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Morrison v. Herrick

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 20, 2020
18-3201-pr (2d Cir. May. 20, 2020)

Opinion

18-3201-pr

05-20-2020

DUONE MORRISON, Plaintiff-Appellant, v. HERRICK, SERGEANT; VAUGHN, CORRECTION OFFICER; ROBYCK, CORRECTION OFFICER; C.O. STROMAN, SUED INDIVIDUALLY, Defendants-Appellees, NAPOLI, SUPERINTENDENT; JOHN DOE, ASSISTANT DEPUTY SUPERINTENDENT FOR SECURITY 9/25/09; M. SHEAH, DEPUTY SUPERINTENDENT FOR SECURITY; JOHN DOE, WATCH COMMANDER ON THE DATE 9/25/09; OCLARY, SERGEANT, Defendants.

FOR PLAINTIFF-APPELLANT: Duone Morisson, pro se, Fallsburg, NY. FOR DEFENDANTS-APPELLEES: Brian D. Ginsberg, Assistant Solicitor General, Victor Paladino, Senior Assistant Solicitor General, Barbara D. Underwood, Solicitor General, for Letitia James, Attorney General of the State of New York, Albany, NY.


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 20th day of May, two thousand twenty. PRESENT: AMALYA L. KEARSE, DENNIS JACOBS, JOSÉ A. CABRANES, Circuit Judges.

FOR PLAINTIFF-APPELLANT:

Duone Morisson, pro se, Fallsburg, NY.

FOR DEFENDANTS-APPELLEES:

Brian D. Ginsberg, Assistant Solicitor General, Victor Paladino, Senior Assistant Solicitor General, Barbara D. Underwood, Solicitor General, for Letitia James, Attorney General of the State of New York, Albany, NY.

Appeal from a judgment of the United States District Court for the Western District of New York (Lawrence J. Vilardo, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the August 29, 2018 judgment of the District Court be and hereby is AFFIRMED.

Plaintiff-Appellant Duone Morrison ("Morrison"), proceeding pro se while incarcerated, appeals from a judgment of the District Court dismissing his action against various correctional officers at Southport Correctional Facility for, among other things, unlawfully placing him on contraband watch, imposing a restricted diet during Ramadan, and depriving him of a mattress, bedding, and access to bathroom facilities during the contraband watch. In screening orders made pursuant to the case-screening process prescribed by the Prison Litigation Reform Act, the District Court dismissed Morrison's claims relating to the restricted-diet order, supervisory liability, and the deprivation of bedding. The District Court also granted summary judgment in favor of Defendants on the remaining constitutional claim based upon his contraband watch. We assume the parties' familiarity with the underlying facts, procedural history of the case, and issues on appeal.

I. Appellate Jurisdiction Over Morrison's Claims

It is true, as Defendants point out, that Morrison's notice of appeal refers only to an August 8, 2018 decision granting "summary judgment." Although the District Court's docket does not reflect any opinion or order entered on that date, we can reasonably infer that Morrison is referring to the August 29, 2018 decision granting summary judgment in favor of Defendants. See Elliott v. City of Harford, 823 F.3d 170, 172-73 (2d Cir. 2016) (explaining that notices of appeal should be construed liberally); New Phone Co. v. City of New York, 498 F.3d 127, 131 (2d Cir. 2007) (reasoning that our jurisdiction "depends on whether the intent to appeal from [a] decision is clear on the face of, or can be inferred from, the notices of appeal").

Moreover, we have held that "in the absence of prejudice to an appellee, we read a pro se appellant's appeal from an order closing the case as constituting an appeal from all prior orders." Elliott, 823 F.3d at 171 (emphasis added). Here, Defendants have addressed the District Court's screening orders in their brief and have not made any showing of prejudice. Accordingly, we reject Defendants' argument that we lack jurisdiction to review the screening orders and, under Elliott, construe Morrison's notice of appeal broadly to extend to all of the District Court's orders of dismissal—i.e., the screening orders and the summary-judgment decision.

II. The Merits of Morrison's Claims

We review de novo a district court's screening order, see Liner v. Goord, 196 F.3d 132, 134 (2d Cir. 1999), and a grant of summary judgment, see Gorman v. Rensselaer Cty., 910 F.3d 40, 44-45 (2d Cir. 2018). Further, we "liberally construe pleadings and briefs submitted by pro se litigants, reading such submissions to raise the strongest arguments they suggest." McLeod v. Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017) (internal quotation marks and alteration omitted).

On review, we affirm the judgment of dismissal for substantially the reasons given by the District Court in its March 29, 2013 and May 21, 2014 screening orders, see App'x at 21-45, and the reasons given by Magistrate Judge Jeremiah J. McCarthy in his August 4, 2016 Report and Recommendation on the motion for summary judgment, see id. at 58-69, which was adopted by the District Court in its entirety in its August 29, 2018 Decision and Order, see id. at 70-71.

CONCLUSION

We have reviewed all of the remaining arguments raised by Morrison on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the August 29, 2018 judgment of the District Court.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk of Court


Summaries of

Morrison v. Herrick

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
May 20, 2020
18-3201-pr (2d Cir. May. 20, 2020)
Case details for

Morrison v. Herrick

Case Details

Full title:DUONE MORRISON, Plaintiff-Appellant, v. HERRICK, SERGEANT; VAUGHN…

Court:UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

Date published: May 20, 2020

Citations

18-3201-pr (2d Cir. May. 20, 2020)