Braxton v. Bruen

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

BENJAMIN BRAXTON, a/k/a Obed/Edom Braxton, 9:17-cv-1346 (BKS/ML) Plaintiff,

v.

KEVIN BRUEN, Deputy Commissioner of Counsel, et al.,

Defendants.

Appearances: Plaintiff pro se: Benjamin Braxton 16-A-2314 Clinton Correctional Facility P.O. Box 2000 Dannemora, NY 12929

For Defendants: Hon. Letitia James Joshua E. McMahon, Esq. New York State Attorney General The Capitol Albany, NY 12224 Hon. Brenda K. Sannes, United States District Judge: MEMORANDUM-DECISION AND ORDER Plaintiff Benjamin Braxton, a New York State inmate, commenced this civil rights action asserting claims under 42 U.S.C. § 1983 based on his alleged exposure to unreasonable levels of secondhand smoke during his incarceration at Clinton Correctional Facility. (Dkt. No. 42). On February 21, 2020, Defendants filed a motion for summary judgment. (Dkt. No. 80). Plaintiff has responded in opposition to the motion. (Dkt. Nos. 86, 87). This matter was referred to United States Magistrate Judge Miroslav Lovric who, on August 24, 2020, issued a Report- Recommendation recommending that Defendants’ motion be denied. (Dkt. No. 88). Magistrate Judge Lovric advised the parties that, under 28 U.S.C. § 636(b)(1), they had fourteen days within which to file written objections to the report, and that the failure to object to the report within fourteen days would preclude appellate review. (Dkt. No. 88, at 31). No objections have been filed. As no objections to the Report-Recommendation have been filed, and the time for filing objections has expired, the Court reviews the Report- Recommendation for clear error. See Petersen v. Astrue, 2 F. Supp. 3d 223, 229 (N.D.N.Y. 2012) (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes to 1983 Amendment). Having reviewed the Report-Recommendation for clear error and found none, the Court adopts the Report- Recommendation in its entirety. For these reasons, it is ORDERED that the Report-Recommendation (Dkt. No. 88) is ADOPTED in its entirety; and it is further ORDERED that Defendants’ motion for summary judgment (Dkt. No. 80) is DENIED; and it is further ORDERED that the Clerk serve a copy of this Order upon the parties in accordance with the Local Rules. IT IS SO ORDERED. Dated: September 25, 2020 Syracuse, New York Aer of A kc nannies BrendaK.Sannes U.S. District Judge