10-4693-pr
Colon 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 TO A SUMMARY ORDER MUST 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
on the 31st day of May, two thousand thirteen.

PRESENT: CHESTER J. STRAUB,
                 REENA RAGGI,
                 CHRISTOPHER F. DRONEY,
                         Circuit Judges.
----------------------------------------------------------------------
ARMANDO COLON,
                         Plaintiff-Appellant,

                 v.                                                      No. 10-4693-pr

GLENN S. GOORD, COMMISSIONER OF NEW YORK
STATE DEPARTMENT OF CORRECTIONAL SERVICES;
DONALD SELSKY, DIRECTOR OF SPECIAL HOUSING
AND INMATE DISCIPLINE; JOHN BURGE,
SUPERINTENDENT OF AUBURN CORRECTIONAL
FACILITY; MARK BRADT, FORMER DEPUTY
SUPERINTENDENT OF SECURITY AT AUBURN
CORRECTIONAL FACILITY; JOHN ROURKE, CAPTAIN
FOR SECURITY SERVICES AT AUBURN
CORRECTIONAL FACILITY; CRAIG GUMMERSON,
CAPTAIN FOR SECURITY SERVICES AT AUBURN
CORRECTIONAL FACILITY; STEPHEN KOTT,
CORRECTION COUNSELOR AT AUBURN
CORRECTIONAL FACILITY; LUCIEN LECLAIRE,
DEPUTY COMMISSIONER OF CORRECTIONAL
FACILITIES FOR NYSDOCS; HAROLD GRAHAM,
SUPERINTENDENT OF AUBURN CORRECTIONAL
FACILITY; JOSEPH F. BELLNIER, DEPUTY
SUPERINTENDENT FOR SECURITY, AUBURN
CORRECTIONAL FACILITY; S. WRIGHT,
CORRECTION OFFICER AT AUBURN CORRECTIONAL
FACILITY,
              Defendants-Appellees,

RICHARD ROY, DEPUTY COMMISSIONER AND
ACTING INSPECTOR GENERAL FOR NYSDOCS;
T H E R E S A KNAPP-DAVI D, DIRECTOR OF
CLASSIFICATION AND MOVEMENT; C. BARRETTE,
SERGEANT AT AUBURN CORRECTIONAL FACILITY;
JOSEPH GIANOTTA, SERGEANT AT AUBURN
CORRECTIONAL FACILITY; NORMAN AUSTIN,
CORRECTION OFFICER AT AUBURN CORRECTIONAL
FACILITY; DROCZAK, CORRECTION OFFICER AT
AUBURN CORRECTIONAL FACILITY; VINCE
KONECNY, CORRECTION OFFICER AT AUBURN
CORRECTIONAL FACILITY; P. DONNELLY,
CORRECTION OFFICER AT AUBURN CORRECTIONAL
FACILITY,
                         Defendants.*
----------------------------------------------------------------------

FOR APPELLANT:                                  Armando Colon, pro se, Wallkill, New York.

FOR APPELLEES:                                  Barbara D. Underwood, Solicitor General,
                                                Kathleen M. Treasure, Denise A. Hartman,
                                                Assistant Solicitors General, for Eric T.
                                                Schneiderman, Attorney General of the State of
                                                New York, Albany, New York.




        *
            The Clerk of Court is directed to amend the official caption as shown above.

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       Appeal from a judgment and order of the United States District Court for the Northern

District of New York (Thomas J. McAvoy, Charles B. Kornmann, Judges).

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

DECREED that the judgment entered on October 29, 2010, is AFFIRMED.

       Armando Colon appeals pro se from a judgment entered after a jury verdict in favor

of defendants on his Eighth Amendment claim of excessive force brought under 42 U.S.C.

§ 1983. Colon also appeals from an award of partial summary judgment in favor of

defendants on his due process challenge to his continued placement in involuntary protective

custody (“IPC”). We assume the parties’ familiarity with the facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Due Process

       We review an award of summary judgment de novo and will affirm only if the record,

viewed in the light most favorable to the non-moving party, reveals no genuine dispute of

material fact and the moving party’s entitlement to judgment as a matter of law. See Johnson

v. Killian, 680 F.3d 234, 236 (2d Cir. 2012).

       After an independent review of the record and relevant case law, we affirm the award

of partial summary judgment in favor of defendants on Colon’s due process claim for

substantially the reasons stated by the district court in its well-reasoned and thorough

decision and order. See Colon v. Goord, No. 9:05-cv-129, 2008 WL 783364 (N.D.N.Y. Mar.

20, 2008).

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       2.      Excessive Force

       In challenging the judgment after trial on his excessive force claim, Colon submits

that he was prejudiced by appearing in physical restraints before the jury. A trial court has

the discretion to order an inmate in a civil case to wear physical restraints if the court finds

that necessary to maintain safety or security, the restraints themselves are no greater than

necessary, and steps are taken to minimize prejudice from the presence of restraints. See

Hameed v. Mann, 57 F.3d 217, 222 (2d Cir. 1995). Where, as here, the record shows that

the district court followed the proper procedures in reaching its decision, we review its

restraint decision only for abuse of discretion. See id. We find no such abuse here because

the record, which indicates Colon’s record for violent crime and history of escapes, supports

the district court’s restraint decision. Colon does not assert that the restraining shackles or

handcuffs were ever visible to the jury, and he acknowledges that he testified without

handcuffs.

       Insofar as Colon asserts that the district court should have ordered that corrections

officers remove their bulletproof vests in the courtroom, no such request was made at trial

and, thus, the issue is unpreserved for appellate review. See Schnabel v. Trilegiant Corp.,

697 F.3d 110, 130 (2d Cir. 2012). To the extent Colon faults his pro bono counsel for failing

to raise an objection either to the officers’ vests or to his own restraints, that argument cannot

secure relief from judgment. See generally Leftridge v. Conn. State Trooper Officer No.

1283, 640 F.3d 62, 68 (2d Cir. 2011) (“A party has no constitutionally guaranteed right to

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the assistance of counsel in a civil case.”). In any event, Colon’s attorney did object to his

client’s restraints at the start of trial, and later acknowledged that the shackles were not

visible to the jury.

       We have considered Colon’s remaining arguments and find them to be 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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