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John C. Kehoe v. Pennsylvania Department of Corrections

July 21, 2011

JOHN C. KEHOE, PLAINTIFF,
v.
PENNSYLVANIA DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hon. John E. Jones III Hon. Malachy E. Mannion

MEMORANDUM

THE BACKGROUND OF THIS MEMORANDUM IS AS FOLLOWS:

This matter is before the Court on the Report and Recommendation ("R&R") of Magistrate Judge Malachy E. Mannion (Doc.41), filed on July 1, 2011 which recommends that we grant the Defendants' Motion for Summary Judgment (Doc. 30) and close this case. Plaintiff John C. Kehoe ("Plaintiff" or "Kehoe") filed objections to the R&R (Doc. 42) on July 13, 2011. Accordingly, this matter is ripe for disposition. For the reasons set forth below, the Court will adopt the Magistrate Judge's R&R in its entirety and close this case.

I. PROCEDURAL BACKGROUND

Plaintiff, an inmate*fn1 currently confined at the State Correctional Institution, Huntingdon, Pennsylvania filed, pro se, the instant civil rights action pursuant to

42 U.S.C. § 1983 on June 1, 2010. (Doc. 1). Magistrate Judge Mannion aptly summarized the Plaintiff's claim as follows:

In his complaint, the plaintiff alleges that prior to entering the state prison system he did not smoke. He alleges that when he became incarcerated in the 1970's it was the practice of the prison system to provide inmates with free tobacco and rolling papers, which resulted in him becoming addicted to smoking tobacco. At one point, the plaintiff alleges that he smoked 1 1/2 packs of cigarettes or more per day.

According to the plaintiff, the state correctional institutions encouraged, and continue to encourage, prisoners to smoke ". . . as a means of relieving stress and boredom . . ." Through the prison commissaries, the plaintiff alleges that all forms of tobacco products are aggressively marketed to the prisoners.

Although he has attempted to quit smoking "cold turkey," the plaintiff alleges that he has failed. In his attempts to quit smoking, the plaintiff alleges that he has requested nicotine patches from the Department of Corrections ("DOC"), at various institutions, but has been informed that these patches must be purchased at a cost which the plaintiff is unable to pay.

As a result of his addiction to tobacco, the plaintiff alleges that he suffers various physical ailments, including shortness of breath, dizziness and chest pain, which render him unable to work when he is released from prison. He alleges that he has such severe breathing problems that he is only able to work a "token job" in prison industries wiping down bars with a wet rag.

(Doc. 41, pp. 4-5). Based on these allegations, Plaintiff seeks monetary damages and injunctive relief.

II. STANDARDS OF REVIEW

A. Review of Magistrate Judge's R&R

When objections are filed to the report of a magistrate judge, the district court makes a de novo determination of those portions of the report or specified proposed findings or recommendations to which objections are made. 28 U.S.C. § 636(b)(1); United States v. Raddatz, 447 U.S. 667, 674-75 (1980). The court may accept, reject, or modify, in whole or in part, the magistrate judge's findings or recommendations. Id. Although the standard of review is de novo, 28 U.S.C. ยง 636(b)(1) permits whatever reliance the district court, in the exercise of sound discretion, chooses to place on a magistrate judge's ...


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