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Mosby v. Trabout

February 11, 2010

MALIK AZ'REAL MOSBY, PLAINTIFF,
v.
MARSHALL TRABOUT, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Hood, J.

DECISION & ORDER

This action brought pursuant to 42 U.S.C. § 1983 is before the Court on a motion for summary judgment brought Defendants Dr. Bezirganian, Debra Niemi, Michael Searles, Joanne Conway, Debra DeBartolo, John Doe ,a/k/a Officer Haines, Brendan Fairbanks, Harry Hawk, Darwin Smith, Sgt. Walpole, Sgt. DaMatteo, Sgt. Masters and Lieutenant Ray Bunce ("the County Defendants".)*fn1 Plaintiff has filed a response in opposition thereto.

The complaint contains eight counts alleging violations of Plaintiff's constitutional rights while he was an inmate at the Tompkins County Jail from August 20, 2005 to June 2, 2006. The facts pertaining to each will be outlined below.

Count 1

In Count 1, Plaintiff alleges he received inadequate medical care and inadequate mental health treatment from Dr. Bezirganian, Niemi, DiBartolo, Conway and Dr. Trabout. He has exhausted his administrative remedies on this issue. (Dkt. No. 61, Niemi Aff. ¶7).

With regard to the alleged inadequate mental health treatment, Plaintiff claims to have suffered from anxiety, paranoia and depression. The alleged mental health problems did not result from any physical injury. Indeed, Plaintiff does not allege that he suffered a physical injury that gave rise to the alleged psychological issues.

It is undisputed that Plaintiff was treated by medical and mental health professionals at the Jail and outside the Jail on a regular basis. He was examined or treated by medical staff at the Jail on at least nineteen occasions. In addition he was referred to other medical health professionals for examinations and treatment, including x-rays and MRIs.

Plaintiff does not allege that the defendants acted with deliberate indifference to a serious medical need, nor does he articulate any facts that can be so construed. He merely alleges negligence (defendants failed to meet "the standards for delivery of medical care in the State."). But there are no facts that would even suggest negligence, only Plaintiff's disagreement with medical decisions.

Plaintiff's main objection to his medical treatment is that mental health professionals refused to prescribe drugs for him which he desired. However, he was examined by the medical staff on numerous occasions and they determined that the requested drugs were not indicated. Plaintiff simply disagrees with their determination.

Plaintiff also claims that he was denied adequate medical care because he was required to withdraw from a "very powerful narcotic medication." Indeed, he was examined by the nurse and, after reviewing his condition and consulting with the Doctor, they determined that Mr. Mosby should not take that drug. Plaintiff just disagrees with the decision.

Finally, Plaintiff complains of a failure to received timely x-rays or MRIs. In fact, it is indisputable that Plaintiff was seen by medical health professionals who simply determined that such tests were not needed at the time Plaintiff desired them.

Count 2

Count 2 alleges that defendant Lt. Raymond Bunce deprived Plaintiff of personal property and engaged in retaliatory acts of harassment. Specifically, Plaintiff alleges that in August 2005 Plaintiff complained about the handling of twenty-five dollars in the Commissary by Lt. Bunce and that in January of 2006 Lt. Bunce began to retaliate.

Plaintiff filed one grievance relating to the allegations in Count 2. He filed Grievance No. 477 which alleged that on one occasion it took seven days (from February 14, 2006 to February 20, 2006) for him to get legal materials which were not housed in the Jail when typically it takes less time. Although that grievance was not timely, the Jail agreed that prisoners should receive legal materials in a shorter period of time and amended the procedures for receiving materials not available in the Jail in order to ensure the more timely receipt of materials by inmates. In effect, Plaintiff was successful on the grievance.

Plaintiff alleges that Lt. Bunce interfered with Plaintiff's grievances. Plaintiff specifically alleges that Lt. Bunce deemed one or more grievances untimely. Plaintiff is apparently referring to the grievance on the legal materials which Lt. Bunce determined was untimely. Nevertheless, despite its purported untimeliness, the Jail acknowledged the problem and took action to improve the delivery of materials to inmates.

