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Antonio Colon v. D.B. Drew

February 25, 2011




This matter comes before the Court following a Report-Recommendation filed on January 21, 2011 by the Honorable David E. Peebles, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3 of the Northern District of New York. Report-Rec. (Dkt. No. 120). Therein, the Magistrate Judge recommends that a third Motion for summary judgment and dismissal of Plaintiff's action (Dkt. No. 113) be denied in all respects. On February 3, 2011, Defendant D.B. Drew ("Defendant") filed objections ("Objections") to that Report-Recommendation. Dkt. No. 121.


A. Standard of Review

This Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). "A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id. Where, however, an objecting "'party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error.'" Farid v.Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007) (citations and quotations omitted)).

Plaintiff brings this action alleging that Defendant violated his rights under the Eighth Amendment by failing to enforce no-smoking policies at the Ray Brook Federal Correctional Institution ("FCI Ray Brook"), thereby subjugating Plaintiff, an alleged asthmatic, to the deleterious effects of environmental tobacco smoke ("ETS"), or second-hand smoke.*fn1 As with any Eighth Amendment failure to protect claim alleging past injury as a result of prison conditions, Plaintiff must demonstrate that, objectively, the complained of condition is sufficiently serious to warrant protection, and that, subjectively, the prison official acted with "deliberate indifference" to inmate health or safety.See Wilson v. Seiter, 501 U.S. 294 (1991); see also Farmer v. Brennan, 511 U.S. 825, 834 (1994). Defendant seeks summary judgment dismissing Plaintiff's action.

Summary judgment is appropriate only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P.56(c).

"[T]he plain language of Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which the party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986) ("summary judgment will not lie if the dispute about a material fact is "genuine," that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party"). When considering a motion for summary judgment, a court must construe the evidence in the light most favorable to the non-moving party and to draw all reasonable inferences in that party's favor. See Liberty Lobby, 477 U.S. at 255; Trammell v. Keane, 338 F.3d 155, 161 (2d Cir. 2003).

B. The Objective Prong

Looking first to the objective prong, Magistrate Judge Peebles found that "a reasonable factfinder could conclude that plaintiff's exposure to excessive quantities of ETS at Ray Brook caused or aggravated an existing medical condition that is sufficiently serious for purposes of the objective prong of this Eighth Amendment claim." Report Rec. at 22. He reached this finding despite the fact that Plaintiff offered no medical expert,*fn2 and Defendant offered the opinions of an expert witness, Dr. Robert W. Irwin, a pulmonologist, who upon review of Plaintiff's medical records, opined that exposure to ETS cannot cause asthma, that Plaintiff's symptoms are inconsistent with a diagnosis of asthma, and that prison medical staff incorrectly diagnosed Plaintiff.

Magistrate Judge Peebles rejected Defendant's argument that the uncontradicted opinions of their expert necessitated summary judgment. He did so relying, first, on the prison medical records that Plaintiff has submitted, which date back to April 10, 2003 and evince Plaintiff's being treated for respiratory and other conditions which he attributes to exposure to second-hand smoke. Those records include documentation of: medical staff at FCI Raybrook referencing a diagnosis of asthma; Plaintiff's being placed in a pulmonary clinic for purposes of monitoring his asthma condition;

Plaintiff's medication regime for the treatment of his asthma condition; and an incident in which Plaintiff was taken to a local hospital where he received a diagnosis of chest pain/asthma. See Report-Rec. at 4-5, 20-21. The Magistrate Judge states,

Defendant seems to suggest, however, that in light of Dr. Irwin's opinion that plaintiff was misdiagnosed, the court should simply overlook the documented facts that over a substantial period of time plaintiff's asthma condition was monitored by the pulmonary clinic at FCI Ray Brook and treated with two separate inhaler prescriptions. These facts, which seemingly contradict Dr. Irwin's opinion, plainly present an issue of fact that can only be resolved at trial.

Id. at 21.On this point, the Magistrate Judge notes that the Second Circuit has already found that Plaintiff's allegations, including that he was housed in poorly ventilated areas with inmates, many of whom smoked one or more packs of cigarettes daily, could potentially satisfy the objective requirement prong of the Eighth Amendment test. Id. at 22 n.8; see Drew v. Colon, 335 Fed. App'x 86 (2d Cir. 2009) (vacating ...

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