The opinion of the court was delivered by: Hon. Norman A. Mordue, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
Plaintiff, an inmate in the custody of the New York State Department of Corrections and Community Supervision ("DOCCS"), brought this pro se action under 42 U.S.C. § 1983. In his second amended complaint, (Dkt. No. 42), stemming from incidents occurring in November 2006, he alleges that he was deprived of his civil rights by defendants' alleged actions, including deliberate indifference to his medical condition, retaliation, assault, failure to protect, and denial of due process.
Defendant Captain Phelix moves (Dkt. No. 44) to dismiss the claims against him. Plaintiff moves (Dkt. No. 65) for summary judgment in his favor on all claims. Upon referral pursuant to 28 U.S.C. § 636(b)(1)(B) and Local Rule 72.3(c), United States Magistrate Judge David E. Peebles issued a Report and Recommendation (Dkt. No 71) in which he recommends that the
Court grant Captain Phelix' dismissal motion and deny plaintiff's motion for summary judgment.
Plaintiff has submitted an objection (Dkt. No. 72). In view of plaintiff's objections, pursuant to 28 U.S.C. § 636(b)(1)(C), this Court conducts a de novo review. On de novo review this Court agrees with Magistrate Judge Peebles that the claims against Captain Phelix must be dismissed on the ground of issue preclusion arising from plaintiff's proceedings in state court.
Further, on de novo review, the Court concludes that plaintiff's motion for summary
judgment must be denied, because plaintiff has not demonstrated the absence of material questions of fact. Attached to plaintiff's objection is a supplemental affidavit by plaintiff, drafted on January 3, 2012, after he received the Report and Recommendation. While the Court in its discretion may consider such evidence, it declines to do so in this case, because there is no reason why plaintiff could not have included these allegations in his summary judgment motion.
Moreover, the supplemental affidavit merely elaborates on plaintiff's version of the events of November 10, 2006, particularly regarding the conduct of defendant Donna Pepin, and does not eliminate the contradictory factual material in the record. Therefore, even if the Court were to consider the affidavit on this motion, it would not reach a different result. The Court accepts the Report and Recommendation in its entirety.
It is therefore ORDERED that the Report and Recommendation is accepted; and it is further ORDERED that Captain Phelix' motion (Dkt. No. 44) is granted and the sixth and seventh causes of action in the second amended complaint and all claims against Captain Phelix are dismissed; and it is further
ORDERED that plaintiff's motion (Dkt. No. 65) for summary judgment is denied; 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.
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