Doe v. Whidden , 557 F. App'x 71 ( 2014 )

13-0787-cv
Doe v. Whidden
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
ASUMMARY 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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
York, on the 20th day of February, two thousand fourteen.
PRESENT: AMALYA L. KEARSE
REENA RAGGI,
Circuit Judges,
EDWARD R. KORMAN,*
District Judge.
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JOHN DOE,
Plaintiff-Appellant,
v. No. 13-0787-cv
CHRISTINE WHIDDEN, WARDEN OF THE MANSON
YOUTH INSTITUTION,
Defendant-Appellee.
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APPEARING FOR APPELLANT: JONATHAN J. EINHORN, Law Office
of Jonathan J. Einhorn, New Haven,
Connecticut.
APPEARING FOR APPELLEE: ROBERT S. DEARINGTON (Lynn D.
Wittenbrink, on the brief), Assistant
Attorneys General, for George Jepsen,
*
The Honorable Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
Attorney General of the State of
Connecticut, Hartford, Connecticut.
Appeal from a judgment of the United States District Court for the District of
Connecticut (Vanessa L. Bryant, Judge).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment entered on February 25, 2013, is AFFIRMED.
Plaintiff John Doe appeals from an award of summary judgment to defendant
Christine Whidden, warden of the Manson Youth Institute (“MYI”), on Doe’s claim under
42 U.S.C. § 1983 that Whidden violated his Eighth Amendment right to be free from cruel
and unusual punishment by failing to protect Doe from sexual assault by his cellmate. We
review an award of summary judgment de novo, resolving all ambiguities and drawing all
reasonable inferences in favor of the non-movant, and we will affirm only if the record
reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir.
2011). We assume the parties’ familiarity with the underlying facts and the record of prior
proceedings, which we reference only as necessary to explain our decision to affirm.
1. Constitutional Violation
Doe submits that the district court erred in ruling that his supervisory claim against
Whidden failed as a matter of law because he did not adduce evidence sufficient to
demonstrate any constitutional violation by Whidden or her subordinates. To
demonstrate an Eighth Amendment violation, a prisoner must show both that (1) his injury
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was “sufficiently serious,” and (2) prison officials acted with “deliberate indifference” to
his safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see id. at 837–38 (noting that
deliberate indifference inquiry is subjective, requiring awareness of facts from which
inference could be drawn that substantial risk of serious harm existed). It was on the
second element that the district court found Doe’s claim to fail. In urging otherwise, Doe
argues that MYI officials housed him with a “known sexual predator.” Appellant’s Br.
15. But Doe has failed to adduce evidence that any assignment error rose above the level
of negligence, an omission that is fatal to his claim. See Farmer v. Brennan, 511 U.S. at
835 (noting that deliberate indifference requires more blameworthy mental state than
negligence).
Moreover, Doe has not shown that any assignment error by the unidentified
designating official is attributable to Whidden. Assuming arguendo that Colon v.
Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), still identifies the standards for establishing
§ 1983 liability of a supervisory defendant for the misdeeds of subordinates,1 Doe needed
to present evidence sufficient to support a finding that Whidden (1) was a direct participant
in the room assignment, (2) failed to remedy known constitutional error in such
1
We need not decide how the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662
(2009), affected the standards for establishing supervisory liability as articulated in Colon
v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995), as Doe has not adduced sufficient evidence to
show personal involvement under either standard. See Grullon v. City of New Haven,
720 F.3d 133, 139 (2d Cir. 2013) (noting possibility that Ashcroft v. Iqbal “heightened the
requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations” but concluding that complaint failed adequately to plead
supervisor’s personal involvement even under Colon v. Coughlin standards).
