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Dixon v. Harrington

United States District Court, Northern District of New York

November 7, 2014

MALIK AZ'RAEL MOSBY, Plaintiff,
v.
MARSHALL TRABOUT, Defendant

MALIK AZ'RAEL MOSBY, Plaintiff, Pro se, Sonyea, NY.

For Defendant: E. MAINES, ESQ., OF COUNSEL, HARRIS BEACH PLLC RUSSELL, Ithaca, NY.

For County Defendants: JONATHAN WOOD, ESQ., OF COUNSEL, TOMPKINS COUNTY ATTORNEY'S OFFICE, Ithaca, NY.

REPORT-RECOMMENDATION

THÉ RÈSE WILEY DANCKS, United States Magistrate Judge.

This pro se prisoner civil rights action, commenced pursuant to 42 U.S.C. § 1983, has been referred to me for Report and Recommendation by the Honorable Norman A. Mordue, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(c). Plaintiff Malik Az'Rael Mosby alleges that his constitutional rights were violated while he was an inmate at the Tompkins County Jail. Currently pending before the Court are Plaintiff's motion to obtain discovery (Dkt. No. 139), Defendant Trabout's motion for summary judgment (Dkt. No. 130), and Plaintiff's motion to vacate an earlier order granting summary judgment for Defendant Bezerganian (Dkt. No. 161). For the reasons that follow, I recommend that the Court deny Plaintiff's motion to obtain discovery, grant Defendant's motion for summary judgment, and deny Plaintiff's motion to vacate.

I. FACTUAL AND PROCEDURAL SUMMARY

Plaintiff, now an inmate of the New York Department of Corrections and Community Supervision (" DOCCS"), was housed at the Tompkins County Jail in 2005 and 2006. (Dkt. No. 7 at 2.) Plaintiff suffered from mental health issues and a right shoulder injury that predated his incarceration. (Dkt. No. 7 at 4; Dkt. No. 161 at 24-35.)

In the first count of his eight-count complaint, Plaintiff alleges that he received constitutionally inadequate medical care and mental health treatment from Defendant Dr. Marshall Trabout at the jail. (Dkt. No. 7 at 22-25; Dkt. No. 81 at 2.) Specifically, Plaintiff alleges that Defendant Trabout failed to authorize x-rays and an MRI of his right shoulder, failed to prescribe pain medication, disregarded the advice of a specialist regarding Plaintiff's shoulder, failed to monitor lesions via CAT scans, and failed to properly treat Plaintiff after an alleged use of force by correction officers. (Dkt. No. 7 at 6-8.)

Defendant Trabout declares that Plaintiff was treated or examined approximately nineteen times while at the jail. (Dkt. No. 131-3 ¶ 3.) Defendant Trabout declares that he did not order xrays or MRIs because he " did not feel the patient needed the studies based on [his] clinical evaluation and judgment." Id. ¶ 5. Defendant Trabout declares that he did not prescribe the medications that Plaintiff requested because he " determined that they were not medically indicated." Id. ¶ 4. Defendant Trabout declares that he examined Plaintiff after the alleged use of force " and found no bruises or abrasions." Id. ¶ 6.

Plaintiff ultimately underwent surgery on his right shoulder on February 27, 2007. (Dkt. No. 139-1 at 10.)

Plaintiff filed this action against Defendant Trabout and others on September 29, 2006. (Dkt. No. 1.) Defendant Trabout was served with the complaint on August 6, 2007. (Dkt. No. 38.) However, he did not appear in the action. The other individuals named in the first count (" the County Defendants") appeared in the action, represented by the Tompkins County Attorney's Office. (Dkt. Nos. 26, 31.)

On February 11, 2010, the Court entered summary judgment in favor of the County Defendants. (Dkt. No. 81.) Regarding the first count, the Court found that Plaintiff had failed to raise a triable issue that the County Defendants were deliberately indifferent to Plaintiff's serious medical needs. Id. at 16-17. The Court's order explicitly stated that " [n]othing said in this Opinion and Order addresses Plaintiff's claims against" Defendant Trabout. Id. at 1 n.1. Plaintiff appealed the order to the Second Circuit. (Dkt. No. 90.)

On February 16, 2010, the Court entered default against Defendant Trabout and advised Plaintiff that he could seek default judgment pursuant to Federal Rule of Civil Procedure 55(b). (Dkt. No. 83.) On March 23, 2010, Plaintiff moved for default judgment against Defendant Trabout. (Dkt. No. 93.)

On September 9, 2010, the Second Circuit dismissed Plaintiff's appeal of the order granting summary judgment for the County Defendants. (Dkt. No. 102.)

On September 10, 2010, Plaintiff requested that Defendant Trabout either be brought to court and held in contempt for " disobeying the complaint" or, in the alternative, that the Court order Defendant Trabout " or his attorney to have a conference before the Court to discuss the disposal of this case through a settlement agreement." (Dkt. No. 101 at 3.)

On September 27, 2010, this Court received the Mandate of the Second Circuit dismissing ...


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