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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

New York, on the 15th 4 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 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 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

Court for the Western District of New York (Foschio, M.J.).1 13

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
3

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 “mater10 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,
4

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
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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
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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