VIKKI CASH, Plaintiff-Appellant-Cross-Appellee, —v.— COUNTY OF ERIE, PATRICK GALLIVAN, Sheriff, Defendants-Cross-Claimant-Appellees-Cross-Appellants, MARCHON HAMILTON, Defendant-Cross-Defendant.
Docket Nos. 09-4371-cv (L), 09-4707-cv (XAP)
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT
August 18, 2011
August Term, 2010 (Argued: September 2, 2010)
Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.**
** District Judge Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation.
REVERSED and REMANDED.
Chief Judge Jacobs dissents in a separate opinion.
EUGENE B. NATHANSON, Esq., New York, New York, for Plaintiff-Appellant-Cross-Appellee.
THOMAS F. KIRKPATRICK, JR., Erie County Department of Law, Buffalo, New York, for Defendants-Cross-Claimant-Appellees-Cross-Appellants.
REENA RAGGI, Circuit Judge:
It is undisputed that while held in pretrial confinement at the Erie County Holding Center (“ECHC“), plaintiff Vikki Cash was sexually assaulted by a male sheriff‘s deputy, Marchon Hamilton. At issue on this appeal is whether Cash adduced sufficient evidence of municipal liability for this violation of due process to support a jury verdict returned in her favor against Erie County and its then-policy maker, former County Sheriff Patrick Gallivan,
I. Background
A. The Instant Complaint
On December 10, 2003, Cash sued Erie County, the Erie County Sheriff‘s Department, and Sheriff Gallivan in his official capacity, as well as Deputy Hamilton, in New York State Supreme Court for injuries sustained as a result of Hamilton‘s sexual assault on December 17, 2002. Cash asserted, inter alia, (1) a federal due process claim under
Pursuant to
B. Trial
1. Evidence Adduced
a. The Charged Sexual Assault
Trial evidence revealed that on December 17, 2002, while Cash was a pretrial detainee in a female housing unit at ECHC, Deputy Hamilton, acting alone, escorted some female detainees to the recreation center but ordered Cash to remain behind. When Hamilton returned, he grabbed Cash, put his hands over her nose and mouth, forced her into the deputies’ bathroom, and raped her.
Cash reported the assault the next morning, prompting an investigation that led to Hamilton‘s arrest for first-degree rape in violation of
b. Defendants’ Policies To Avoid Sexual Misconduct at ECHC
Defendants submitted that, at the time of Cash‘s rape, policies were in place to prevent such an assault. As Sheriff Gallivan testified at trial, “[a] deputy was prohibited from having any type of relationship, intimate relationship with an inmate. A deputy was prohibited from having any physical contact with an inmate unless authorized by law in the case of justifiable use of force or preventing death or serious injury.” Trial Tr. at 451. These proscriptions are, in fact, mandated by New York state law, which deems persons in the custody of a state or local correctional facility “incapable of consent” to sexual conduct with facility employees.
c. Defendants’ Awareness of Past Sexual Misconduct
Sheriff Gallivan testified that in the years 1998 through 2002, approximately 85,000 prisoners passed through ECHC. See Trial Tr. at 674. In that time, prior to Cash‘s rape, he “only kn[e]w of one” complaint of sexual misconduct involving a male deputy and female detainee at ECHC. Id. at 347.3 That earlier complaint apparently pertained to events that
occurred in mid-January 1999 with respect to another female pretrial detainee at ECHC, Elizabeth Allen. Although Gallivan testified that he could not recall the details of the Allen complaint, he acknowledged that relevant findings would have been reported to him. This was in fact confirmed by documentary evidence addressed or copied to Gallivan.
This documentary evidence revealed an internal affairs investigation of Allen‘s claim that on or about January 15, 1999, a male guard, Deputy Gary Morgan, had engaged her in sexual intercourse, and that she had a condom to prove it. When interviewed, Allen revised her account, stating that while alone with Deputy Morgan, the two had engaged in various sexual acts just short of intercourse for which she expected to receive extra commissary items. Allen alleged that she had previously engaged in sexual activity with Morgan, as well as other guards, but lacked any corroborating physical evidence of such encounters. She further reported that, on a number of occasions, she exposed her breasts and fondled herself in front of male guards in exchange for cigarettes or other commissary items.
