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Simmons v. Nalley

September 29, 2009


The opinion of the court was delivered by: Scullin, Senior Judge



Currently before the Court are Plaintiff's objections to Magistrate Judge Treece's August 17, 2009 Report-Recommendation and Order, in which he recommended that the Court grant Defendants' motion for summary judgment.


Plaintiff brought this civil rights action, pursuant to Bivens v. Six Unknown Names Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971), alleging that (1) Defendants Nalley and Drew violated his Eighth Amendment rights by deliberately failing to enforce Bureau of Prisons ("BOP") policy regarding smoking inside prisons and thereby exposing him to abnormally high levels of environmental tobacco smoke ("ETS") and causing him physical injury and (2) Defendants Snyder and Salamy retaliated against him for his efforts to protect his health by repeatedly assigning him to cells primarily housing smokers and punishing him with extended stays in segregated confinement. See Third Amended Complaint at 9-10.

Defendants moved for summary judgment, see Dkt. No. 107; and Plaintiff opposed that motion, see Dkt. No. 110.*fn1 In a Report-Recommendation and Order dated August 17, 2009, Magistrate Judge Treece recommended that the Court grant Defendants' motion. See Dkt. No. 112. Plaintiff filed timely objections to that recommendation. See Dkt. No. 113.


A. Standard of review

In reviewing a magistrate judge's report-recommendation, the district court may decide to accept, reject or modify those recommendations. See 28 U.S.C. § 636(b)(1). The court conducts a de novo review of the portions of the magistrate judge's recommendations to which a party objects. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). De novo review is not required, however, if a party fails to file specific objections. See Wilds v. United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (noting that where "no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record"). Nor is a court required to conduct de novo review where the parties' objections to the magistrate judge's recommendation repeat the arguments that the parties made in the original pleadings. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted). Finally, even if the parties file no objections, the court must ensure that the face of the record contains no clear error. See Wilds, 262 F. Supp. 2d at 169 (quotation omitted).

B. Summary Judgment Standard

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted if "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). In determining whether a genuine issue of material fact exists, the court must resolve all ambiguities and draw all reasonable inferences against the moving party. However, when the moving party has met its initial burden of establishing the absence of any genuine issue of material fact, the nonmoving party must come forward with "specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e). Furthermore, when a plaintiff fails to respond to a defendant's factual assertions contained in its Statement of Material Facts, the court will accept as true the factual assertions contained in that Statement of Material Facts to the extent that those facts are supported by the evidence in the record.

C. Plaintiff's Eighth Amendment claim

The crux of Plaintiff's Eighth Amendment claim is that Defendants Drew and Nalley deliberated failed to enforce BOP's smoking policy, thereby exposing Plaintiff to abnormally high levels of ETS. See Third Amended Complaint at ¶ 43.

To establish an Eighth Amendment violation premised on the conditions of confinement, a plaintiff must show that the conditions were so serious that they constituted a denial of the "minimal civilized measure of life's necessities," and that the prison officials were deliberately indifferent to those needs. Wilson v. Seiter, 501 U.S. 294, 297-99 (1991) (citation omitted). In Helling v. McKinney, 509 U.S. 25 (1993), the Supreme Court held that this standard applies to Eighth Amendment claims premised on the risk of physical injury from exposure to second-hand smoke. In this context, a plaintiff must demonstrate exposure to levels of ETS that have caused or pose an unreasonable risk of causing serious damage to his health that is "so grave that it violates contemporary standards of decency to expose anyone unwillingly to such a risk." Id. at 36. Furthermore, in determining whether the ...

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