IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
January 24, 2007
RONALD GOODE, PLAINTIFF :
JOHN NASH, DEFENDANT
The opinion of the court was delivered by: Judge Conner
AND NOW, this 23rd day of January, 2007, upon consideration of the report of the magistrate judge (Doc. 63), recommending that defendant's motion for summary judgment (Doc. 49) be granted, to which plaintiff has filed objections, and, following an independent review of the record, it appearing that the magistrate judge correctly determined that there was no genuine issue of material fact concerning plaintiff's unsupported allegations that defendant violated his Eighth Amendment rights by exposing him to environmental tobacco smoke ("ETS")*fn1 , that plaintiff failed to establish the objective and subjective prongs of the Helling test outlined by the United States Supreme Court*fn2 , see Helling v. McKinney, 509 U.S. 25, 35-36 (1993), that plaintiff did not demonstrate that he encountered any exposure to ETS that violates "[c]ontemporary standards of decency," see Atkinson v. Taylor, 316 F.3d 257, 262 (3d Cir. 2003) (describing the objective prong of the Helling test), and that defendant's implementation of a policy to separate nonsmoking inmates from smoking inmates to the most practical extent indicates that defendant was not deliberately indifferent to any serious risk, see Helling, 509 U.S. at 36-37 (elaborating on the subjective prong by stating that implementation of smoking policies will affect the determination of deliberate indifference), it is hereby ORDERED that:
1. The report and recommendation of the magistrate judge (Doc. 63) is ADOPTED.
2. Defendant's motion for summary judgment (Doc. 49) is GRANTED
3. The Clerk of Court is to enter JUDGMENT against plaintiff and in favor of defendant - John Nash.
4. The Clerk of Court is directed to CLOSE this case.
CHRISTOPHER C. CONNER United States District Judge