When questioned, Morgan initially falsely stated that he had allowed Allen out of her cell on January 15, 1999, in violation of her “keep-lock” status, simply to allow her to retrieve cleaning equipment, and that no sexual activity occurred at that time. He later revised this account, stating that when released from her cell, Allen had exposed herself to him, which he knew she had a history of doing in front of male guards. He stated that, in the
The Allen investigation report, addressed to Gallivan, was skeptical of Morgan‘s denial and found “likely . . . sexual contact” between the guard and Allen. Mem. from Thomas Staebell to Patrick Gallivan, Case Report #99-09: On-Duty Conduct of Deputy Gary Morgan 1 (Apr. 1, 1999). Nevertheless, the report determined that such a charge could not be sustained in light of Allen‘s questiоnable veracity. The report concluded that Morgan could be found clearly to have violated ECHC policy only with respect to allowing a keep-lock prisoner out of her cell, failing to report Allen‘s exhibitionist behavior, and lying to investigators at his initial interview. It recommended thirty days’ suspension. Instead, the Sheriff‘s Department suspended Morgan for only three days, which punishment he was permitted to satisfy by surrendering three days of compensatory time. The department cautioned Morgan that repetition of the conduct at issue could result in harsher discipline, including dismissal.
Gallivan testified that on March 11, 1999, in response to the Allen complaint and “highly publicized incidents” at other New York correctional facilities, Trial Tr. at 383, ECHC Superintendent H. McCarthy Gipson issued a one-page memorandum entitled “Sexual Conduct,” reminding facility personnel of ECHC‘s “no-contact” policy. The memorandum stated as follows:
Sexual conduct between Staff and Inmates is STRICTLY PROHIBITED, by the New York State Penal Law Article 130.4 Per the NYS Penal Law, inmates are not capable of consenting to any type of sexual conduct between an employee exercising authority over them. The only permissible conduct is that which is within the scope of your regular duties and would not be considered sexual in nature.
The Erie County Holding Center encourages peer and supervisory reporting. Any Holding Center employee with information concerning inappropriate conduct, (other than criminal), on the part of another employee is encouraged to bring this to the attention of an appropriate supervisor. Wrongful conduct could be an embarrassment to the entire department. Furthermore, early discovery and intervention on the part of supervision could prevent further misconduct and decrease administrative sanctions.
. . .
Any reports of misconduct will be thoroughly investigated.
Mem. from H. McCarthy Gipson to ECHC Personnel (Mar. 11, 1999) (“Gipson Memorandum“). Gallivan explained that the Gipson Memorandum was issued to “prevent what happened in other facilities from happening at the holding center,” Trial Tr. at 470, and “to make clear to people [that] even though you‘ve been trained in the policy and procedure, even though you know these things exist, be assured that it cannot take place, we will do something about it,” id. at 384.
Thomas Frame, a corrections consultant who had worked as a Pennsylvania prison warden for twenty-four years, testified for Cash as an expert witness. Frame pronounced it “bad policy” for ECHC to allow male guards to be alone and unmonitored with female prisoners. Id. at 531. He explained that such a practice jeopardized the safety of female prisoners because the male guard “has authority over the inmate and . . . can direct that inmate to do almost anything he wants.” Id. at 532. Frame testified that “good and accepted practice” is to pair a female officer with a male officer whenever direct interaction with a female prisoner is required. Id. at 533. He further testified that the Allen complaint should have alerted defendants to the need for such a policy. See id. Frame opined that the Gipson Memorandum was an inadequate response to the Allen complaint because it failed to “remove the situation” posing a risk to female prisoners, i.e., allowing a single unmonitored male deputy to interact with female prisoners. Id. at 534. Defendants offered no contrary expert opinion.
2. Jury Charge and Verdict
Upon the close of evidence, defendants moved for judgment as a matter of law. See
The district court instructed that a “policy” could be found if the evidence showed a failure to “supervise their subordinates amounting to deliberate indifference to the rights of those who came in contact with municipal employees.” Id. at 1010. “Mere negligence” was insufficient to establish deliberate indifference. Id. Rather, deliberate indifference required a showing that Gallivan “knew of and disregarded an excessive risk to the plaintiff‘s health and safety.” Id. With respect to causation, the court instructed that Cash must prove that defendants’ actions or inaction were the “proximate cause” of her injury, i.e., that they were “a substantial factor in bringing about [her] injury” and that such injury “was a reasonably foreseeable consequence” of defendants’ conduct. Id. at 1011.
