    10-1764-pr
    Peralta v. Vasquez



                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. W HEN CITING A SUM M ARY
ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITH ER TH E FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE N OTATION “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 1st day of December, two thousand ten.

    PRESENT:
                RALPH K. WINTER,
                GUIDO CALABRESI,
                ROBERT A. KATZMANN,
                      Circuit Judges.
    ________________________________________________

    Jose Peralta,

                               Plaintiff-Appellant,

                         v.                                                    10-1764-pr

    Commissioner Glenn S. Goord, Superintendent Wayne Strack,
    Fishkill Correctional Facility, ADSP R. Jones, Assistant Deputy
    Superintendent of Program Services, Anita R. Florio, Judge of the
    Appellate Division, Second Department, Guy James Mangano,
    Judge of the Appellate Division, Second Department, Martin H.
    Brownstein, Former Court Clerk, James Pelzer, Court Clerk of
    Appellate Divison, Second Department,

                               Defendants,

    Sandra Vasquez, Correction Counselor, Robert A. Jones, Assistant
    Deputy Superintendent of Program Services, Donald Selsky, Director,
Special Housing/Inmate Disciplinary Programs,

                  Defendants-Appellees.
________________________________________________

FOR APPELLANT:                Jose Peralta, pro se, Attica, N.Y.

FOR APPELLEES:                Andrew Cuomo, Attorney General of the State of New York;
                              Barbara D. Underwood, Solicitor General; Michael S. Belohlavek,
                              Senior Counsel; Carol Fischer, Assistant Solicitor General (on the
                              brief), New York, N.Y.


       Appeal from a judgment of the United States District Court for the Southern District of

New York (Jones, J.).

       UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED.

       Appellant Jose Peralta, pro se and incarcerated, appeals the judgment of the district court

granting the Defendants’ motion for summary judgment and dismissing his 42 U.S.C. § 1983

complaint, which alleged that the Defendants violated his due process rights during a prison

disciplinary hearing. Peralta also challenges the district court’s denial of his motion to appoint

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

the case, and the issues on appeal.

       We review orders granting summary judgment de novo and focus on whether the district

court properly concluded that there was no genuine issue as to any material fact and the moving

party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,

321 F.3d 292, 300 (2d Cir. 2003); Republic Nat’l Bank v. Delta Airlines, 263 F.3d 42, 46 (2d Cir.

2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999). In determining whether

there are genuine issues of material fact, we are “required to resolve all ambiguities and draw all


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permissible factual inferences in favor of the party against whom summary judgment is sought.”

Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotations omitted).

       We conclude that the district court, after an exhaustive review of the record, properly

granted the Defendants’ motion for summary judgment, and thus affirm the district court’s

judgment for substantially the same reasons as set forth in that court’s well-reasoned and

thorough order. Peralta’s arguments challenging that judgment are without merit. In addition,

we conclude that the lower court did not err by denying Peralta’s motion to appoint counsel,

since Peralta vigorously argued his case in the proceedings below, and we cannot say that the

lower court abused its discretion in finding that his arguments were not likely of substance. See

Jenkins v. Chemical Bank, 721 F.2d 876, 879 (2d Cir. 1983) (“[A] district court’s decision

whether to appoint a lawyer is subject to review only for an abuse of discretion.”); see also

Cooper v. A. Sargenti Co., 877 F.2d 170, 172 (2d Cir. 1989) (in deciding whether to appoint

counsel, a district court “should first determine whether the indigent’s position was likely to be

of substance”). We have considered all of Peralta’s remaining arguments and find them to be

without merit.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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