Summary
rejecting Plaintiff's reliance on the Surgeon General's report to prove the objective prong of the Helling test because "in order to prevail upon a claim for exposure to ETS, a plaintiff must do more than merely set out that the exposure is adversely affecting his health. He must present evidence showing that he is being exposed to ETS at a level that creates an unreasonable risk of serious damage to his future health."
Summary of this case from McKee v. Dir., Fla. Civil Commitment Ctr.Opinion
1:05-CV-112 (WLS).
March 21, 2007
ORDER
Before the Court is a Report and Recommendation from United States Magistrate Judge Richard L. Hodge (Doc. 51) filed on March 8, 2007, recommending that Defendants' Motion for Summary Judgment (Doc. 21) be granted. Plaintiff filed a timely objection on March 13, 2007. (Doc. 52).
In the Report and Recommendation, it was found that Plaintiff bears the burden at trial of proving both the levels of environmental tobacco smoke ("ETS") to which he has been exposed and that such exposure created unreasonable risk of serious damage to his future health. (Doc. 51). It was further found that Plaintiff failed to present evidence which could be found to carry either burden of proof. Id. Noting that Defendants have correctly pointed out that Plaintiff, as non-moving party to this summary judgment motion, could not meet his burdens at trial, it was found that summary judgment was appropriate in favor of Defendants. Id. It is therefore recommended that Defendants' Motion for Summary Judgment (Doc. 51) be granted.
In his objection, Plaintiff purports to summarize Surgeon General reports on ETS and later the status of the law pertaining to the Americans with Disabilities Act ("ADA"). (Doc. 52). Nowhere in his filing does Plaintiff raise a cognizable objection to the Magistrate Judge's findings. See id. Plaintiff's filing is wholly without merit and is therefore overruled.
Upon full review and consideration upon the record, the Court finds that the Report and Recommendation (Doc. 51) should be, and hereby is, ACCEPTED, ADOPTED and made the Order of this Court for reason of the findings made and reasons stated therein, together with the findings made and conclusions reached herein. Accordingly, Defendants' Motion for Summary Judgment (Doc. 21) is GRANTED.
SO ORDERED.