Opinion
No. 10-1135-pr.
March 23, 2011.
Appeal from a judgment and order of the United States District Court for the Western District of New York (Foschio, M.J.).
The parties consented to the exercise of jurisdiction by a magistrate judge, pursuant to 28 U.S.C. § 636(c).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment and order of the district court are AFFIRMED.
Larry Porter, Attica, N.Y., pro se.
Patrick J. Walsh, Assistant Solicitor General (Barbara D. Underwood, Solicitor General; Michael S. Belohlavek, Senior Counsel, of counsel) for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Defendants-Appellees.
SUMMARY ORDER
Plaintiff-Appellant Larry Porter, proceeding pro se, appeals the district court's judgment which granted summary judgment on his 42 U.S.C. § 1983 claims in favor of the Defendants-Appellees, and that court's denial of his motion for reconsideration. We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the specification of issues on appeal.
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). In doing so, we 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. Additionally, we review for abuse of discretion the district court's orders denying motions made under Eules 59(e) and 60(b) of the Federal Rules of Civil Procedure. See Transaero, Inc. v. La Fuerza Aerea Boliviano, 162 F.3d 724, 729 (2d Cir. 1998) (Rule 60(b)); Baker v. Dorfman, 239 F.3d 415, 422 (2d Cir. 2000) (Rule 59(e)). "A district court would necessarily abuse its discretion if it based its ruling on an erroneous view of the law or on a clearly erroneous assessment of the evidence." Transaero, 162 F.3d at 729.
As an initial matter, by failing to challenge on appeal the magistrate judge's grant of summary judgment in favor of defendants with respect to the First and Eighth Amendment claims, Porter has waived any such challenge. See LoSacco v. City of Middletonm, 71 F.3d 88, 92-93 (2d Cir. 1995). Additionally, because Porter does not challenge the magistrate judge's conclusion that Porter failed to present facts showing an atypical and significant hardship resulting from the disciplinary proceedings, Porter has similarly waived any such challenge. See id.
An independent review of the record and relevant case law reveals that the magistrate judge properly granted summary judgment and properly denied Porter's reconsideration motion. We affirm for substantially the same reasons stated by the magistrate judge in his thorough and well-reasoned opinions of July 22, 2009 and March 9, 2010. See Porter v. Goord, No. 04-CV485, 2009 WL 2180580 (W.D.N.Y. July 22, 2009); Porter v. Goord, No. 04-CV-485, 2010 WL 891143 (W.D.N.Y. Mar. 9, 2010).
We have considered all of Porter's arguments and find them to be without merit. Accordingly, we AFFIRM the judgment and order of the district court.