    08-5032-pr
    Liggins v. Griffo



                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUMMARY ORDERS
FILED AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY THIS COURT’S LOCAL RULE
32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER PAPER IN WHICH
A LITIGANT CITES A SUMMARY ORDER, IN EACH PARAGRAPH IN WHICH A CITATION APPEARS, AT
LEAST ONE CITATION MUST EITHER BE TO THE FEDERAL APPENDIX OR BE ACCOMPANIED BY THE
NOTATION: “(SUMMARY ORDER).” A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF THAT
SUMMARY ORDER TOGETHER WITH THE PAPER IN WHICH THE SUMMARY ORDER IS CITED ON ANY PARTY
NOT REPRESENTED BY COUNSEL UNLESS THE SUMMARY ORDER IS AVAILABLE IN AN ELECTRONIC
DATABASE WHICH IS PUBLICLY ACCESSIBLE WITHOUT PAYMENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://WWW.CA2.USCOURTS.GOV/).    IF NO COPY IS SERVED BY REASON OF THE
AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION MUST INCLUDE REFERENCE TO
THAT DATABASE AND THE DOCKET NUMBER OF THE CASE IN WHICH THE ORDER WAS ENTERED.

         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 16th day of December, two thousand nine.

    PRESENT:
              Robert A. Katzmann,
              Debra Ann Livingston,
              Gerard E. Lynch,
                        Circuit Judges.
    __________________________________________

    Jason Liggins,

                        Plaintiff-Appellant,

                        v.                                        08-5032-pr

    Lt. Griffo, Watch Commander, et al.,

              Defendants-Appellees.
    __________________________________________

    FOR APPELLANT:                Jason Liggins, pro se, Gouverneur, N.Y.

    FOR APPELLEES:                Bartle J. Gorman Esq., Gorman, Waszkiewicz,
                                  Gorman & Schmitt, Utica, N.Y.
     Appeal from a judgment of the United States District Court

for the Northern District of New York (Kahn, J.).

     UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and

DECREED, that the judgment of the district court be and hereby is

AFFIRMED.

     Appellant Jason Liggins, pro se, appeals from the judgment

of the district court entered in favor of the Appellees in his 42

U.S.C. § 1983 action.   Liggins argues that the district court

erred in granting summary judgment on his claim of deliberate

indifference to his safety and security, and in granting

qualified immunity on this claim.    To the extent Liggins raised

additional claims in the district court, those claims have been

abandoned because he did not raise them in his brief to this

Court.   See Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir.

1998).   We assume the parties’ familiarity with the underlying

facts and procedural history of the case.1


     1
      Although the parties do not raise this issue, our review of
the record does not reveal that Liggins received notice of the
requirements of a response to the Appellees’ cross-motion for
summary judgment, or of the consequences of failing to properly
oppose that motion. Failure to provide such notice does not
require reversal, however, if there is a “clear indication” that
the pro se litigant understood the nature or consequences of such
a motion, see Hernandez v. Coffey, 582 F.3d 303, 308 (2d Cir.
2009) (internal quotation marks omitted).
     Liggins filed his own motion for summary judgment, complete

                                 2
     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). We must 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.

     Claims involving the conditions of pre-trial detention are

properly analyzed under the Due Process Clause of the Fourteenth

Amendment.     See Bell v. Wolfish, 441 U.S. 520, 535 n.16 (1979).

However, we have determined that “[c]laims for deliberate

indifference to a . . . serious threat to the health or safety of

a person in custody should be analyzed under the same standard

irrespective of whether they are brought under the Eighth or

Fourteenth Amendment.”     Caiozzo v. Koreman, 581 F.3d 63, 72 (2d

Cir. 2009).

     The “Eighth Amendment requires prison officials to take

reasonable measures to guarantee the safety of inmates in their

custody.”     Hayes v. New York City Dep’t of Corr., 84 F.3d 614,



with a statement of material facts supported by exhibits, and a
memorandum of law. Liggins also filed a response to the
Appellees’ cross-motion for summary judgment, and included a
detailed rebuttal to the Appellees’ statement of material facts
along with citations to the record. Accordingly, we find that
Liggins understood the nature and consequences of summary
judgment. See M.B. #11072-054 v. Reish, 119 F.3d 230, 232 (2d
Cir. 1997) (per curiam).
                                3
620 (2d Cir. 1996).   Moreover, “prison officials are liable for

harm incurred by an inmate if the officials acted with deliberate

indifference to the safety of the inmate.”       Id.   (internal

quotation marks omitted).   We have identified two factors that

determine deliberate indifference: “First, the plaintiff must

demonstrate that he is incarcerated under conditions posing a

substantial risk of serious harm.      Second, the plaintiff must

demonstrate that the defendant prison officials possessed

sufficient culpable intent.”   Id.

     Here, Liggins was not incarcerated under conditions posing a

substantial risk of serious harm.      Liggins was held under “23 and

1” supervision in which he spent 23 hours each day in his cell,

and only one hour outside of it.       The other inmates on Liggins’s

block were held under the same conditions, and all inmates were

under constant supervision by prison officials.        Although Liggins

argues that his transfer from one block to another placed him in

greater danger of harm, the transfer actually moved Liggins away

from the sole inmate on his “keep separate” list.       Finally,

although Liggins was assaulted by another inmate while showering,

a prison employee was supervising Liggins’s shower and interceded

to end the assault.

     In addition, the Appellees lacked sufficient culpable

intent.   Liggins claims that he warned several Appellees that his


                                   4
transfer exposed him to greater risk of harm from other inmates,

but prison officials met with Liggins to hear his concerns and

emphasize that his “23 and 1” supervision minimized his potential

contact with other inmates.   Further, as discussed above, Liggins

was under supervision at the time of the assault, and there is no

indication that the prison employee supervising his shower

deliberately permitted the assault to occur.

     Since there was no violation of Liggins’s constitutional

rights, it is unnecessary to address Appellee’s defense of

qualified immunity.

     We have considered Appellant’s remaining arguments on appeal

and find them to be without merit.

     For the foregoing reasons, the judgment of the district

court is AFFIRMED.

                               FOR THE COURT:
                               Catherine O’Hagan Wolfe, Clerk

                               By:___________________________




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