07-5597-pr
Johnson v. Barney


                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                                   SUMMARY ORDER

R U LIN GS BY SU M M A R Y O RD ER D O N OT H AVE PR EC ED EN TIA L EFFEC T . C IT A TIO N T O A SU M M A R Y O R D ER F IL ED O N O R
A FTER J AN UA RY 1, 2007, IS PERM ITTED AN D IS GOVERNED BY F EDER AL R U L E O F A PPELLATE P RO CED UR E 32.1 A N D
TH IS C OU R T ’ S L OC AL R ULE 32.1.1. W H EN C ITIN G A SU M M A R Y O RD ER IN A DO CU M EN T FILED W ITH TH IS C OU R T , A
PA R TY M U ST C ITE EITH ER THE F EDERAL A PPEND IX OR A N ELECTR ON IC D ATA BASE ( W ITH TH E N OTA TIO N “ SU M M A R Y
OR DER ”). A PAR TY CITING A SUM M AR Y ORD ER M UST SERVE A C OPY OF IT ON A NY PA R TY N O T R EP R ES EN TED BY
CO UN SEL .


       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 12th day
of January, two thousand ten.

PRESENT:
            WILFRED FEINBERG,
            ROBERT A. KATZMANN,
                        Circuit Judges,
            T. S. ELLIS, III,*
                        District Judge.
_______________________________________________

Johnathan Johnson,

                                         Plaintiff-Appellant,
                    v.                                                                      No. 07-5597-pr

Barney, Sergeant Oracz, Sgt. Sullivan, Several Unknown Guards,
Michael Lavender, David Lawrence, Joseph Palermo, Sergio Reyes,

                                         Defendants-Appellees,

Frank Tracy,

                        Defendant.
______________________________________________




               *
           T. S. Ellis, III, Senior Judge of the United States
     District Court for the Eastern District of Virginia, sitting
     by designation.
For Appellant:                                         JOHNATHAN JOHNSON, pro se,
                                                       Malone, N.Y.

For Appellees:                                         ANDREW M. CUOMO, Attorney
                                                       General of the State of New York,
                                                       (David Lawrence, III, on the brief),
                                                       New York, N.Y.


     Appeal from a judgment of the United States District Court for the Southern District of
New York (Sand, J.).

       UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED AND

DECREED that the judgment of the district court is AFFIRMED.

       Plaintiff-Appellant Johnathan Johnson, pro se and incarcerated, appeals from a judgment

of the district court entered after a jury verdict was rendered in favor of several employees of the

New York State Department of Correctional Services (“DOCS”), dismissing Johnson’s

complaint pursuant to 42 U.S.C. § 1983. Johnson alleged that (1) he was physically assaulted by

DOCS corrections officers during a search of his prison cell in violation of the Eighth

Amendment; (2) Frank Tracy, the prison superintendent, failed to preserve videotape footage of

the alleged assault; and (3) Daniel Sullivan, an employee of the Southport Correctional Facility

where Johnson was later incarcerated, fabricated a report of the investigation into the incident.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues raised on appeal.

       On appeal, Johnson challenges, inter alia, (1) the dismissal of his claim as to Sullivan for

failure to state a claim; (2) the grant of partial summary judgment in favor of Tracy for failure to

exhaust administrative remedies under the Prisoner’s Litigation Reform Act (“PLRA”); (3) the

denial of his request that the district court order adverse inference jury instructions due to the

alleged intentional or negligent disposal of the videotapes and other evidence; (4) the


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introduction of the testimony of defendants’ witness James Cavaleri without first certifying him

as an expert; and (5) the introduction of evidence at trial regarding Johnson’s history of receiving

misbehavior reports in prison.

       We review de novo (1) a district court’s dismissal of a complaint pursuant to Federal Rule

of Civil Procedure 12(b)(6), Chambers v. Time Warner, Inc. 282 F.3d 147, 152 (2d Cir. 2002),

(2) a district court’s order granting summary judgment, Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003), and (3) jury instructions, Hudson v. New York City, 271 F.3d

62, 67 (2d Cir. 2001). Where a party fails to object at trial, we review challenged jury

instructions and evidentiary rulings for plain error. See Fed. R. Civ. P. 51(d); Shah v. Pan Am.

World Servs., Inc., 148 F.3d 84, 96 (2d Cir. 1998); Fed. R. Evid. 103(d); United States v. Shaoul,

41 F.3d 811 (2d Cir. 1994).

       First, Johnson’s claims against Sullivan were properly dismissed because, as the district

court concluded, Sullivan’s allegedly false statements did not prevent Johnson from pursuing his

administrative remedies or from having meaningful access to the courts. See Freeman v.

Rideout, 808 F.2d 949, 953 (2d Cir. 1986) (holding that, where an inmate was granted an

administrative hearing and given the opportunity to rebut the charges against him, a prison

correctional officer’s “filing of unfounded charges against the inmate did not give rise to a per se

constitutional violation actionable under § 1983”). Second, Johnson’s claims against Tracy

failed as a matter of law because Johnson failed to allege sufficient personal involvement on

Tracy’s part to make him liable under § 1983. See Sealey v. Giltner, 116 F.3d 47, 51 (2d Cir.

1997) (holding that defendant, the Commissioner of DOCS, was not personally involved in an

alleged constitutional violation where an inmate’s letter addressed to the Commissioner was

forwarded to another prison official for decision). Third, Johnson’s argument that the district


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court erred by declining to order adverse inference jury instructions is meritless because Johnson

failed to demonstrate how the defendants at trial were ever in control of the videotapes or had an

obligation to preserve such evidence. See Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93,

107 (2d Cir. 2001). Fourth, the district court correctly allowed Cavaleri to testify as a lay witness

regarding the policies and practices of the prison because he had personal knowledge of such

policies and practices through his everyday experiences as an employee there. See United States

v. Munoz-Franco, 487 F.3d 25, 35 (2d Cir. 2007) (discussing how, under Federal Rule of

Evidence 701, courts have allowed lay witnesses to express opinions about their place of

employment “based on the witness’s own perceptions and knowledge and participation in the

day-to-day affairs of [the workplace]”). Finally, the district court did not err in allowing the

defendants to question Johnson about his history of misbehavior reports because they were not

used to prove that Johnson had a propensity to misbehave. See Fed. R. Evid. 404(a); Hynes v.

Coughlin, 79 F.3d 285, 290 (2d Cir. 1996) (“Evidence of prior acts is not admissible to prove

that the actor had a certain character trait, in order to show that on a particular occasion he acted

in conformity with that trait.”). Moreover, it was Johnson, and not the defendants, who first

indicated that Johnson had received misbehavior reports while in prison. See United States v.

Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) (discussing the concept of “opening the door” to permit

a party to introduce inadmissible evidence).

       We have reviewed Johnson’s remaining arguments and find them to be without merit.

For the reasons stated above, the judgment of the district court is AFFIRMED.


                                                       FOR THE COURT:
                                                       Catherine O’Hagan Wolfe, Clerk

                                                       By:________________________




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