Guarneri v. West
| Decision Date | 06 September 2012 |
| Docket Number | No. 11-2233-cv,11-2233-cv |
| Court | U.S. Court of Appeals — Second Circuit |
| Parties | JOSEPH PAUL GUARNERI, Plaintiff-Appellant, v. CALVIN E. WEST, Superintendent Elmira Corr. Facility, KATTYLACKY, Sergeant, Elmira Correctional Facility, MISS. HAPKIN, Nurse Administrator of Elmira Correctional Facility, JAMES T. CONWAY, Superintendent Attica Correctional Facility, L. GUERTIN, First Deputy Superintendent of Attica Correctional Facility, M. WOELLER, Deputy Superintendent of Attica Correctional Facility, RANDY JAMES, Deputy Superintendent of Attica Correctional Facility, SANDRA DOLCE, Deputy Superintendent of Programs of Attica Correctional Facility, GEORGE STRUEBEL, Supervisor of Grievance of Attica Correctional Facility, B. FRISBY, Nurse Administrator of Attica Correctional Facility, D. ADAMY, Correctional Officer Attica Correctional Facility, KENNETH McLAUGHLIN, Director of Operation Inspector General, JOHN BAUERS, Physician Attica Correctional Facility, LASKAWSKI, Physician of Attica Correctional Facility, TURTON, R.N. of Attica Correctional Facility, HAWLEY, R.N. of Attica Correctional Facility, PREACHER, Correctional Officer of Attica Correctional Facility, JOHN DOE, Correctional Officer 29 Company of Attica Correctional Facility at 8:30 am, JOHN DOE, Correctional Officer of both 29 Company & 13 Company of Attica Correctional Facility 4 pm, RADEMACKER, Correctional Officer of Attica Correctional Facility, ELIOT L. SPITZER, New York Attorney General, Defendants-Appellees. |
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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 6th day of September, two thousand twelve.
Circuit Judges.
FOR PLAINTIFF:
Joseph Paul Guarneri, pro se, New York, New York.
Deputy Solicitor General, Barbara D. Underwood, Solicitor
General, for Eric T. Schneiderman, Attorney General of the
State of New York, Albany, New York.
Appeal from a judgment of the United States District Court for the Western District of New York (David G. Larimer, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment entered on May 9, 2011, is AFFIRMED.
Joseph Paul Guarneri, proceeding pro se, appeals from an award of summary judgment in favor of defendants on Guarneri's claims that Elmira and Attica Correctional Facilities officials violated his constitutional rights by (1) impeding the practice of his religion, (2) denying him access to the courts, (3) using excessive force against him in the performance of a pat-down search, and (4) subjecting him to cruel and unusual punishment by deliberately depriving him of basic amenities and medical care. We review an award ofsummary judgment de novo, construing the evidence in the light most favorable to Guarneri and drawing all reasonable inferences in his favor. See Gould v. Winstar Commc'ns, Inc., 686 F.3d 108, 117-18 (2d Cir. 2012). We will uphold the award only if there is no genuine dispute as to any material fact and the movants are entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Gould v. Winstar Commc'ns, Inc., 686 F.3d at 118. We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm.
As an initial matter, Guarneri has waived any challenge to the district court's determination that he failed to satisfy the administrative exhaustion requirements with respect to his Eighth Amendment and freedom of religion claims, and, accordingly, we affirm their dismissal. See LoSacco v. City of Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (). Although the district court also considered the merits of Guarneri's Eighth Amendment claims, we decline to do so in this case, as his failure properly to exhaust those claims is dispositive. See 42 U.S.C. § 1997e(a) (); Woodford v. Ngo, 548 U.S. 81, 93-95 (2006).
Guarneri has also waived any challenge to the district court's dismissal of his excessive force claim against the named and served defendants for lack of personal involvement. On appeal, he focuses on the district court's dismissal of his claim against a single defendant, "Officer Preacher," who was not timely served pursuant to Fed. R. Civ. P. 4(m). Although Guarneri argues on appeal that he has shown good cause for not timely serving this individual, he failed to raise that argument in opposing summary judgment in the district court. There, Guarneri asserted that other named defendants withheld the true identity of "Officer Preacher," whom, "by way of an Article 78 proceeding," Guarneri discovered to be an "Officer Piechowicz." Pl.'s Statement of Undisputed Facts at 2, Guarneri v. West, No. 6:05-cv-6483 (W.D.N.Y. Feb. 24, 2010), ECF No. 100. Yet Guarneri never contended that this purported deception prevented him from moving for an extension of time to...
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