16-1664-pr
Mayo v. Lavis, et al.

                                    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.

       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 26th day of April, two thousand seventeen.

PRESENT:                AMALYA L. KEARSE,
                        GUIDO CALABRESI,
                        JOSÉ A. CABRANES,
                                     Circuit Judges.


WILSON MAYO,

                               Plaintiff-Appellant,                    16-1664-pr

                               v.

SGT. J. LAVIS, J. COLLIER, S. KELLY, and BOUGHKITE,

                               Defendants-Appellees.*


FOR PLAINTIFF-APPELLANT:                                    Wilson Mayo, pro se, Cape Vincent, NY.

FOR DEFENDANTS-APPELLEES:                                   Patrick Woods, Assistant Solicitor
                                                            General (Andrea Oser, Deputy Solicitor
                                                            General, Barbara D. Underwood, Solicitor
                                                            General, on the brief), for Eric T.




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

                                                        1
                                                             Schneiderman, Attorney General of the
                                                             State of New York, Albany, NY.

        Appeal from a May 13, 2016 judgment of the United States District Court for the Western
District of New York (William M. Skretny, Judge).

     UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the District Court be and hereby is
AFFIRMED.

        Plaintiff-appellant Wilson Mayo, proceeding pro se, appeals from a May 13, 2016 judgment
for defendants-appellees Shawn Kelly, James Collier, “J.” Lavis, and David Boughkite,1 who were
correctional officers at the Attica Correctional Facility.2 Mayo alleged claims under 42 U.S.C. § 1983
for excessive force and violations of his due process rights. On May 12, 2016, the District Court
granted summary judgment to the defendants on various grounds, including that Mayo failed to
exhaust his administrative remedies for his excessive force claim against Kelly, that collateral
estoppel barred Mayo’s due process claims against Collier and Lavis, and that the defendants were
entitled to qualified immunity. Mayo now timely appeals. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and the issues on appeal.

          “[W]e review de novo a [district court’s] grant of summary judgment under Rule 56 [of the
Federal Rules of Civil Procedure], construing all evidence in the light most favorable to the non-
moving party.” Willey v. Kirkpatrick, 801 F.3d 51, 62 (2d Cir. 2015). “Summary judgment is required
where ‘the movant shows that there is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’” Rodriguez v. Vill. Green Realty, Inc., 788 F.3d 31, 39 (2d Cir.
2015) (quoting Fed. R. Civ. P. 56(a)). Although the evidence is viewed in favor of the non-moving
party, “the mere existence of a scintilla of evidence in support of the plaintiff’s position will be
insufficient; there must be evidence on which the jury could reasonably find for the plaintiff.” Jeffreys
v. City of New York, 426 F.3d 549, 554 (2d Cir. 2005) (internal alterations and quotation marks
omitted). It is insufficient to “rely on conclusory allegations or unsubstantiated speculation” to
defeat a motion for summary judgment. Id. (internal quotation marks omitted).




    1
     Mayo’s pleadings and other papers in the proceedings below misspell this officer’s name, which
is Buchheit.
    2
     Mayo has presented no arguments in his briefs supporting his claims against James Conway,
which the District Court dismissed at the pleadings stage. Mayo has therefore forfeited his claims
against Conway. See Beatty v. United States, 293 F.3d 627, 632 (2d Cir. 2002).

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I.      Claims Against Kelly

         Mayo challenges the District Court’s grant of summary judgment on his claim that defendant
Kelly used excessive force against him after he had been in the prison’s visiting room. We reject his
challenges because Mayo failed to exhaust his administrative remedies. Under the Prison Litigation
Reform Act of 1995 (“PLRA”), “[n]o action shall be brought with respect to prison conditions
under section 1983 . . . by a prisoner confined in any jail, prison, or other correctional facility until
such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see Porter v. Nussle,
534 U.S. 516, 532 (2002) (“[T]he PLRA’s exhaustion requirement applies to all inmate suits about
prison life, whether they involve general circumstances or particular episodes, and whether they
allege excessive force or some other wrong.”). The PLRA requires “proper exhaustion,” meaning
exhaustion in “compliance with an agency’s deadlines and other critical procedural rules.” Woodford v.
Ngo, 548 U.S. 81, 90 (2006). The New York State Department of Corrections and Community
Supervision requires that prisoners file a grievance within 21 days of an alleged incident. Williams v.
Priatno, 829 F.3d 118, 119 (2d Cir. 2016) (citing N.Y. Comp. Codes R. & Regs. tit. 7, § 701.5(a)(1)).

