     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




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