DAVID M. LAWSON, United States District Judge
Don J. Spicer-El, the plaintiff, has filed a lawsuit challenging the conditions of his confinement when he was incarcerated at the St. Louis Correctional Facility (SLCF) in St. Louis, Michigan. Spicer-El is presently confined at the Alger Maximum Correctional Facility in Munising, Michigan. He claims that while at SLCF, he was denied medical treatment and that he was denied yard privileges for out-of-cell exercise by the defendants, all in violation of the Eighth Amendment and 42 U.S.C. § 1983. Defendants Norwood, Martin, Renico, and Ball filed a motion for summary judgment. Thereafter, defendants Rivard and Murdock were allowed to join in the motion. The Magistrate Judge. pursuant to an Order of Reference and 28 U.S.C. § 636(b)(1)(B), filed a Report and Recommendation that the motion be granted. The defendant filed timely objections to the motion. and the Court has conducted a de novo review of the matter. The Court finds that the plaintiff's objections lack merit and the Report and Recommendation correctly states applicable law in light of the facts presented by the pleadings and the motion papers. The Court will therefore adopt the Magistrate Judge's recommendation and dismiss the case.
I.
The plaintiff alleges in his amended complaint that his constitutional rights were violated in two, separate incidents at the SLCF: he was denied medical treatment during a chronic asthma attack in his cell; and he was denied a seven-day break in his detention status while serving a combination of sanctions for various misconduct violations and out-of-cell exercise for more than thirty days in a row during this same period in violation of Michigan Department of Corrections (MDOC) policy.
The facts of the case are set forth by the Magistrate Judge in the Report and Recommendation in most respects. The plaintiff claims in his objections that the Magistrate Judge failed to take account of the plaintiff's "affidavit" which he filed in opposition to the defendant's motion. The document to which the plaintiff refers does not bear his signature nor was it signed under oath. Nonetheless the Court will consider it. In ¶¶ 4 and 5, the plaintiff states that on January 14, 2000 he activated the emergency call light in his cell because he was having an asthma attack. Twenty-five minutes later, defendant Murdock came to the cell, plaintiff explained his problem, and Murdock replied that if the plaintiff was alive he did not need a nurse. Murdock allegedly told the plaintiff that he "don't [sic] like smart niggers." The plaintiff states that a nurse never came to his cell, and that he "almost choked to death and passed out." Pl.'s Aff., ¶ 5.
As recited by the Magistrate Judge, Murdock filed an affidavit which, although silent concerning the alleged racial slur, confirms that a nurse did not attend to the plaintiff due to unavailability. However, Murdock alleges that he monitored the plaintiff, who was never in physical danger. The plaintiff does not allege in this Court that he suffered any lasting or serious effects as a result of the incident.
As to the issue concerning the plaintiff's loss of yard time, the defendants do not challenge the fact that the plaintiff was denied out-of-cell exercise privileges for more than thirty consecutive days. The defendants explain, and the plaintiff does not contradict, that because the plaintiff was housed in five different locations while serving several detentions for a variety of misconduct violations, the fact that the cumulative time without yard privileges exceeded thirty days was overlooked. However, when the plaintiff's status finally came to the attention of proper authorities, primarily by way of the plaintiff's grievances, the problem was rectified and the administrative procedures were adjusted to avoid a recurrence of this type of problem.
II.
The Magistrate Judge correctly articulated the standards to be applied when evaluating a motion for summary judgment. noting, appropriately, that the Court is obliged to view the evidence presented in the light most favorable to the party opposing the motion. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The Court is mindful of this requirement in conducting its de novo review. However, it is equally clearly established that the plaintiff in this case. as the non-moving party, must present affirmative evidence on material issues, that is, some documentation as described in Rule 56(c) beyond the pleadings alone, to defeat the defendants' motion. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). This is so because the defendants' motion is properly supported and persuasively demonstrates that the plaintiff is unable to meet his burden of proof. See Celotex, 477 U.S. at 326; Street v. J.C. Bradford Co., 886 F.2d 1472, 1479 (6th Cir. 1989). The Court agrees with the Magistrate Judge that the plaintiff has failed in his burden as to the claims against defendants Martin, Renico and Norwood. The plaintiff has failed to present evidence creating a question upon which reasonable minds might differ showing that these defendants either participated in a violation of the plaintiff's civil rights or knew of the violations and failed to prevent them. See Monell v. Dept. of Soc. Servs., 436 U.S. 658 (1978); Farmer v. Brennan, 511 U.S. 825 (1994).