        Here, Mayo concedes that he never filed a complaint against Kelly using this procedure. He
only appealed the result of his disciplinary hearing, which did not address or resolve this excessive
force claim. See Davis v. Barrett, 576 F.3d 129, 132 (2d Cir. 2009) (prisoner exhausted remedies for
due process claims by completing appeal procedures for disciplinary hearing, but that appeal “could
not be the basis for an additional grievance”).

        Mayo also cannot avail himself of any exceptions to the exhaustion requirement. Whatever
exceptions may remain available after the Supreme Court’s decision in Ross v. Blake, 136 S. Ct. 1850,
1856–58; see also Williams, 829 F.3d at 123–24 (quoting Ross, 136 S. Ct. at 1859–60), Mayo presents
no evidence indicating that any of these apply to his situation.

         Mayo next argues that the District Court failed to address his retaliation claim against Kelly
for writing a false misbehavior report and falsely testifying during Mayo’s disciplinary hearing. Even
if we construe Mayo’s complaint as alleging a retaliation claim, such a claim is also barred by Mayo’s
failure to exhaust his administrative remedies. See 42 U.S.C. § 1997e(a).

II.     Due Process Claims Against Lavis and Collier

        Mayo also challenges the grant of summary judgment to Lavis and Collier on his due process
claims. Mayo, however, failed to challenge in his brief the District Court’s determination that
collateral estoppel barred his due process claims. Accordingly, he has abandoned this issue on appeal
and, as such, his due process claims against Lavis and Collier remained barred by collateral estoppel.
See LoSacco v. City of Middletown, 71 F.3d 88, 92–93 (2d Cir. 1995).




                                                   3
        Even assuming that Mayo had made a proper challenge, the District Court correctly
determined that he was collaterally estopped from raising his due process claims. “Collateral
estoppel, or issue preclusion, prevents parties or their privies from relitigating in a subsequent action
an issue of fact or law that was fully and fairly litigated in a prior proceeding.” Marvel Characters, Inc. v.
Simon, 310 F.3d 280, 288 (2d Cir. 2002). For the doctrine to apply, a party must show that “(1) the
identical issue was raised in a previous proceeding; (2) the issue was actually litigated and decided in
the previous proceeding; (3) the party had a full and fair opportunity to litigate the issue; and (4) the
resolution of the issue was necessary to support a valid and final judgment on the merits.” Id. at
288–89 (internal quotation marks omitted). When a prisoner previously litigated a due process
challenge to a prison disciplinary hearing in an Article 78 proceeding in New York state court, he is
collaterally estopped from relitigating the claims unless he bases the claims on evidence that was not
considered by the reviewing state court. Giakoumelos v. Coughlin, 88 F.3d 56, 59–61 (2d Cir. 1996).

         In his Article 78 petition in New York state court, Mayo challenged his hearing on the basis
that (1) Lavis failed to hear the testimony of the visiting room officers and the officer who
conducted the pre-visitation frisk, that (2) Collier failed to properly assist him, and that (3) Lavis was
biased against him. Matter of Mayo v. Fischer, 918 N.Y.S.2d 676, 677 (3d Dep’t 2011). The Third
Department determined that Mayo’s challenges were meritless. Id. Here, Mayo asserts that Lavis and
Collier violated his due process rights on the same grounds, but offers no new evidence that was not
considered by the Third Department. Mayo is thus collaterally estopped from raising his due process
claims against Lavis and Collier.

III.    Procedural Error

        Mayo argues that the District Court improperly granted summary judgment without a report
and recommendation from a magistrate judge. A report and recommendation, however, is not
required for a district court to rule on a summary judgment motion. Magistrate judges may only
consider dispositive motions, such as summary judgment, when the district court judge specifically
designates them to do so. 28 U.S.C. § 636(b)(1). Although a magistrate judge was assigned to this
case, the magistrate judge was not designated to, and thus was not empowered to, consider any
dispositive motions. There was thus no error.

                                             CONCLUSION

        We have reviewed all of the remaining arguments raised by Mayo on appeal and find them to
be without merit. For the foregoing reasons, we AFFIRM the May 13, 2016 judgment of the
District Court.


                                                           FOR THE COURT:
                                                           Catherine O’Hagan Wolfe, Clerk


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