With regard to that particular incident, the delay was not caused by Lt. Bunce withholding materials. Rather, Lt. Bruce turned over the materials to Plaintiff as soon as he received them from outside the Jail. The delay was the result of procedures which were subsequently improved to ensure more timely receipt of materials. (Dkt. No. 61, Bunce Aff. ¶¶ 4 and 5).

As part of the supposed retaliation Plaintiff also alleged that Lt. Bunce caused Plaintiff to be assaulted by other officers who also allegedly seized Plaintiff's property at the time. Plaintiff was, in fact, involved in an incident on February 6, 2006. On that date he attacked a Corrections Officer and was restrained by other Corrections Officers (see discussion on Count 4). Lt. Bunce claims he had no involvement with that incident. (Dkt. No. 61, Bunce Aff. ¶ 6).

Plaintiff also alleges that on or about February 14, 2006, Lt. Bunce ordered the seizure of his personal effects and that, as a result, he was deprived of those personal effects for six days. In fact, on that date, other officers determined that Plaintiff had excessive materials in his cell and, according to well established prison rules, put the excess materials in a property locker. Lt. Bunce purportedly was not involved in that incident either. (Dkt. No. 61, Bunce Aff. ¶ 7).

Count 3

Count 3 makes allegations against John Doe, a shift supervisor. As per this Court's order of July 7, 2008, that claim has been dismissed because Plaintiff has neither identified John Doe or taken reasonable steps to ascertain his identity. (Dkt. No. 47).

Count 4

Count 4 alleges that Plaintiff was assaulted by defendants Hawk, Searles, Smith, Schollenberger and DaMatteo on February 6, 2006. Plaintiff initially filed Grievance 494 alleging excessive force. However, after the initial grievance was returned to him as denied, he did not pursue the grievance. Thus, he did not exhaust his administrative remedies on the grievance. In fact, in a subsequent State lawsuit by Plaintiff the State Supreme Court determined that Plaintiff did not exhaust its administrative remedies with regard to this grievance.

Count 5

Count 5 alleges that defendant Sgt. Walpole was "responsible in his supervisory capacity" for several actions against Plaintiff. In one part of the complaint, Plaintiff alleges that Sgt. Walpole was responsible for the alleged attack on Plaintiff on February 12, 2006. (Am. Compl. at 29). In another part of the Complaint it is alleged that Walpole was responsible for an alleged attack on Plaintiff on February 12, 2005. (Id. at 16). Plaintiff never filed a grievance on these allegations against Sgt. Walpole.

Plaintiff was involved in an incident on February 6, 2006. Sgt. Walpole claims he was not personally involved in the alleged use of excessive force on February 6. He did not assist the officer who was attacked, nor did he restrain Plaintiff. Sgt. Walpole was not involved in any incident with Plaintiff on February 12 of any year. (Dkt. No. 61, Walpole Aff. ¶ 1). Indeed, Plaintiff does not claim that he was directly involved in the alleged unconstitutional activity.

Mr. Mosby also alleges that after the incident Sgt. Walpole refused to allow his injuries to be photographed. However, on February 6, Sgt. Walpole contends he personally escorted the Jail Nurse into Mr. Mosby's cell so that Plaintiff could be examined. The Nurse found no injuries.. Also, the Jail Physician examined Plaintiff the same day and he too determined that Plaintiff suffered no injuries. (Dkt. No. 61, Walpole Aff. ¶ 2) Sgt. Walpole is not aware of any incident on February 12. (Dkt. No. 61, Walpole Aff. ¶ 1).

Plaintiff further alleges that Sgt. Walpole was responsible for depriving Plaintiff of his property for six days. Sgt. Walpole disclaims ordering the seizure of any materials. In fact, while Mr. Mosby was in administrative segregation pending the hearing on the charges he was entitled to hold a more limited amount of materials than he could keep in his cell. As Mr. Mosby confirms in the documents attached to the complaint, all the materials were preserved and returned to him within six days.

Mr. Mosby also alleges that Sgt. Walpole ordered that he be moved to a holding cell where, Mr. Mosby alleges, he was subject to further assault. Mr. Mosby was moved to the holding cell pending the hearing, but he was not subject to any assault. Sgt. Walpole denies involvement in any such assault. (Dkt. No. 61, Walpole Aff. ΒΆ 3). Indeed, ...


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