Opinion
9:06-CV-1165
12-30-2014
MALIK AZ' RAEL MOSBY, Plaintiff, v. DR. MARSHALL TRABOUT, et al. Defendants.
APPEARANCES: MALIK AZ' RAEL MOSBY Plaintiff, Pro Se HARRIS, BEACH Russel E. Maines, Esq., of counsel P.O. Box 580 119 East Seneca Street Ithaca, New York 14851-0580 Attorney for Defendant Dr. Marshall Trabout HON. JONATHAN WOOD, Tompkins County Attorney 125 East Court Street Tompkins County Office Building Ithaca, New York 14850 Attorney for Remaining Defendants
APPEARANCES: MALIK AZ' RAEL MOSBY
Plaintiff, Pro Se
HARRIS, BEACH
Russel E. Maines, Esq., of counsel
P.O. Box 580
119 East Seneca Street
Ithaca, New York 14851-0580
Attorney for Defendant Dr. Marshall Trabout
HON. JONATHAN WOOD, Tompkins County Attorney
125 East Court Street
Tompkins County Office Building
Ithaca, New York 14850
Attorney for Remaining Defendants
Hon. Norman A. Mordue, Senior U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge Terèse Wiley Dancks issued a Report and Recommendation filed November 7, 2014 (Dkt. No. 168) recommending that the Court deny plaintiff's motion (Dkt. No. 139) for an order granting discovery and staying the action to enable plaintiff to pursue discovery against Dr. Trabout; grant defendant Dr. Trabout's motion for summary judgment (Dkt. No. 130); and deny plaintiff's motion (Dkt. No. 161) to vacate the prior order granting summary judgment in favor of former defendant Dr. Bezerganian. Plaintiff objects (Dkt. No. 169) to Magistrate Judge Dancks's recommendations. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court reviews the Report and Recommendation de novo.
On de novo review of the record, including plaintiff's objection to the Report and Recommendation, the Court denies plaintiff's request for an opportunity for discovery to oppose Dr. Trabout's summary judgment motion, see Fed. R. Civ. P. 56(d), on the ground that the request is "based on speculation as to what potentially could be discovered." National Union Fire Ins. Co. v. Stroh Cos., 265 F.3d 97, 117 (2d Cir. 2001) (citation and quotation marks omitted). Further, on de novo review, the Court agrees with Magistrate Judge Dancks that Dr. Trabout has demonstrated that he is entitled to summary judgment dismissing the claims against him on the ground that he was not deliberately indifferent to plaintiff's medical needs. Neither plaintiff's opposition nor his objection raise a material question of fact. Finally, on de novo review, the Court agrees that plaintiff's motion to vacate the order granting summary judgment in favor of former defendant Dr. Bezerganian lacks merit. The Court accepts the Report and Recommendation in its entirety.
It is therefore
ORDERED that the Report and Recommendation (Dkt. No. 168) is accepted; and it is further
ORDERED that plaintiff's motion (Dkt. No. 139) for an order granting discovery and staying the action is denied; and it is further
ORDERED that Dr. Trabout's motion for summary judgment (Dkt. No. 130) is granted; and it is further
ORDERED that plaintiff's motion (Dkt. No. 161) to vacate the prior order granting summary judgment in favor of former defendant Dr. Bezerganian is denied; and it is further
ORDERED that the case is closed; and it is further
ORDERED that the Clerk of the Court is directed to serve copies of this Memorandum-Decision and Order in accordance with the Local Rules of the Northern District of New York.
IT IS SO ORDERED.
DATED: December 30, 2014
Syracuse, New York
/s/_________
Norman A. Mordue
Senior U.S. District Judge