08-4752-pr
Johnson v. Sm ith



                                UNITED STATES COURT OF APPEALS
                                    FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER

RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
SUM M ARY ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY THIS
COURT’S LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF
OR OTHER PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN
W HICH A CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL
APPENDIX OR BE ACCOM PANIED BY THE NOTATION: “(SUM M ARY ORDER).” A PARTY CITING
A SUM M ARY ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETHER WITH THE
PAPER IN W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY
COUNSEL UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE
W HICH IS PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE
AVAILABLE AT HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF
THE AVAILABILITY OF THE ORDER ON SUCH A DATABASE, THE CITATION M UST INCLUDE
REFERENCE TO THAT DATABASE AND THE DOCKET NUM BER OF THE CASE IN WHICH THE
ORDER W AS ENTERED.


        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 30th day of November, two thousand and nine.

Present:       JON O. NEWMAN,
               ROSEMARY S. POOLER,
               ROBERT A. KATZMANN,
                          Circuit Judges.

_____________________________________________________

BERNARD JOHNSON,
                                                      Plaintiff-Appellant,



                          -v-                                        (08-4752-pr)

J.T. SMITH, Superintendent
                                                      Defendant-Appellee.


Appearing for Appellant:          Robin C. Smith, Brooklyn, NY.

Appearing for Appellee:          Martin A. Hotvet, Assistant Solicitor General (Andrew M. Cuomo,
                                 Attorney General of the State of New York, Barbara D. Underwood,
                                 Solicitor General, Andrea Oser, Deputy Solicitor General, on the
                                 brief) for Albany, NY.
       Appeal from the United States District Court for the Northern District of New York
(Strom, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

        Appellant Bernard Johnson seeks review of the judgment and order of the district court
(Strom, J.) dismissing his 42 U.S.C. § 1983 claim following a bench trial. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of the issues for review.

        Appellee Joseph T. Smith has served as Superintendent of Shawangunk Correctional
Facility (“Shawangunk”) since 2002. Johnson, an inmate at Shawangunk, sprained his ankle
while playing on the facility’s basketball court on January 29, 2003. The parties stipulated that
there “were defects in certain areas of the gym floor where bubbles had formed in the vinyl
overlay to the cement base.” Johnson attributed his injury to this defect. Johnson alleges that
Smith’s failure to address this defect, either through repair or by closing that portion of the gym
floor, violated his Eighth Amendment right to be free from cruel and unusual punishment .
Following a bench trial, the district court dismissed Johnson’s claim, finding that (1) Johnson
failed to establish Smith acted with deliberate indifference; and, alternatively, (2) Smith was
entitled to qualified immunity. On appeal, Johnson primarily argues that Smith’s acts or
omissions violated Johnson’s Eighth Amendment rights.

         To establish an Eighth Amendment claim, Johnson first needed to show that the alleged
deprivation is, objectively, “sufficiently serious, . . . result[ing] in the denial of the minimal
civilized measure of life’s necessities.” Farmer v. Brennan, 

, 834 (1994) (internal
citations omitted). Second, Johnson needed to prove Smith possessed “a sufficiently culpable
state of mind, one of deliberate indifference to inmate health or safety.” 

must
both be aware of facts from which the inference could be drawn that a substantial risk of serious
harm exists, and he must also draw the inference.” 

(internal quotation and citation
omitted). The district court found, and neither party disputes, that Smith’s failure to repair or
restrict access to the defective basketball court was “sufficiently serious.” Instead, Johnson argues
that the district court committed clear error, and incorrectly applied the Farmer standard for
deliberate indifference.

        “Following a bench trial, we set aside findings of fact only when they are clearly
erroneous, and we give due regard to the trial court’s credibility determinations.” Zerega Avenue
Realty Corp. v. Hornbeck Offshore Transp., LLC, 

, 211 (2d Cir. 2009) (internal
citations omitted). Johnson argues the district court committed clear error when it held that Smith
knew of only one other injury attributed to the gym floor defect prior to Johnson’s injury. The
record supports the district court’s findings of fact. The parties stipulated that Smith knew of two
injuries “[i]n or around January 2003." The second grievance appeal - the one upon which the
parties relied on to establish Smith’s knowledge of the second incident, was dated January 30,
2003, such that the second injury could not have been brought to Smith’s attention until after
Johnson’s injury.

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        Further, the district court correctly applied the law. Under Farmer, there is no Eighth
Amendment deprivation where the official knew of the defect but failed to draw the inference of
substantial risk of serious harm. 

(“That a trier of fact may infer
knowledge from the obvious . . . does not mean that it must do so”). Johnson failed to satisfy the
subjective component of the Farmer framework, requiring that his complaint be dismissed.

       We have examined the remainder of Johnson’s arguments and we find them without merit.

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


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk

                                                     By:_______________________________




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