Although the participation of defendants Ball, Rivard and Murdock in the alleged offending conduct is not seriously contested, the plaintiff has failed to establish a colorable claim that the Eighth Amendment was violated. The latest definitive pronouncement by the United States Court of Appeals for the Sixth Circuit on the requisite elements of a claim by a prisoner challenging conditions of confinement is Thaddeus-X v. Blatter, 175 F.3d 378 (6th Cir. 1999) (en banc). There, the Court explained that prisoner cases alleging violations of the Eighth Amendment generally fall into two categories: conditions of confinement and use of excessive force. Id. at 400-01. Both categories require proof of both an objective and a subjective component. the latter including "some mental element . . . attributed to the inflicting officer" when the pain caused by the state is not formally part of the penalty prescribed by statute or the sentencing judge. Id. at 401 (quoting Wilson v. Seiter, 501 U.S. 294, 300 (1991)).
In conditions of confinement cases, particularly those involving the denial of adequate medical care, the objective component is proved by demonstrating the infliction of "`unnecessary suffering [that] is inconsistent with contemporary standards of decency.'" Id. (quoting Estelle v. Gamble, 429 U.S. 97, 103 (1976)). Proof of the subjective component requires demonstration of a "wanton" state of mind. In prison condition cases, "wantonness entails `deliberate indifference.'" Id. at 402. Referring to Farmer v. Brennan, supra, the Thaddeus-X Court summarized:
finally,
Farmer more specifically defined the term "deliberate indifference" in the Eighth Amendment context. It is a subjective type of deliberate indifference, akin to criminal recklessness: Was
this individual prison official aware of the risk to the inmate's health and deliberately indifferent to it?
Farmer, 511 U.S. at 837, 844.
175 F.3d at 402 (emphasis in original).
Under the facts of this case, the Magistrate Judge correctly concluded that the plaintiff failed to present triable claims concerning the conditions of his confinement. He has failed to show that any of the defendants were deliberately indifferent to his medical needs. To the contrary, although no nurse attended to the plaintiff on January 14, 2000, it is uncontested that the plaintiff's condition was monitored, and, despite his own assessment of the near-serious nature of his medical condition (i.e., that he almost choked and passed out), there is no proof that medical treatment was deliberately withheld or that unnecessary suffering was brought about by the deliberate indifference of the prison staff to the plaintiff's medical needs.
Nor did the plaintiff establish that the denial of yard time while the plaintiff was serving his penalties for misconduct violations constituted deliberate indifference to his health or safety. The Magistrate Judge correctly described the applicable standard utilized in out-of-cell exercise cases, as summarized by the Court of Appeals in Rodgers v. Jabe, 43 F.3d 1082, 1088 (6th Cir. 1995). The plaintiff in this case failed to rebut the defendants' contention that the violation of the MDOC policy relating to prisoner exercise was inadvertent. Further, the conduct itself under the circumstances was not unconstitutional.
III.
Because the Magistrate Judge correctly set forth and applied the law relating to conditions of confinement prisoner cases, this Court finds that the conclusions set forth in the Report and Recommendation are correct.
Accordingly, it is ORDERED that the Magistrate Judge's Report and Recommendation [dkt #27] is ADOPTED.
It is further ORDERED that the defendants' Motion for Summary Judgment [dkt #s 15-1, 15-2 and 19] is GRANTED.
It is further ORDERED that the plaintiff's Amended complaint is DISMISSED with prejudice.