Opinion
No. 08-5032-pr.
December 16, 2009.
Appeal from a judgment of the United States District Court for the Northern District of New York (Kahn, J.).
UPON DUE CONSIDERATION, it is hereby ORDERED, ADJUDGED, and DECREED, that the judgment of the district court be and hereby is AFFIRMED.
Jason Liggins, Gouverneur, N.Y., pro se, for Appellant.
Bartle J. Gorman Esq., Gorman, Waszkiewicz, Gorman Schmitt, Utica, N.Y., for Appellees.
PRESENT: ROBERTA. KATZMANN, DEBRA ANN LIVINGSTON, and GERARD E. LYNCH, Circuit Judges.
SUMMARY ORDER
Appellant Jason Liggins, pro se, appeals from the judgment of the district court entered in favor of the Appellees in his 42 U.S.C. § 1983 action. Liggins argues that the district court erred in granting summary judgment on his claim of deliberate indifference to his safety and security, and in granting qualified immunity on this claim. To the extent Liggins raised additional claims in the district court, those claims have been abandoned because he did not raise them in his brief to this Court. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998). We assume the parties' familiarity with the underlying facts and procedural history of the case.
Although the parties do not raise this issue our review of the record does not reveal that Liggins received notice of the requirements of a response to the Appellees' cross-motion for summary judgment, or of the consequences of failing to properly oppose that motion. Failure to provide such notice does not require reversal, however, if there is a "clear indication" that the pro se litigant understood the nature or consequences of such a motion, see Hernandez v. Coffey, 582 F.3d 303, 308 (2d Cir. 2009) (internal quotation marks omitted).
Liggins filed his own motion for summary judgment, complete with a statement of material facts supported by exhibits, and a memorandum of law. Liggins also filed a response to the Appellees' cross-motion for summary judgment, and included a detailed rebuttal to the Appellees' statement of material facts along with citations to the record. Accordingly, we find that Liggins understood the nature and consequences of summary judgment. See M.B. #11072-054 v. Reish, 119 F.3d 230, 232 (2d Cir. 1997) (per curiam).
We review a district court's grant of summary judgment de novo, construing the evidence in the light most favorable to the non-moving party. See Miller v. Wolpoff Abramson, L.L.P., 321 F.3d 292, 300 (2d Cir. 2003). We must determine whether the district court properly concluded that there were no genuine issues of material fact and the moving party was entitled to judgment as a matter of law. Id.
Claims involving the conditions of pretrial detention are properly analyzed under the Due Process Clause of the Fourteenth Amendment. See Bell v. Wolfish, 441 U.S. 520, 535 n. 16, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). However, we have determined that "[c]laims for deliberate indifference to a . . . serious threat to the health or safety of a person in custody should be analyzed under the same standard irrespective of whether they are brought under the Eighth or Fourteenth Amendment." Caiozzo v. Koreman, 581 F.3d 63, 72 (2d Cir. 2009).
The "Eighth Amendment requires prison officials to take reasonable measures to guarantee the safety of inmates in their custody." Hayes v. New York City Dep't of Corn, 84 F.3d 614, 620 (2d Cir. 1996). Moreover, "prison officials are liable for harm incurred by an inmate if the officials acted with deliberate indifference to the safety of the inmate." Id. (internal quotation marks omitted). We have identified two factors that determine deliberate indifference: "First, the plaintiff must demonstrate that he is incarcerated under conditions posing a substantial risk of serious harm. Second, the plaintiff must demonstrate that the defendant prison officials possessed sufficient culpable intent." Id.
Here, Liggins was not incarcerated under conditions posing a substantial risk of serious harm. Liggins was held under "23 and 1" supervision in which he spent 23 hours each day in his cell, and only one hour outside of it. The other inmates on Liggins's block were held under the same conditions, and all inmates were under constant supervision by prison officials. Although Liggins argues that his transfer from one block to another placed him in greater danger of harm, the transfer actually moved Liggins away from the sole inmate on his "keep separate" list. Finally, although Liggins was assaulted by another inmate while showering, a prison employee was supervising Liggins's shower and interceded to end the assault.
In addition, the Appellees lacked sufficient culpable intent. Liggins claims that he warned several Appellees that his transfer exposed him to greater risk of harm from other inmates, but prison officials met with Liggins to hear his concerns and emphasize that his "23 and 1" supervision minimized his potential contact with other inmates. Further, as discussed above, Liggins was under supervision at the time of the assault, and there is no indication that the prison employee supervising his shower deliberately permitted the assault to occur.
Since there was no violation of Liggins's constitutional rights, it is unnecessary to address Appellee's defense of qualified immunity.
We have considered Appellant's remaining arguments on appeal and find them to be without merit.
For the foregoing reasons, the judgment of the district court is AFFIRMED.