Gillespie v. Taylor et al

Filing 55

ORDER that 52 Report and Recommendations is adopted in its entirety. Signed by Judge Gary L. Sharpe on 9/24/09. (Attachments: # 1 report-recommendations of Magistrate Judge George H. Lowe) (nas)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________ ANTHONY GILLESPIE, Plaintiff, v. JUSTIN TAYLOR, et al., Defendants. _________________________________ APPEARANCES: FOR THE PLAINTIFF: Anthony Gillespie Pro Se 99-A-5737 Mid-State Correctional Facility P.O. Box 2500 Marcy, NY 13403 FOR DEFENDANTS: HON. ANDREW CUOMO New York Attorney General 615 Erie Boulevard West Suite 102 Syracuse, NY 13204-2455 Gary L. Sharpe U.S. District Judge CHRISTOPHER W. HALL, ESQ. Assistant Attorney General OF COUNSEL: No. 9:07-cv-00694 (GLS/GHL)

MEMORANDUM-DECISION AND ORDER I. Introduction The above-captioned matter comes to this court following a ReportRecommendation and Order (R&R) by Magistrate Judge George H. Lowe, filed August 17, 2009. (Dkt. No. 52.) The R&R1 recommended that defendants' motions for summary judgment be granted. Pending is Gillespie's objection to the R&R. (Dkt. No. 54.) For the reasons that follow, the R&R is adopted in its entirety. II. Background Anthony Gillespie, an inmate formerly housed at Gouverneur Correctional Facility, brings this action pursuant to 42 U.S.C. § 1983, alleging that defendants violated his Eighth Amendment rights when he was exposed to second-hand smoke, also known as environmental tobacco smoke (ETS), in the dormitory bathroom at the Gouverneur Correctional Facility. (See generally Compl., Dkt. No. 1.) Defendants moved for summary judgment arguing inter alia that Gillespie failed to state an Eighth Amendment claim. (See Defs' Mot. at 5-9, Dkt. No. 50:6.)

The Clerk is directed to append the R&R to this decision, and familiarity therewith is presumed.

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On August 17, 2009, Judge Lowe recommended that defendants' motion for summary judgment be granted. The court will now review the R&R and Gillespie's objections. III. Standard of Review Before entering final judgment, this court routinely reviews all reportrecommendations in cases it has referred to a magistrate judge. If a party has objected to specific elements of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. 04-cv-484, 2006 WL 149049, at *6-7 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an objection, or only a vague or general objection has been filed, this court reviews the magistrate judge's findings and recommendations for clear error. See id. IV. Discussion In the R&R, Judge Lowe examined Gillespie's Eighth Amendment exposure claim under both "present harm" and "future harm" analyses,2
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As Judge Lowe noted "Eighth Amendment jurisprudence on the subject of prison ETS claims distinguishes between claims of present harm from ETS exposure (such as where exposure to ETS creates or exacerbates a medical condition) and claims that ETS exposure will cause the prisoner harm in the future. Plaintiff appears to be asserting both types of ETS claims. . . . I will address these claims separately." (R&R at 11, Dkt. No. 52 (internal citations omitted).)

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finding the claim deficient under both. Under the "present harm" analysis, Gillespie could not show that he suffered a serious medical condition as a result of his exposure.3 Moreover, even if he could, "there is no evidence that Defendants were deliberately indifferent to [it]." (See R&R at 11-15, Dkt. No. 52.) Under the "future harm" analysis, Gillespie's claim failed to meet the objective element requirement, as the circumstances of his exposure did not amount to a violation of contemporary standards of decency. (See id. at 15-17.) Because Gillespie objects only generally to the R&R, the court will review each portion for clear error. Upon review for clear error, the court finds no error and adopts the R&R in its entirety. WHEREFORE, for the foregoing reasons, it is hereby ORDERED that Magistrate Judge Lowe's August 17, 2009 ReportRecommendation and Order is adopted in its entirety; and it is further ORDERED that the Clerk close this case; and it is further ORDERED that the Clerk provide copies of this MemorandumDecision and Order to the parties.

Gillespie's medical records indicate good health and show no evidence of ETS harm. (See R&R at 12-14, Dkt. No. 52.)

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IT IS SO ORDERED. Albany, New York September 24, 2009

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