Morales v. Seltzer

300 F. App'x 92

• Court: Court of Appeals for the Second Circuit
• Decided: November 17, 2008
• Docket: No. 04-5541-pr.
• Status: Published

Opinion

SUMMARY ORDER

Plaintiff-appellant Isaac Morales, pro se, appeals from the July 20, 2004 judgment of the United States District Court for the Southern District of New York (Castel, J.) dismissing Morales’s complaint. We assume the parties’ familiarity with the underlying facts and the procedural history of the case.

The Court affirms the judgment of the district court because Morales did not demonstrate that a genuine issue of material fact existed as to whether the defendants-appellees knew of and disregarded “an excessive risk to inmate health or safety.” Farmer v. Brennan, 511 U.S. 825, 837, 114 S.Ct. 1970,128 L.Ed.2d 811 (1994) (holding that, while prison officials must protect inmates from violence by other inmates, a prison official will only be liable if he was deliberately indifferent to a substantial risk of serious harm); see also Cuoco v. Moritsugu, 222 F.3d 99, 106 (2d Cir.2000) (‘We have often applied the Eighth Amendment deliberate indifference test to pre-trial detainees bringing actions under the Due Process Clause of the Fourteenth Amendment.”).

Furthermore, Morales’s claim that he was improperly transferred with Karem Cooke will not be considered because it was not raised in the district court. See generally Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 103 (2d Cir.2004). Finally, although Morales has requested additional discovery, his request is not timely. He did not move for additional discovery in the district court or contend that he could not respond to the summary judgment motion due to insufficient discovery.

We have reviewed plaintiff-appellant’s remaining arguments and find them to be without merit. Accordingly, the judgment of the district court is AFFIRMED.