10-1093-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 A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals
2 for the Second Circuit, held at the Daniel Patrick Moynihan
3 United States Courthouse, 500 Pearl Street, in the City of
4 New York, on the 15th day of March, two thousand twelve.
5
6 PRESENT:
7 DENNIS JACOBS,
8 Chief Judge,
9 DENNY CHIN,
10 SUSAN L. CARNEY,
11 Circuit Judges.
12
13 __________________________________________
14 Larry Porter,
15
16 Plaintiff-Appellant,
17
18 v. 10-1093-pr
19
20 Glenn Goord, et al.,
21
22 Defendants-Appellees.
23 __________________________________________
24
1
1 FOR APPELLANT: Larry Porter, pro se, Malone, NY.
2
3 FOR APPELLEES: Martin A. Hotvet, Assistant
4 Solicitor General (Barbara D.
5 Underwood, Solicitor General; Nancy
6 A. Spiegel, Senior Assistant
7 Solicitor General, on the brief) for
8 Eric T. Schneiderman, Attorney
9 General of the State of New York,
10 Albany, NY.
11
12 Appeal from a judgment of the United States District
13 Court for the Western District of New York (Foschio, M.J.).1
14
15 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
16 AND DECREED that the judgment of the district court is
17 AFFIRMED, in part, and VACATED, in part. The case is
18 REMANDED to the district court for further proceedings and
19 with instruction to appoint counsel for Plaintiff-Appellant
20 Porter.
21
22 Plaintiff-Appellant Larry Porter, pro se, appeals from
23 the district court’s judgment (1) granting summary judgment
24 for the defendants in Porter’s action brought pursuant to 42
25 U.S.C. § 1983, and (2) denying his motion for
26 reconsideration. We assume the parties’ familiarity with
1
In March 2008, this case was assigned to Magistrate
Judge Foschio for all purposes with the consent of the
parties. See 28 U.S.C. § 636(c).
2
1 the underlying facts, the procedural history of the case,
2 and the issues on appeal.
3 We review de novo an order granting summary judgment.
4 See Miller v. Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300
5 (2d Cir. 2003). Under Rule 56(a) of the Federal Rules of
6 Civil Procedure, a district court “shall grant” summary
7 judgment if the evidence shows “that there is no genuine
8 dispute as to any material fact.” Accord Celotex Corp. v.
9 Catrett, 477 U.S. 317, 322-23 (1986). A dispute is “mater-
10 ial” only if it “affect[s] the outcome of the suit under the
11 governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S.
12 242, 248 (1986). In assessing a motion for summary
13 judgment, we are “required to resolve all ambiguities and
14 draw all permissible factual inferences in favor of the
15 party against whom summary judgment is sought.” Terry v.
16 Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal
17 quotation marks omitted). However, “conclusory statements
18 or mere allegations [are] not sufficient to defeat a summary
19 judgment motion.” Davis v. New York, 316 F.3d 93, 100 (2d
20 Cir. 2002).
21 [1] The district court properly granted the defendants’
22 summary judgment motion with respect to Porter’s claims
23 against Commissioner Glenn Goord, Special Housing Unit
24 Director Donald Selsky, Superintendent Michael McGinnis,
3
1 Captain James Waite, Lieutenant Richard Strong, Senior
2 Investigator Thomas Todd, Lieutenant Richard Donahue, and
3 Nurse Connie DeMeritt. Porter failed to offer evidence
4 suggesting that these defendants were personally involved in
5 the alleged violation of Porter’s constitutional rights.
6 See Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995).
7 [2] The district court also correctly granted summary
8 judgment in favor of the defendants with respect to the
9 Eighth Amendment claim stemming from the alleged delay in
10 medical treatment, because Porter offered no evidence that
11 this delay was the result of anyone’s deliberate
12 indifference to his medical needs. See Chance v. Armstrong,
13 143 F.3d 698, 702 (2d Cir. 1998).
14 [3] As to the excessive-force claim, the defendants concede
15 that the district court erred in granting summary judgment
16 for New York State Department of Correctional Services
17 (“DOCS”) Officers Paul Weed, Peter Mastrantonio, and Joel
18 Armstrong. Porter has disputed the defendants’ account of
19 the incident, specifically denying that he provoked Officer
20 Mastrantonio by kicking him and that he violently resisted
21 the subsequent attempts to subdue him. Moreover, the record
22 does not indicate whether the evidence adduced by Porter
23 disputing the officers’ account is “contradict[ed]” by the
4
1 surveillance video that supposedly captured (a portion of)
2 the incident. See Scott v. Harris, 550 U.S. 372, 378 (2007)
3 (holding that a party cannot defeat summary judgment by
4 adducing testimony contradicted by a videotape of the
5 incident).
6 The defendants also concede that the district court
7 erred in granting summary judgment for Sergeant Gary Morse
8 on Porter’s claim that Morse failed to intervene to prevent
9 the other officers from using excessive force. “A law
10 enforcement officer has an affirmative duty to intercede on
11 the behalf of a citizen whose constitutional rights are
12 being violated in his presence by other officers,” O’Neill
13 v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988), and “is liable
14 for the preventable harm caused by the actions of the other
15 officers where that officer observes or has reason to know
16 . . . that excessive force is being used.” Anderson v.
17 Branen, 17 F.3d 552, 557 (2d Cir. 1994). The record
18 reflects a genuine issue of material fact as to whether
19 Morse failed to protect Porter from an alleged assault by
20 officers that he knew or had reason to know was occurring.
21 [4] To the extent that Porter has challenged the denial of
22 his requests for injunctive relief, the district court did
23 not abuse its discretion in denying those requests for the
5
1 reasons stated in its decision. See Carlos v. Santos, 123
2 F.3d 61, 67 (2d Cir. 1997) (explaining that “[w]e review a
3 denial of a request for a permanent injunction for abuse of
4 discretion.”).
5 [5] Porter has abandoned any challenge to the dismissal of
6 his remaining claims -- including his First Amendment
7 retaliation claim -- by failing to sufficiently raise such a
8 challenge in his brief. See LoSacco v. City of Middletown,
9 71 F.3d 88, 93 (2d Cir. 1995). Porter has also abandoned
10 any challenge to the denial of his reconsideration motion.
11
12 We have considered Porter’s other arguments on appeal
13 and have found them to be without merit. Accordingly, the
14 judgment of the district court is hereby AFFIRMED, in part,
15 and VACATED, in part. The case is REMANDED to the district
16 court for further proceedings and with instruction to
17 appoint counsel for Plaintiff-Appellant Porter.
18
19 FOR THE COURT:
20 Catherine O’Hagan Wolfe, Clerk
21
6