         11-1537
         Lopez v. Kirkpatrick




                                   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 for the Second Circuit, held at the
 2       Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
 3       on the 13th day of December, two thousand twelve.
 4
 5       PRESENT:
 6                   DENNIS JACOBS,
 7                         Chief Judge,
 8                   RALPH K. WINTER,
 9                    SUSAN L. CARNEY,
10                         Circuit Judges.
11       ____________________________________________________________
12
13       Peter Lopez,
14
15                                     Plaintiff-Appellant,
16
17                      -v.-                                                        11-1537
18
19       Robert A. Kirkpatrick, Superintendent Wende Correctional Facility,
20       et al.,
21
22                               Defendants-Appellees.
23       ___________________________________________________________
24
25       FOR APPELLANT:                Peter Lopez, pro se, Sullivan Correctional Facility, Fallsburg, New
26                                     York.
27
28
29
30
 1   FOR APPELLEES:                 Barbara D. Underwood, Solicitor General, Denise A. Hartman,
 2                                  Kate H. Nepveu, Assistant Solicitors General, Of Counsel, for Eric
 3                                  T. Schneiderman, Attorney General of the State of New York,
 4                                  Albany, New York.
 5
 6
 7          Appeal from an order of the United States District Court for the Western District of New

 8   York (Scott, M.J.).

 9          UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, AND

10   DECREED that the district court’s March 31, 2011 judgment is AFFIRMED.

11          Appellant Peter Lopez, pro se, appeals from the district court’s March 31, 2011 judgment

12   granting the appellees’ motion for summary judgment and dismissing his second amended

13   complaint alleging violations of the Americans with Disabilities Act, 29 U.S.C. §§ 12101 et seq.

14   (“ADA”), Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 799 et seq., the Eighth

15   and Fourteenth Amendments, and New York State Human Rights Law, N.Y. Exec. L. §§ 296 et

16   seq. We assume the parties’ familiarity with the underlying facts, procedural history, and issues

17   on appeal.

18          We review an order granting summary judgment de novo and focus on whether the

19   district court properly concluded that there were no genuine issues as to any material fact and

20   that the moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff &

21   Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). In determining whether there are genuine

22   issues of material fact, this Court is “required to resolve all ambiguities and draw all permissible

23   factual inferences in favor of the party against whom summary judgment is sought.” Terry v.

24   Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotations omitted). However, reliance

25   upon conclusory statements or mere allegations is not sufficient to defeat a summary judgment


                                                      2
 1   motion. See Yin Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); Fed R. Civ. P.

 2   56(e). This Court will only affirm the dismissal of a claim on summary judgment if “it appears

 3   beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would

 4   entitle [him] to relief.” Terry, 336 F.3d at 137 (internal quotation omitted).

 5             Here, an independent review of the record and the relevant case law reveals that, for

 6   substantially the same reasons stated in the magistrate judge’s well-reasoned March 30, 2011

 7   decision, the magistrate judge properly granted the Defendants’ summary judgment motion.

 8   Lopez’s primary contention is that the Defendants failed to reasonably accommodate his visual

 9   impairment1 while confined in the special housing unit for assaulting another inmate. He argues

10   that he was denied access to visual aids and that he was forced to rely on the help of other

11   inmates to perform necessary tasks. The magistrate judge erred, according to Lopez, by failing

12   to consider affidavits by two inmates who stated that they assisted Lopez in reading legal mail,

13   filling out prison-account forms, and preparing a challenge to his state court conviction.

14             We disagree. The magistrate judge properly found that Lopez’s proposed

15   accommodations posed a security risk. “[F]ederal courts ought to afford appropriate deference

16   and flexibility to state officials trying to manage a volatile environment . . . especially . . . in the

17   fine-tuning of the ordinary incidents of prison life[.]” Sandin v. Conner, 515 U.S. 472, 482

18   (1995).

19             Lopez argues that the magistrate judge erred in failing to credit the affidavit of Cynthia

20   Flowers, a former civilian employee of the Department of Corrections and Community



                  1
                  The Defendants do not dispute that Lopez’s impairment constitutes a disability
         under the ADA and Section 504 of the Rehabilitation Act.

                                                         3
 1   Supervision assigned to assist vision-impaired inmates, which stated that she advised the

 2   Defendants to return, inter alia, a typewriter, reading scanner, and talking dictionary to Lopez.

 3   However, Flowers’s affidavit did not create a material issue of fact regarding whether the

 4   Defendants failed to reasonably accommodate Lopez’s disability. Lopez does not dispute that

 5   the Defendants provided him with several visual aids, including pens for the visually impaired,

 6   large-print materials, an electric magnifier, and the assistance of an Instructor of the Blind who

 7   offers writing services to visually impaired inmates. The failure to provide Lopez with the

 8   specific accommodations of his choosing does not violate the ADA or the Rehabilitation Act.

 9           Finding no merit in Lopez’s remaining arguments, we hereby AFFIRM the judgment of

10   the district court.
11
12
13                                                         FOR THE COURT:
14
15                                                         Catherine O’Hagan Wolfe, Clerk
16
17




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