10-1135-pr
Porter v. Goord
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the 23rd day of March, two thousand eleven.
PRESENT:
ROBERT A. KATZMANN,
RICHARD C. WESLEY,
Circuit Judges,
BRIAN M. COGAN,*
District Judge.
____________________________________________
LARRY PORTER,
Plaintiff-Appellant,
v. 10-1135-pr
GLENN GOORD, DONALD SELSKY, DAVID DOE, I-G,
MICHAEL P. MCGINNIS, BARRY CAPELL, JAMES P. WAITE,
ROCKY L. HAZELTON, RICHARD MORIARTY, MARK SHUMAKER,
JULIA HEYWARD, KAREN DYAL, PAUL H. WEED, CHARLE WORLE,
RICHARD AUGUSTINE, JAMES CASSELBERRY,
Defendants-Appellees.
____________________________________________
*
The Honorable Brian M. Cogan, United States District Judge for the Eastern District of
New York, sitting by designation.
FOR PLAINTIFF-APPELLANT: Larry Porter, pro se, Attica, N.Y.
FOR DEFENDANTS-APPELLEES: Patrick J. Walsh, Assistant Solicitor General
(Barbara D. Underwood, Solicitor General; Michael
S. Belohlavek, Senior Counsel, of counsel) for Eric
T. Schneiderman, Attorney General of the State of
New York, New York, N.Y.
Appeal from a judgment and order of the United States District Court for the Western
District of New York (Foschio, M.J.).1
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment and order of the district court are AFFIRMED.
Plaintiff-Appellant Larry Porter, proceeding pro se, appeals the district court’s judgment
which granted summary judgment on his 42 U.S.C. § 1983 claims in favor of the Defendants-
Appellees, and that court’s denial of his motion for reconsideration. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the specification of
issues on appeal.
We review a district court’s grant of summary judgment de novo, construing the evidence
in the light most favorable to the non-moving party. See Miller v. Wolpoff & Abramson, L.L.P.,
321 F.3d 292, 300 (2d Cir. 2003). In doing so, we determine whether the district court properly
concluded that there were no genuine issues of material fact and the moving party was entitled to
judgment as a matter of law. Id. Additionally, we review for abuse of discretion the district
court’s orders denying motions made under Rules 59(e) and 60(b) of the Federal Rules of Civil
1
The parties consented to the exercise of jurisdiction by a magistrate judge, pursuant to
28 U.S.C. § 636(c).
2
Procedure. See Transaero, Inc. v. La Fuerza Aerea Boliviana, 162 F.3d 724, 729 (2d Cir. 1998)
(Rule 60(b)); Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (Rule 59(e)). “A district court
would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on
a clearly erroneous assessment of the evidence.” Transaero, 162 F.3d at 729.
As an initial matter, by failing to challenge on appeal the magistrate judge’s grant of
summary judgment in favor of defendants with respect to the First and Eighth Amendment
claims, Porter has waived any such challenge. See LoSacco v. City of Middletown, 71 F.3d 88,
92-93 (2d Cir. 1995). Additionally, because Porter does not challenge the magistrate judge’s
conclusion that Porter failed to present facts showing an atypical and significant hardship
resulting from the disciplinary proceedings, Porter has similarly waived any such challenge. See
id.
An independent review of the record and relevant case law reveals that the magistrate
judge properly granted summary judgment and properly denied Porter’s reconsideration motion.
We affirm for substantially the same reasons stated by the magistrate judge in his thorough and
well-reasoned opinions of July 22, 2009 and March 9, 2010. See Porter v. Goord, No. 04-CV-
485, 2009 WL 2180580 (W.D.N.Y. July 22, 2009); Porter v. Goord, No. 04-CV-485, 2010 WL
891143 (W.D.N.Y. Mar. 9, 2010).
We have considered all of Porter’s arguments and find them to be without merit.
Accordingly, we AFFIRM the judgment and order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
3