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Mosby v. Trabout

United States District Court, N.D. New York

December 30, 2014

MALIK AZ' RAEL MOSBY, Plaintiff,
v.
MARSHALL TRABOUT, et al., Defendants.

MALIK AZ' RAEL MOSBY, Plaintiff, Pro Se.

HARRIS, BEACH, Russel E. Maines, Esq., of counsel, Ithaca, New York, Attorney for Defendant Dr. Marshall Trabout.

HON. JONATHAN WOOD, Tompkins County Attorney, Tompkins County Office Building, Ithaca, New York, Attorney for Remaining Defendants.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

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, - (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.


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