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assignments, (3) created “a policy or custom under which unconstitutional practices
occurred, or allowed the continuance of such a policy or custom,” (4) was grossly negligent
in supervising subordinate MYI officials who made the housing assignment, or (5) showed
deliberate indifference to MYI inmates’ rights by not acting on information indicating
unconstitutional assignments. Colon v. Coughlin, 58 F.3d at 873. Insofar as Doe asserts
gross negligence from Whidden’s failure to train MYI employees in the state’s Sexual
Assault Prevention Policy, his contention is essentially conclusory. See Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (noting that non-moving parties
“must provide more than conclusory allegations to resist a motion for summary
judgment”). Doe has adduced no evidence as to specific deficiencies in the overall
training of designating officials that would have avoided the challenged assignments. See
Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir. 2004) (“It is
impossible to prevail on a claim that the . . . training program was inadequate without any
evidence as to . . . how better or different training could have prevented the challenged
conduct . . . .”). Much less has he adduced any expert opinion indicating that Whidden’s
conduct in alerting subordinates to the Sexual Assault Prevention Policy fell so far below
the training responsibilities of a warden in her situation as to manifest gross negligence or
deliberate indifference. See Poe v. Leonard, 282 F.3d 123, 142 (2d Cir. 2002) (holding
that supervisor’s liability depended on showing that supervisor “knew or should have
known that there was a high degree of risk that [subordinate would commit the violative
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conduct], but either deliberately or recklessly disregarded that risk by failing to take action
that a reasonable supervisor would find necessary to prevent such a risk, and that failure
caused a constitutional injury”).
To the extent Doe argues that Whidden’s deposition testimony raises questions of
fact that could support her supervisory liability under § 1983, counsel acknowledges that
the deposition transcript was never before the district court. “[A]bsent extraordinary
circumstances, federal appellate courts will not consider rulings or evidence which are not
part of the trial record.” International Bus. Mach. Corp. v. Edelstein, 526 F.2d 37, 45 (2d
Cir. 1975); accord Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112,
124 (2d Cir. 2010). We identify no such extraordinary circumstances here and, thus, do
not consider the belatedly submitted transcript.
Rather, on review of the record before the district court, we conclude that summary
judgment was correctly entered in favor of Whidden.
2. Denial of Leave To Amend
Doe further challenges the district court’s sua sponte determination that Doe would
not be entitled to amend his complaint to add as a defendant the MYI employee who made
the challenged cell assignment because: (1) the statute of limitations would have run with
respect to the added party, (2) such amendment could not relate back to the original
complaint, and (3) amendment would prejudice Whidden.
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We generally review a denial of leave to amend for abuse of discretion. See
Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). Doe cannot
demonstrate such abuse here because he never asserted in the district court that he stood
ready to amend the complaint to name the designating employee as a defendant. See
Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred
in failing to grant a request [for leave to amend] that was not made.”). Insofar as Doe
submitted in the district court that he would substitute the designating employee for
Whidden, whatever further consideration that might warrant with respect to the timeliness
of any action against the designating official, it does not support maintaining this action
against Whidden. See generally Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d
442, 446 (2d Cir. 1985) (affirming denial of leave to amend given “that discovery had
already been completed and [defendant] had already filed a motion for summary
judgment”); accord AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d
699, 727 (2d Cir. 2010).
Accordingly, we identify no error in the award of summary judgment to Whidden
without affording leave to amend.
3. Denial of Oral Argument
As for Doe’s complaint that the district court granted summary judgment without
affording him oral argument, a “district court acts well within its discretion in deciding
dispositive motions on the parties’ written submissions without oral argument.” Dotson
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v. Griesa, 398 F.3d 156, 159 (2d Cir. 2005). Thus, “[a] party seeking to reverse a
summary judgment order must demonstrate that it was prejudiced by the court’s refusal to
hear argument.” Fabrikant v. French, 691 F.3d 193, 203 n.9 (2d Cir. 2012) (internal
quotation marks and alterations omitted). Although Doe maintains that issues related to
the statute of limitations and unidentified material facts “could have been reviewed and
amplified at oral argument,” Appellant’s Br. 19, he fails to show that these arguments
would have altered the outcome so as to demonstrate prejudice.
4. Conclusion
We have considered all of Doe’s remaining arguments and conclude that they are
without merit. The judgment of the district court is therefore AFFIRMED.
FOR THE COURT:
CATHERINE O=HAGAN WOLFE, Clerk of Court
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