Cox v. Malone

56 F. App'x 43

Opinion

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of said district court be and it hereby is AFFIRMED.

Plaintiff-appellant Keith Thomas Cox appeals from the April 26, 2002 judgment of the district court granting summary judgment in favor of defendants-appellees and dismissing Cox’s complaint, filed pursuant to 42 U.S.C. § 1983, alleging a violation of the Eighth Amendment for excessive use of force during a pat down frisk and a violation of his Fourteenth Amendment due process rights in connection with a disciplinary hearing. On appeal, Cox argues that the district court erred in (1) dismissing Cox’s Due Process claim on the ground that Cox waived it by failing to reiterate his request to have Simms testify when Hornbeck, the hearing officer, asked Cox if he had any procedural objections before she closed the hearing and Cox responded in the negative; (2) granting summary judgment before considering Cox’s motion for appointment of counsel; and (3) holding that Cox had failed to show malicious intent on the part of Simms or anything more than de minimis physical injury in connection with his Eighth Amendment claim, as required by the Prison Litigation Reform Act, 42 U.S.C. § 1997e(e).

We review a grant of summary judgment de novo. See Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir.1999). We have carefully considered all of Cox’s arguments and find them to lack merit for substantially the reasons stated in the district court’s thorough and well-reasoned opinion, see Cox v. Malone, 199 F.Supp.2d 135 (S.D.N.Y.2002).

Accordingly, the judgment of the district court is hereby AFFIRMED.