A special verdict form asked the jury sequentially to consider three questions relevant to the § 1983 claim: (1) “Did Marchon Hamilton violate Vikki Cash‘s right to personal security guaranteed by the Due Prоcess Clause of the Fourteenth Amendment of the Constitution on December 17, 2002?“; if so, (2) “Was the violation of her constitutional rights proximately caused by a custom, policy, or practice of the County of Erie?“; and, if so, (3) “Did Vikki Cash suffer injury as a result of the violation of her constitutional rights?” Special Verdict Form at 1-2. As to the negligence claim, the verdict form asked: (4) “Was
On September 26, 2008, the jury answered all three questions pertaining to the § 1983 claim in the affirmative, but found that Sheriff Gallivan was not negligent. See Trial Tr. at 1032-33. The jury awarded Cash $500,000 in compensatory damages. See id. at 1034.
C. Post-trial Motions and Judgment
Before the jury was discharged, the district court inquired whether either party had any motions as to the verdict. When defendants sought additional time to consider post-trial motions, the court asked if they had “any motions directly relevant to the verdict before [it] discharge[d] the jury.” Id. at 1035. Defendants’ counsel responded: “Not at this time.” Id. On December 22, 2008, defendants renewed their motion for judgment as a matter of law, see
On March 10, 2009, the district court granted defendаnts’ Rule 50 motion and denied their Rule 59 motion as moot. See Decision & Order, Cash v. Cnty. of Erie, No. 04 Civ. 182 (W.D.N.Y. Mar. 10, 2009). The court determined that, although ample evidence supported the existence of a County policy permitting male deputies to be alone and unmonitored with female prisoners at ECHC, that policy was not itself unconstitutional. Further, the court determined that Cash had failed to adduce sufficient evidence of prior incidents of sexual
These cross-appeals followed.
II. Discussion
A. Defendants Were Not Entitled to Judgment As a Matter of Law
1. Standard of Review
We review de novo a district court‘s decision to grant a Rule 50 motion for judgment as a matter of law, see Kinneary v. City of New York, 601 F.3d 151, 155 (2d Cir. 2010), applying the same standard as the district court, see Zellner v. Summerlin, 494 F.3d 344, 371 (2d Cir. 2007). That standard generally imposes a heavy burden on a movant, who will be awarded judgment as a matter of law only when “a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.”
2. Municipal Liability Under § 1983
Title
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .
A municipality may be liable under § 1983 only “if the governmental body itself ‘subjects’ a person to a deprivation of rights or ‘causes’ а person ‘to be subjected’ to such deprivation.” Connick v. Thompson, 131 S. Ct. 1350, 1359 (2011) (quoting Monell v. Dep‘t of Soc. Servs., 436 U.S. at 692). In other words, municipalities are “responsible only for ‘their own illegal acts,‘” and cannot be held “vicariously liable under § 1983 for their employees’ actions.” Id. (quoting Pembaur v. Cincinnati, 475 U.S. 469, 479 (1986))
A municipal policy may be pronounced or tacit and reflected in either action or inaction. In the latter respect, a “city‘s policy of inaction in light of notice that its program will cause constitutional violations is the functional equivalent of a decision by the city itself to violate the Constitution.” Connick v. Thompson, 131 S. Ct. at 1360 (internal quotation marks omitted); see also City of Canton v. Harris, 489 U.S. at 396 (O‘Connor, J., concurring in part and dissenting in part) (“Where a § 1983 plaintiff can establish that the facts available to city policymakers put them on actual or constructive notice that the particular omission is substantially certain to result in the violation of the constitutional rights of their citizens, the dictates of Monell are satisfied.“). Consistent with this principle, “where a policymаking official exhibits deliberate indifference to constitutional deprivations caused by subordinates, such that the official‘s inaction constitutes a deliberate choice, that acquiescence may be properly thought of as a city policy or custom that is actionable under § 1983.” Amnesty Am. v. Town of W. Hartford, 361 F.3d 113, 126 (2d Cir. 2004) (Sotomayor, J.) (internal quotation marks omitted).
