Ocasio v. Conway

11-4912-pr
Ocasio v. Conway

                   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.

          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 4th day of December, two thousand twelve.

PRESENT:    DENNY CHIN,
            RAYMOND J. LOHIER, JR.,
                 Circuit Judges,
            PAUL G. GARDEPHE,
                 District Judge.*

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OMAR OCASIO,
                   Plaintiff-Appellant,
                   -v.-                               11-4912-pr
JAMES CONWAY, Superintendent Attica
Correctional Facility, et al.,
               Defendants-Appellees.
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FOR PLAINTIFF-APPELLANT:            Omar Ocasio, pro se, New York, New
                                    York.

FOR DEFENDANTS-APPELLEES:           Barbara D. Underwood, Solicitor
                                    General, Denise A. Hartman, Martin
                                    A. Hotvet, Assistant Solicitors
                                    General, for Eric T. Schneiderman,
                                    Attorney General of the State of
                                    New York, Albany, New York.


      *
          The Honorable Paul G. Gardephe, of the United States
District Court for the Southern District of New York, sitting by
designation.
          Appeal from the United States District Court for the

Western District of New York (Larimer, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Plaintiff-appellant Omar Ocasio, proceeding pro se,
appeals from the district court's judgment entered November 2,

2011, dismissing his complaint.    The district court granted

defendant-appellee Kelly Konesky's motion for summary judgment,

dismissing Ocasio's complaint, in a decision and order entered

November 1, 2011.   We assume the parties' familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.

          As an initial matter, we reject Konesky's argument that

we lack jurisdiction because Ocasio's notice of appeal failed to

designate the judgment or order being appealed.    Although Rule

3(c)(1)(B) of the Federal Rules of Appellate Procedure requires

that a notice of appeal "designate the judgment, order, or part

thereof being appealed," our appellate jurisdiction "depends on

whether the intent to appeal from [a] decision is clear on the

face of, or can be inferred from, the notices of appeal."       New

Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir. 2007).

Moreover, pro se filings are to be interpreted to raise the

"strongest arguments that they suggest."    Triestman v. Fed.

Bureau of Prisons, 470 F.3d 471, 476 (2d Cir. 2006) (per curiam)

(citations and internal quotation marks omitted).



                                  -2-
           Here, Ocasio's intent to appeal from the judgment

dismissing his complaint can be inferred from his filing of the

notice of appeal fifteen days after entry of the judgment.1

Accordingly, we have appellate jurisdiction to consider the

district court's judgment dismissing the complaint and the

underlying decision and order granting summary judgment.

           We review orders granting summary judgment de novo and

focus on whether the district court properly concluded that there

was no genuine issue as to any material fact and the moving party

was entitled to judgment as a matter of law.   See Miller v.
Wolpoff & Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003).     In

determining whether there are genuine issues of material fact, we

"resolve all ambiguities and draw all permissible factual

inferences in favor of the party against whom summary judgment is

sought."   Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003)

(internal quotation marks omitted).   Nonetheless, "conclusory

statements or mere allegations [are] not sufficient to defeat a

summary judgment motion."   Davis v. New York, 316 F.3d 93, 100

(2d Cir. 2002).

           In his appellate brief, Ocasio does not point to any

claims of error by the district court.   Instead, he merely makes

generalized statements that the district court's review of his




     1
          Although Ocasio mentions in his brief orders entered in
May 2010 and July 2010 by the district court, nothing in his
notice of appeal can be reasonably construed as expressing an
intent to appeal from those earlier decisions.

                                -3-
claims was inadequate.   A review of the record reveals, however,

that the district court properly granted summary judgment.

          Accordingly, we AFFIRM the district court's judgment

for substantially the reasons stated in its decision and order.

                               FOR THE COURT:
                               Catherine O'Hagan Wolfe, Clerk




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