Gambino v. Payne et al

Filing 102

ORDER adopting Magistrate Judge Hugh B. Scott's Report and Recommendation 68 as filed on December 24, 2014. Defendant's motion to compel 41 is granted. Plaintiff's motion for deposition transcript 49 is denied as moot. Plainti ff's motions for injunctive relief and his motion for preservation of records 31 32 34 and 33 are denied. The matter is remanded to Magistrate Judge Scott for further proceedings. SO ORDERED. Signed by Hon. Richard J. Arcara on 4/21/15. (LAS)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

DAVID AUGUST GAMBINO,
Plaintiff,
v.

ORDER
12-CV–824

CAPTAIN PAYNE, et al.,
Defendants.

The instant case, involving various civil rights claims, was referred to
Magistrate Judge Hugh B. Scott pursuant to 28 U.S.C. §636(b)(1). Plaintiff, who
is proceeding pro se, alleges that he is a recent convert to Judaism and that while
in custody defendants exposed his body in violation of his religious beliefs.
Plaintiff alleges failure to protect, deliberate indifference to medical needs, and
that he was subject to corporal punishment as well as sexual misconduct.
Plaintiff filed motions for various forms of injunctive relief (Dkt. Nos. 31, 32, 34), a
motion to preserve records (Dkt. No. 33), and a motion for a copy of his transcript
(Dkt. No. 49). Defendants filed a motion to compel plaintiff to execute
authorizations for records for discovery purposes. (Dkt. No. 41).
On December 24, 2014, Magistrate Judge Scott issued a Report and
Recommendation ordering that defendants’ motion to compel be granted and
plaintiff’s motion for a copy of his transcript denied as moot. (Dkt. No. 68). The
Magistrate Judge further recommended that plaintiff’s motions for injunctive relief

and motion to preserve records be denied. Id. Plaintiff filed objections on
January 12, 2015 (Dkt. No. 73), and defendants filed a response on January 26,
2015 (Dkt. No. 74). The Court then deemed the matter submitted without oral
argument.
Pursuant to 28 U.S.C. §636(b)(1), this Court must make a de novo
determination of those dispositive portions of the Report and Recommendation to
which objections have been made. With respect to the Magistrate Judge’s
determination as to the non-dispositive motions, modification is only appropriate if
the appealed from decision is clearly erroneous or contrary to law. See 28 U.S.C.
§636(b)(1)(A). Upon review, and after reviewing the submissions from the
parties, the Court hereby adopts the Magistrate Judge’s recommendations and
findings in their entirety.
Accordingly, for the reasons set forth in Magistrate Judge Scott’s Report
and Recommendation, defendants’ motion to compel is granted (Dkt. No. 41) and
plaintiff’s motion for a copy of his deposition transcript is denied as moot (Dkt. No.
49). In addition, plaintiff’s various motions for injunctive relief as well as his
motion for preservation of records are denied (Dkt. Nos. 31, 32, 34 and 33).
The matter is remanded to Magistrate Judge Scott for further proceedings.

SO ORDERED.

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____Richard J. Arcara____________
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT COURT
Dated: April 21, 2015

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