McDay v. Bushey et al

Filing 65

ORDER: ORDERED that the Report-Recommendation (Dkt. No. 61 ) is ADOPTED in its entirety. ORDERED that defendants' motion for partial summary judgment (Dkt. No. 49 ), is GRANTED. ORDERED that the claims asserted against defendants Patricia Mendofik and Superintendent T. LaValley are DISMISSED. ORDERED that this case is now deemed trial ready and a trial scheduling order will issue in due course. Signed by Senior Judge Gary L. Sharpe on 11/9/16. (served on plaintiff by regular mail) (alh, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
KEITH MCDAY,
Plaintiff,

9:14-cv-997
(GLS/ATB)

v.
CORRECTION OFFICER D.
BUSHEY et al.,
Defendants.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Keith McDay
Pro Se
04-A-4724
Great Meadow Correctional Facility
Box 51
Comstock, NY 12821
FOR THE DEFENDANTS:
Hon. Eric T. Schneiderman
New York State Attorney General
The Capitol
Albany, NY 12224

DENISE P. BUCKLEY
Assistant Attorney General

Gary L. Sharpe
Senior District Judge
ORDER
The above-captioned matter comes to this court following a ReportRecommendation (R&R) by Magistrate Judge Andrew T. Baxter, duly filed

on August 8, 2016. (Dkt. No. 61.) Following fourteen days from the
service thereof, the Clerk has sent the file, including any and all objections
filed by the parties herein.
Plaintiff pro se Keith McDay filed objections to the R&R. (Dkt. No.
64.) Throughout his objections, McDay complains that summary judgment
was inappropriate because, in his view, he was denied discovery. (Id.)1
The objections are otherwise too conclusory to trigger de novo review or
merely a rehashing or arguments he raised in opposition to defendants’
motion. (Compare id., with Dkt. No. 59, Attach. 2 at 2-4.) Because the
R&R is free from clear error, see Almonte v. N.Y.S. Div. of Parole, No. Civ.
904CV484, 2006 WL 149049, at *6 (N.D.N.Y. Jan. 18, 2006), it is adopted
in its entirety.
Accordingly, it is hereby
ORDERED that the Report-Recommendation (Dkt. No. 61) is
ADOPTED in its entirety; and it is further
ORDERED that defendants’ motion for partial summary judgment

1

While McDay specifically objects that the R&R “fail[ed] to address” his argument that
he was “unable to complete discovery,” (Dkt. No. 64 at 1), he is simply incorrect. As the R&R
notes, the discovery-related issues were raised and addressed before the summary judgment
motion was filed. (Dkt. No. 61 at 9 n.3.)

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(Dkt. No. 49), is GRANTED; and it is further
ORDERED that the claims asserted against defendants Patricia
Mendofik and Superintendent T. LaValley are DISMISSED; and it is further
ORDERED that this case is now deemed trial ready and a trial
scheduling order will issue in due course; and it is further
ORDERED that the Clerk shall provide a copy of this Order to the
parties in accordance with this court’s Local Rules.
IT IS SO ORDERED.

November 9, 2016
Albany, New York

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