Klein v. Fischer et al

Filing 91

ORDER adopting the 89 Report and Recommendations in its entirety; denying Plaintiff's 81 Motion for Summary Judgment; granting Defendants' 85 Motion for Summary Judgment. Signed by Judge Brenda K. Sannes on 9/2/15 (served on plaintiff via regular and certified mail). (rjb, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
ROBERT KLEIN,
Plaintiff,
v.

9:13-CV-0437 (BKS/TWD)

BRIAN FISCHER, Commissioner,
D.O.C.S., et al.,
Defendants.
___________________________________________
APPEARANCES:
Robert Klein, Plaintiff Pro Se
Southbury, CT 06488
Hon. Eric T. Schneiderman
New York State Attorney General
Colleen D. Galligan, Esq., Assistant Attorney General
The Capitol
Albany, NY 12224
For Defendants
Hon. Brenda K. Sannes, United States District Court Judge
DECISION AND ORDER
Plaintiff Robert Klein, a former New York State inmate, commenced this proceeding
under 42 U.S.C. § 1983 alleging violations of the Eighth Amendment, First Amendment and
Fourteenth Amendment arising out of his alleged exposure to environmental tobacco smoke
(ETS) during his incarceration at Altona Correctional Facility, and the defendants’ alleged
retaliation for grievances he filed regarding ETS. Dkt. Nos. 1, 5, 37, 49, 72. Plaintiff filed a
motion for summary judgment on February 3, 2015, Dkt. No. 81, and defendants filed a crossmotion for summary judgment on March 13, 2015, Dkt. No. 85. The motions were referred to

United States Magistrate Judge Thérèse Wiley Dancks. On July 15, 2015, Magistrate Judge
Dancks issued an Order and Report-Recommendation, recommending that plaintiff’s motion for
summary judgment be denied and that defendants’ motion for summary judgment be granted.
Dkt. No. 89. Magistrate Judge Dancks advised the parties that they had fourteen days to file
written objections to the report and that the failure to object within fourteen days would preclude
appellate review. Dkt. No. 89, p. 52. Copies of the Order and Report-Recommendation were
mailed to plaintiff via certified and regular mail on July 15, 2015, and no objections to the
Report-Recommendation have been filed. Id. On August 27, 2015, the certified mailing was
returned to the Court with a notice that it had been “unclaimed.” Dkt. No. 90.
Since no objections to the Report-Recommendation have been filed, and the time for
filing objections has expired, the Court has reviewed the Report-Recommendation for clear error.
See Petersen v. Astrue, 2 F. Supp. 3d 223, 228-29 (N.D.N.Y. 2012); Fed. R. Civ. P. 72(b)
advisory committee’s note to the 1983 addition. Under this standard, “the court need only satisfy
itself that there is no clear error on the face of the record in order to accept the recommendation.”
Id. Having reviewed the Report-Recommendation and having found no clear error, it is hereby:
ORDERED that the Report-Recommendation (Dkt. No. 89) is ADOPTED in its entirety
for the reasons stated therein; and it is further
ORDERED that Plaintiff’s Motion for Summary Judgment (Dkt. No. 81) be DENIED
and Defendants’ Motion for Summary Judgment (Dkt. No. 85) be GRANTED; and it is further
ORDERED that plaintiff’s Complaint (Dkt. No. 72) is DISMISSED; and it is further
ORDERED that the Clerk of the Court is directed to close this case; and it is further

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ORDERED that the Clerk of the Court serve copies of this Decision and Order on the
parties.
IT IS SO ORDERED.
Dated: September 2, 2015

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