918 (9th Cir. 1996). As explained above, Plaintiff
has not established any instances of unconstitutional
activity by the Defendants. He has thus submitted no
evidence, other than the absence of a formal dental emergency
policy, of a custom of deliberate indifference toward
inmates' medical needs. The Court agrees with Judge
You's findings and ADOPTS these portions of the Findings
those portions of a magistrate's findings and
recommendations to which neither party has objected, the Act
does not prescribe any standard of review. See Thomas v.
Arn, 474 U.S. 140, 152 (1985) (“There is no
indication that Congress, in enacting [the Act], intended to
require a district judge to review a magistrate's report
to which no objections are filed.”); United States.
v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en
banc) (holding that the court must review de novo
magistrate's findings and recommendations if objection is
made, “but not otherwise”). Although in the
absence of objections no review is required, the Magistrates
Act “does not preclude further review by the district
judge sua sponte . . . under a de novo or
any other standard.” Thomas, 474 U.S. at 154.
Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b)
recommend that “[w]hen no timely objection is filed,
” the Court review the magistrate's recommendations
for “clear error on the face of the record.” For
those portions of Judge You's Findings and Recommendation
to which neither party has objected, this Court follows the
recommendation of the Advisory Committee and reviews those
matters for clear error on the face of the record. No such
error is apparent.
Court ADOPTS Judge You's Findings and
Recommendation, ECF 63. Plaintiff's Motion for Partial
Summary Judgment (ECF 38) is DENIED.
Defendants' Motion for Summary Judgment (ECF 37) is