Anson v. United States of America et al

Filing 46

ORDER adopting Report and Recommendation re 31 ; denying 44 Motion for emergency stay. Signed by Hon. Richard J. Arcara on 4/10/2009. (JMB)

UNITED STATES DISTRICT COURT W ESTERN DISTRICT OF NEW YORK

DONALD JAMES ANSON, Plaintiff, ORDER 07-CV-035A

v. UNITED STATES OF AMERICA, Defendant.

O n March 20, 2009, the plaintiff in this case, Donald James Anson, filed a m o tio n that he characterized as an "emergency motion for a temporary in ju n c tio n , " see Dkt. 41, wherein he sought an order from the Court enjoining his tra n s fe r from FCI Loretto in Pennsylvania (where he is currently housed) to this D is tric t. The plaintiff is being transferred to this District for the purpose of taking h is deposition in this action. On March 23, 2009, Magistrate Judge H. Kenneth S c h ro e d e r, Jr., to whom this case has been referred, issued an order denying the p la in tiff's motion for an emergency injunction. Plaintiff then filed a "motion to s u s p e n d any further action," which this Court now construes as an appeal of M a g istra te Judge Schroeder's March 23, 2009 order. Pursuant to 28 U.S.C. § 636(b)(1)(A), this Court "may reconsider any p re tria l matter under this [section] where it has been shown that the magistrate's o rd e r is clearly erroneous or contrary to law." The Court has reviewed plaintiff's

o b je c tio n s and Magistrate Judge Schroeder's March 23, 2009 order and finds that it is neither clearly erroneous nor contrary to law.1 Accordingly, the plaintiff's o b je c tio n s are denied, as is his motion for an emergency stay. Transfer of the p la in tiff for the purposes of taking his deposition may occur as scheduled.

SO ORDERED. s/ Richard J. Arcara HONORABLE RICHARD J. ARCARA CHIEF JUDGE UNITED STATES DISTRICT COURT DATED: April 10, 2009

Plaintiff characterizes his motion as a request for injunctive relief. Ordinarily, a Magistrate Judge's decision relating to injunctive relief is treated as a recommendation that is subject to de novo review. In this case, the Court finds that the relief being sought by the plaintiff is more properly characterized as a request for non-dispositive relief relating to discovery, which is subject to a "clearly erroneous or contrary to law" standard of review. Nevertheless, even reviewing the defendant's objections under the more restrictive de novo standard, the Court finds that the plaintiff's objections are without merit.

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