09-0690-pr
Kornegay v. John Doe


                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED B Y THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. WHEN CITING A
SUM M ARY ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY
ORDER”). A PARTY CITING A SUM M ARY ORDER M UST 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 30 th day of March, two thousand ten.

PRESENT:         ROBERT D. SACK,
                 REENA RAGGI,
                 PETER W. HALL,
                         Circuit Judges.
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LEON KORNEGAY,
                         Plaintiff-Appellant,
                 v.                                                    No. 09-0690-pr

JOHN DOE, ETC. CORRECTIONAL OFFICERS,
ANY SUPERVISORY PERSONNEL SUFFOLK
COUNTY, CENTRAL SUFFOLK MEDICAL
HOSPITAL, COUNTY OF SUFFOLK, SUFFOLK
COUNTY SHERIFF’S DEPARTMENT,
SUFFOLK COUNTY SHERIFF, C.O. JOHN
FINOCCHIARO, SGT. ROBERT AITKEN, C.O.
JAMES KIERAN, C.O. WILLIAM SHIPMAN,
LT. JOHN NOLAN, SGT. CHRISTOPHER BLACK,
SGT. BERNARD CONWAY, C.O. MARK
MAGNANI, C.O. PAUL ENGELHARDT, C.O.
LOUIS VISCUSI, SGT. MARCINOWSKI, C.O.
JOHN URBANCIK, C.O. RALPH DANIELSSEN,
                         Defendants-Appellees.
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APPEARING FOR APPELLANT:                  LEON KORNEGAY, pro se, Deer Park, New
                                          York.

APPEARING FOR APPELLEES:                  BRIAN C. M ITCHELL, Assistant County
                                          Attorney, County of Suffolk, Hauppauge, New
                                          York.

       Appeal from the United States District Court for the Eastern District of New York

(Sandra J. Feuerstein, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the February 9, 2009 judgment of the district court is AFFIRMED.

       Leon Kornegay, pro se, appeals a judgment in favor of defendants on this action under

42 U.S.C. § 1983 alleging principally that corrections officers subjected him to excessive

force. Although Kornegay’s failure to state the basis for his appeal arguably warrants

affirmance, see Otero v. Bridgeport Housing Auth., 297 F.3d 142, 144 (2d Cir. 2002), we

construe the appeal as challenging the grant of defendants’ pre-verdict motion for judgment

as a matter of law under Fed. R. Civ. P. 50(a). Such a motion may be granted only where “a

reasonable jury could reach but one conclusion.” Hannex Corp. v. GMI, Inc., 140 F.3d 194,

203 (2d Cir. 1998) (internal quotation marks omitted). We review the grant of a Rule 50

motion de novo, viewing the evidence in the light most favorable to the non-moving party.

See Tuccio v. Marconi, 589 F.3d 538, 540-41 (2d Cir. 2009). In applying this standard, we

assume familiarity with the facts and procedural history, which we reference only as

necessary to explain our decision to affirm.

       It is well settled that “personal involvement of defendants in alleged constitutional

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deprivations is a prerequisite to an award of damages under § 1983.” Farid v. Ellen, 593

F.3d 233, 249 (2d Cir. 2010) (internal quotation marks omitted). To be sure, the “general

principle of tort law that a tort victim who cannot identify the tortfeasor cannot bring suit”

may be “relaxed . . . in actions brought by pro se litigants,” “particularly . . . where the

plaintiff is incarcerated.” Valentin v. Dinkins, 121 F.3d 72, 75 (2d Cir. 1997) (internal

citation omitted). Kornegay is no longer incarcerated, however, and he was permitted

discovery. Nevertheless, in his own sworn testimony before the jury, Kornegay failed to

attribute specific actions to any individual defendant. Even if we were to treat Kornegay’s

opening statement as evidence, which we do not, it serves only further to illustrate his

inability to demonstrate which, if any, of the defendants engaged in the challenged conduct.

Thus, we detect no error in the district court’s conclusion that Kornegay failed to present

evidence sufficient to permit a reasonable juror to find, by a preponderance of the evidence,

that he had satisfied his “burden of establishing that something was done to [him] and by

whom it was done.” Trial Tr. at 30 (emphasis supplied).

       We have considered Kornegay’s remaining arguments on appeal, and they are without

merit. Accordingly, the judgment of the district court is AFFIRMED.

                                    FOR THE COURT:
                                    CATHERINE O’HAGAN WOLFE, Clerk of Court




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