Mimms v. Carr

13-1128
Mimms v. Carr
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
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 TO 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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
19th day of December, two thousand thirteen.
PRESENT:
ROSEMARY S. POOLER,
GERARD E. LYNCH,
RAYMOND J. LOHIER, JR.,
Circuit Judges.
_____________________________________
Reginald Mimms,
Plaintiff-Appellant,
v. 13-1128
A.W. Carr, AKA Mr. Carr, et al.,
Defendants-Appellees.
_____________________________________
FOR PLAINTIFF-APPELLANT: Reginald Mimms, pro se, Bronx, NY.
FOR DEFENDANTS-APPELLEES: Loretta E. Lynch, United States Attorney,
Eastern District of New York, Varuni
Nelson, Margaret M. Kolbe, Orelia E.
Merchant, Assistant United States
Attorneys, of Counsel, Brooklyn, NY.
Appeal from a judgment of the United States District Court for the Eastern District of
New York (Garaufis, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment is AFFIRMED.
Appellant Reginald Mimms, a pro se former federal inmate, brought a Bivens action
against staff at the Metropolitan Detention Center, alleging misconduct including retaliation for
his filing of administrative grievances. The district court granted the defendants’ motion to
dismiss all claims except Mimms’s retaliation claim. The court subsequently granted summary
judgment on the retaliation claim, finding that Mimms had failed to exhaust his administrative
remedies as required under the Prison Litigation Reform Act. Mimms appeals from the district
court’s summary judgment order. We assume the parties’ familiarity with the underlying facts,
the procedural history of the case, and the issues on appeal.
We review orders granting summary judgment de novo and focus on whether the district
court properly concluded that there was no genuine dispute as to any material fact and the
moving party was entitled to judgment as a matter of law. See FED. R. CIV. P. 56(a); Miller v.
Wolpoff & Abramson, LLP, 321 F.3d 292, 300 (2d Cir. 2003). We are required to resolve all
ambiguities and draw all inferences in favor of the nonmovant; the inferences to be drawn from
the underlying facts revealed in materials such as affidavits, exhibits, interrogatory answers, and
depositions must be viewed in the light most favorable to the nonmoving party. See Nationwide
Life Ins. Co. v. Bankers Leasing Ass’n, Inc., 182 F.3d 157, 160 (2d Cir. 1999). Summary
judgment is appropriate “[w]here the record taken as a whole could not lead a rational trier of
fact to find for the non-moving party.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
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We conclude, as did the district court, that Mimms failed to exhaust his administrative
remedies as to his retaliation claim prior to filing suit, and that his failure to exhaust could not be
excused because the record established that remedies were available to him. In an apparent
attempt to demonstrate exhaustion, Mimms attaches a copy of an April 2010 administrative
appeal form. That document, which was not submitted to the district court and is dated two
months after he filed his complaint, has no bearing on the correctness of the district court’s
conclusions.
Finally, because Mimms raises no argument concerning the claims dismissed by the
district court prior to summary judgment, those claims are waived on appeal. See Norton v.
Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998) (“Issues not sufficiently argued in the briefs are
considered waived and normally will not be addressed on appeal.”); LoSacco v. City of
Middletown, 71 F.3d 88, 92-93 (2d Cir. 1995) (deeming claims not raised on appeal by pro se
litigant to be abandoned).
We have considered all of Mimms’s remaining arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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