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Phillip Jean-Laurent v. C.O. Wilkerson*Fn1

February 8, 2012

PHILLIP JEAN-LAURENT, PLAINTIFF-APPELLANT,
v.
C.O. WILKERSON*FN1 , #11281, CPT. MATOS, #856, CPT. BURROWS, #997, C.O. RODRIGUEZ, #15262, C.O. ROBINSON, #15169, WARDEN JERGENSON, #1 JOHN DOE, JOHN DOE #2, COMMISSIONER MARTIN F. HORN, DOMINICK MARTINEZ, DEFENDANTS-APPELLEES, CPT. MARTINEZ, #1218, PATRICK WALSH, C.O. DEIDRA COLDS, #12735, C.O. TERRY FOWLER, #3291, DONALD MCCARTHY, DEFENDANTS.



Appeal from a judgment of the United States District Court for the Southern District of New York (David Hittner, United States District Judge for the Southern District of Texas, sitting by designation).*fn2

09-1929-pr

Jean-Laurent v. Wilkerson, et al.

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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on the 8th day of February, two thousand twelve.

PRESENT: JOSE A. CABRANES, CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges.

UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the District Court is AFFIRMED in part, with respect to the dismissal of the claims against defendants Walsh, Fowler, Colds, Horn, and the City of New York, VACATED in part, with respect to its dismissal of plaintiff's state-law claims, and REMANDED for further proceedings.

Appellant Phillip Jean-Laurent, proceeding pro se, appeals from various orders and decisions of the District Court during the course of his lawsuit against certain officers of the City of New York Department of Correction ("DOC"), which ended in a jury verdict in his favor on claims against two defendants for conducting an unreasonable strip search and using excessive force, and against two supervisory defendants for negligent supervision. The jury returned a verdict in favor of four other defendants on claims of failure to intervene and negligent supervision. The jury awarded Jean-Laurent nominal compensatory damages and $15,000 in punitive damages. We assume the parties' familiarity with the underlying facts and procedural history of the case, and the issues on appeal.

I. Decision Partially Granting Motion to Dismiss

Jean-Laurent first challenges the District Court's decisions dismissing his claims against Warden Patrick Walsh and Officers Terry Fowler and Deidra Colds. "We review de novo a district court's dismissal of a complaint pursuant to Rule 12(b)(6), construing the complaint liberally, accepting all factual allegations in the complaint as true, and drawing all reasonable inferences in the plaintiff's favor." Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). A complaint must plead "enough facts to state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim will have "facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Although factual allegations in the complaint are assumed to be true, this tenet is "inapplicable to legal conclusions." Id.

With respect to Jean-Laurent's claims against Warden Patrick Walsh, we affirm the District Court's decision of July 6, 2006, dismissing these claims substantially for the reasons stated by the District Court. See Jean-Laurent v. Wilkerson, 438 F. Supp. 2d 318, 326 (S.D.N.Y. 2006).

We decline to address Jean-Laurent's argument that his First Amended Complaint should have been liberally construed to allege that Warden Walsh implemented an unconstitutional policy related to the use of excessive force, as he raises this argument for the first time on appeal. See In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008) ("It is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal.") (alteration omitted).

To the extent that Jean-Laurent has reiterated his argument that Warden Walsh was aware of, yet failed to prevent, the unconstitutional conduct of his subordinates, the District Court correctly determined that Jean-Laurent's pleadings contained no specific factual allegations suggesting that this may have been the case.

We also affirm, substantially for the reasons stated by the District Court, its judgment dismissing Jean-Laurent's claims against Officers Terry Fowler and Deidra Colds, for failing to intercede on his behalf. "A law enforcement officer has an affirmative duty to intercede on the behalf of a citizen whose constitutional rights are being violated in his presence by other officers." O'Neill v. Krzeminski, 839 F.2d 9, 11 (2d Cir. 1988). "Failure to intercede results in liability where an officer observes excessive force is being used or has reason to know that it will be." Curley v. Village of Suffern, 268 F.3d 65, 72 (2d Cir. 2001). However, "[i]n order for ...


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