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Excell v. Burge

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


January 21, 2009

MORTIMER EXCELL, PLAINTIFF,
v.
JOHN W. BURGE, SUPERINTENDENT; ET AL., DEFENDANTS.

The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

DECISION and ORDER

Currently before the Court in this pro se prisoner civil rights action is Plaintiff's motion for reconsideration of District Judge Lawrence E. Kahn's Decision and Order of September 25, 2008, approving and adopting Magistrate Judge Gustave J. DiBianco's Report-Recommendation of September 10, 2008. (Dkt. No. 60.) For the reasons set forth below, Plaintiff's motion is denied.

Plaintiff's motion is not a typical motion for reconsideration, which is subject to a somewhat rigid analysis.*fn1 Rather, liberally construed, Plaintiff's motion requests that the Court amend and/or supplement Judge Kahn's Decision and Order of September 25, 2008, because Plaintiff did not have an adequate opportunity to object to Magistrate Judge DiBianco's Report-Recommendation of September 10, 2008. (Docket Sheet Minute Entry for 11/04/2008; see also Dkt. No. 56.)*fn2 Plaintiff argues that he did not have such an opportunity because (between September 10, 2008, and September 25, 2008) he never received notice of Magistrate Judge DiBianco's Report-Recommendation. (Dkt. No. 56.) For these reasons, out of special solicitude to Plaintiff, the Court will treat his motion for reconsideration as having the legal effect of a timely Objection to Magistrate Judge DiBianco's Report-Recommendation of September 10, 2008.

Plaintiff's motion challenges only the portion of Magistrate Judge DiBianco's Report-Recommendation that recommended that the Court dismiss (and the portion of Judge Kahn's Decision and Order that did dismiss) Plaintiff's claims against Defendant R. Head. (Dkt. No. 60, at 2-4.)*fn3 Liberally construed, Plaintiff's motion papers assert two arguments in support of this request: (1) it would not be fair to dismiss Defendant Head from the case since Plaintiff will "need" to call Defendant Head as a witness at trial in order to elicit testimony from him regarding his personal knowledge (based on his role as a hearing officer) of the "ongoing [r]eligious discrimination" that Plaintiff experienced during the time period in question; and (2) Defendant Head was improperly dismissed from the case since he tried to "cover up" the actions of the other Defendants, and he threw Plaintiff out of a hearing on August 14, 2005 when Plaintiff attempted to assert his claims of retaliation and/or religious discrimination. (Id. at 2-4.)

Plaintiff's first argument is without merit. As an initial matter, whether or not a plaintiff will "need" to call an individual at trial has no bearing on whether or not that plaintiff has adduced admissible record evidence from which a rational fact-finder could conclude that the individual had violated any of the plaintiff's constitutional rights, sufficient to survive the individual's motion for summary judgment under Fed. R. Civ. P. 56. In any event, the Court notes that, under the circumstances, Plaintiff does not need Defendant Head to remain a party in this in order to call him as a witness at trial, for two reasons: (1) generally, a plaintiff has the right to request that the Court issue a subpoena compelling the attendance of a witness in a civil trial, pursuant to Fed. R. Civ. P. 45 (and 28 U.S.C. § 1821); and (2) here, it is very possible that Plaintiff will be appointed standby trial counsel who will help him to (among other things) subpoena trial witnesses. (See Dkt. No. 49, at 2 [Order filed March 3, 2008, denying Plf.'s Third Motion for Appointment of Counsel, indicating that the Court would consider another such motion by Plaintiff at "such time as a trial date has been scheduled for this action.") [emphasis removed].)*fn4

Plaintiff's second argument is also with merit. After carefully reviewing Defendants' motion papers (Dkt. No. 39), and Plaintiff's response papers (Dkt. No. 50), and after conducting a de novo review of the portions of Magistrate Judge DiBianco's Report-Recommendation that recommend the dismissal of Plaintiff's claims against Defendant Head (Dkt. No. 52, at 7-8, 11, 15, 18-21, 23-24), the Court can find no error in those portions of Magistrate Judge DiBianco's Report-Recommendation. It should be noted that, to the extent that Plaintiff is basing his second argument on evidence that was not submitted to Magistrate Judge DiBianco,*fn5 the Court rejects such evidence since Plaintiff has offered no justification for not submitting that evidence to Magistrate Judge DiBianco.*fn6 Finally, the Court denies any request that Plaintiff is making pursuant to Fed. R. Civ. P. 56(f) as untimely and without cause.*fn7

ACCORDINGLY, it is

ORDERED that Plaintiff's motion for reconsideration (Dkt. No. 60) is DENIED; and it is further

ORDERED that those portions of Magistrate Judge Gustave J. DiBianco's Report-Recommendation of September 10, 2008, that recommended the dismissal of Plaintiff's claims against Defendant Head (Dkt. No. 52, at 7-8, 11, 15, 18-21, 23-24) are APPROVED and ADOPTED in their entirety, based on a de novo review of those portions, for the reasons stated above in this Decision and Order; and its further

ORDERED that the remaining portions of Magistrate Judge DiBianco's Report-Recommendation (Dkt. No. 52) are APPROVED and ADOPTED in their entirety, based on a clear-error review of those portions, for the reasons stated in District Judge Lawrence E. Kahn's Decision and Order of September 25, 2008 (Dkt. No. 53).


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