1 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.**  At a stated term of the United States Court of Appeals 1 for the Second Circuit, held at the Daniel Patrick Moynihan 2 United States Courthouse, 500 Pearl Street, in the City of 3 New York, on the 15 thday of March, two thousand twelve. 4 5 PRESENT: 6 DENNIS JACOBS, 7 Chief Judge , 8 DENNY CHIN, 9 SUSAN L. CARNEY, 10 Circuit Judges

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__________________________________________ 13 Larry Porter, 14 15 Plaintiff-Appellant , 16 17 v. 10-1093-pr 18 19 Glenn Goord, et al. , 20 21 Defendants-Appellees
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__________________________________________ 23 241In March 2008, this case was assigned to Magistrate Judge Foschio for all purposes with the consent of the parties. See28 U.S.C. § 636(c). 2 FOR APPELLANT: Larry Porter, pro se , Malone, NY. 1 2 FOR APPELLEES: Martin A. Hotvet, Assistant 3 Solicitor General (Barbara D. 4 Underwood, Solicitor General; Nancy 5 A. Spiegel, Senior Assistant 6 Solicitor General, on the brief ) for 7 Eric T. Schneiderman, Attorney 8 General of the State of New York, 9 Albany, NY. 10 11 Appeal from a judgment of the United States District 12 Court for the Western District of New York (Foschio, M.J. ). 1 13 14 **UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,** 15
**AND DECREED** that the judgment of the district court is 16
**AFFIRMED** , in part, and **VACATED** , in part. The case is 17
**REMANDED**to the district court for further proceedings and 18 with instruction to appoint counsel for Plaintiff-Appellant 19
Porter. 20 21 Plaintiff-Appellant Larry Porter, pro se , appeals from 22 the district court’s judgment (1) granting summary judgment 23 for the defendants in Porter’s action brought pursuant to 42 24 U.S.C. § 1983, and (2) denying his motion for 25 reconsideration. We assume the parties’ familiarity with 263 the underlying facts, the procedural history of the case, 1 and the issues on appeal. 2 We review de novo an order granting summary judgment. 3
See Miller v. Wolpoff & Abramson, L.L.P. , 321 F.3d 292, 300 4 (2d Cir. 2003) . Under Rule 56(a) of the Federal Rules of 5 Civil Procedure, a district court “shall grant” summary 6 judgment if the evidence shows “that there is no genuine 7 dispute as to any material fact.” AccordCelotex Corp. v. 8
Catrett , 477 U.S. 317, 322-23 (1986). A dispute is “mater9 ial” only if it “affect[s] the outcome of the suit under the 10 governing law.” Anderson v. Liberty Lobby, Inc. , 477 U.S. 11 242, 248 (1986).In assessing a motion for summary 12 judgment, we are “required to resolve all ambiguities and 13 draw all permissible factual inferences in favor of the 14 party against whom summary judgment is sought.” Terry v. 15 Ashcroft , 336 F.3d 128, 137 (2d Cir. 2003) (internal 16 quotation marks omitted). However, “conclusory statements 17 or mere allegations [are] not sufficient to defeat a summary 18 judgment motion.” Davis v. New York , 316 F.3d 93, 100 (2d 19 Cir. 2002). 20 **[1]** The district court properly granted the defendants’ 21 summary judgment motion with respect to Porter’s claims 22 against Commissioner Glenn Goord, Special Housing Unit 23 Director Donald Selsky, Superintendent Michael McGinnis, 244 Captain James Waite, Lieutenant Richard Strong, Senior 1 Investigator Thomas Todd, Lieutenant Richard Donahue, and 2 Nurse Connie DeMeritt. Porter failed to offer evidence 3 suggesting that these defendants were personally involved in 4 the alleged violation of Porter’s constitutional rights. 5 See Colon v. Coughlin , 58 F.3d 865, 873 (2d Cir. 1995). 6 **[2]** The district court also correctly granted summary 7 judgment in favor of the defendants with respect to the 8 Eighth Amendment claim stemming from the alleged delay in 9 medical treatment, because Porter offered no evidence that 10 this delay was the result of anyone’s deliberate 11 indifference to his medical needs. See Chance v. Armstrong , 12 143 F.3d 698, 702 (2d Cir. 1998). 13 **[3]** As to the excessive-force claim, the defendants concede 14 that the district court erred in granting summary judgment 15 for New York State Department of Correctional Services 16 (“DOCS”) Officers Paul Weed, Peter Mastrantonio, and Joel 17 Armstrong. Porter has disputed the defendants’ account of 18 the incident, specifically denying that he provoked Officer 19 Mastrantonio by kicking him and that he violently resisted 20 the subsequent attempts to subdue him. Moreover, the record 21 does not indicate whether the evidence adduced by Porter 22 disputing the officers’ account is “contradict[ed]” by the 235 surveillance video that supposedly captured (a portion of) 1 the incident. See Scott v. Harris , 550 U.S. 372, 378 (2007) 2 (holding that a party cannot defeat summary judgment by 3 adducing testimony contradicted by a videotape of the 4 incident). 5 The defendants also concede that the district court 6 erred in granting summary judgment for Sergeant Gary Morse 7 on Porter’s claim that Morse failed to intervene to prevent 8 the other officers from using excessive force. “A law 9 enforcement officer has an affirmative duty to intercede on 10 the behalf of a citizen whose constitutional rights are 11 being violated in his presence by other officers,” O’Neill 12 v. Krzeminski , 839 F.2d 9, 11 (2d Cir. 1988), and “is liable 13 for the preventable harm caused by the actions of the other 14 officers where that officer observes or has reason to know 15 . . . that excessive force is being used.” Anderson v. 16
Branen , 17 F.3d 552, 557 (2d Cir. 1994). The record 17 reflects a genuine issue of material fact as to whether 18 Morse failed to protect Porter from an alleged assault by 19 officers that he knew or had reason to know was occurring. 20 **[4]** To the extent that Porter has challenged the denial of 21 his requests for injunctive relief, the district court did 22 not abuse its discretion in denying those requests for the 236 reasons stated in its decision. SeeCarlos v. Santos , 123 1 F.3d 61, 67 (2d Cir. 1997) (explaining that “[w]e review a 2 denial of a request for a permanent injunction for abuse of 3 discretion.”). 4 **[5]** Porter has abandoned any challenge to the dismissal of 5 his remaining claims -- including his First Amendment 6 retaliation claim -- by failing to sufficiently raise such a 7 challenge in his brief. SeeLoSacco v. City of Middletown , 8 71 F.3d 88, 93 (2d Cir. 1995). Porter has also abandoned 9 any challenge to the denial of his reconsideration motion. 10 11 We have considered Porter’s other arguments on appeal 12 and have found them to be without merit. Accordingly, the 13 judgment of the district court is hereby **AFFIRMED,** in part, 14 and **VACATED** , in part. The case is **REMANDED**to the district 15 court for further proceedings and with instruction to 16 appoint counsel for Plaintiff-Appellant Porter. 17 18 FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk 20 21