As the Supreme Court has cautioned, “deliberate indifference” is “‘a stringent standard of fault,‘” Connick v. Thompson, 131 S. Ct. at 1360 (quoting Board of Cnty. Comm‘rs v. Brown, 520 U.S. at 410), and necessarily depends on a careful assessment of the facts at issue in a particular case, see generally Amnesty Am. v. Town of W. Hartford, 361 F.3d at 128 (holding that deliberate indifference determination “need not rely on any particular factual showing“). The operative inquiry is whether those facts demonstrate that the policymaker‘s inaction was the result of “conscious choice” and not “mere negligence.” Id. (internal quotation marks omitted); see City of Canton v. Harris, 489 U.S. at 389. Thus, deliberate indifference may be inferred where “the need for more or better supervision to protect against constitutional violations was obvious,” Vann v. City of New York, 72 F.3d 1040, 1049 (2d Cir. 1995), but the policymaker “fail[ed] to make meaningful efforts to address the risk of harm to plaintiffs,” Reynolds v. Giuliani, 506 F.3d 183, 192 (2d Cir. 2007); see also Board of Cnty. Comm‘rs v. Brown, 520 U.S. at 407 (holding that deliberate indifference requires proof that “municipal actor disregarded a known or obvious consequence of his action” (internal quotation marks omitted)); Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992) (framing deliberate indifference inquiry in three parts: (1) policymaker knows “to a moral certаinty” that its employees will confront a given situation; (2) either situation presents employees with difficult choice that will be made less so by training or supervision, or there is a record of employees mishandling situation; and
3. Trial Evidence Was Not Insufficient as a Matter of Law To Permit a Reasonable Jury To Find Municipal Liability Based on Deliberate Indifference
In moving for Rule 50 relief from the jury verdict in favor of Cash, defendants did not dispute that Cash‘s constitutional right to due process was violated when, while in pretrial confinement at ECHC, she was raped by a guard; that the guard was then acting under color of state law; or that Sheriff Gallivan was the relevant policymaker for purposes of assessing municipal liability. Defendants’ motion thus focused on a single issue: the sufficiency of the evidence to demonstrate that Gallivan acted with deliberate indifference to the risk that Cash would be sexually assaulted by an unmonitored guard.
In assessing defendants’ sufficiency challenge, we review the trial evidence not only in the light most favorable to Cash, see Zellner v. Summerlin, 494 F.3d at 371, but also mindful that defendants operated under an “affirmative duty to protect those held in their custody,” Villante v. Dep‘t of Corr., 786 F.2d 516, 519 (2d Cir. 1986); cf. DeShaney v. Winnebago Cnty. Dep‘t of Soc. Servs., 489 U.S. 189, 199-200 (1989) (“[W]hen the State takes a person into its custody and hоlds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.“); Caiozzo v. Koreman, 581 F.3d 63, 69 (2d Cir. 2009) (“[A] person detained prior to conviction receives protection against mistreatment at the hands of prison officials under . . . the Due Process Clause of the Fourteenth Amendment if held in state custody.“).
In this case, defendants cannot claim that the evidence was insufficient to alert them to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC. That risk is acknowledged in New York state law, which pronounces prisoners categorically incapable of consenting to any sexual activity with guards, see
is not whether defendants should have realized the need for such a prohibition, but whether defendants could rely simply on guards’ awareness of these criminal laws (and ECHC policies implementing them) to deter sexual exploitation of prisoners, or whether defendants had reason to know that more was required to discharge their affirmative protective duty, specifically, precluding or at least monitoring one-on-one contact between guards and prisoners.
In concluding that trial evidence was legally insufficient to support the latter finding, the district court observed that a policy permitting unmonitored one-on-one interactions between a guard and a prisoner of different sexes was not itself unconstitutional, and that the lack of prior sexual assaults by male guards of female prisoners failed to alert Gallivan to the fact that such a policy posed a risk of rape to Cash. We take no exception to the district court‘s first observation, see generally Hovater v. Robinson, 1 F.3d 1063, 1068 (10th Cir. 1993) (rejecting “conclusion that every male guard is a risk to the bodily integrity of a female inmate whenever the two are left alone“), but we cannot agree with its second.
To explain, we begin by noting that the pattern ordinarily necessary to prove deliberate indifference in the context of a failure-to-train claim does not neatly transfer to this case. See generally Connick v. Thompson, 131 S. Ct. at 1359 (observing that “municipality‘s culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure to train“). A duty to train arises so that subordinates entrusted with the discretionary exercise
The deliberate indifference concеrn in this case, however, is not with a failure to train prison guards to distinguish between permissible and impermissible sexual contact with prisoners. Nor is it with providing sufficient supervision to ensure that guards make correct choices in this respect. New York affords guards no discretion respecting sexual contact with prisoners; the state‘s proscription of such contact is absolute. Thus, the deliberate indifference concern here is with the adequacy of defendants’ own actions to prevent sexual contact between guards and prisoners consistent with their affirmative duty to protect prisoners in their custody.
Mindful of this affirmative duty to protect, a reasonable jury could have concluded that the 1999 Allen complaint would have alerted Gallivan to the fact that mere proscriptions on sexual contact between guards and prisoners had proved an insufficient deterrent to sexual exploitation. The Allen investigation report indicated, at best, that a female prisoner repeatedly had engaged in sexual exhibitionism before various guards, none of whom had reported the activity and some of whom may have paid for it with commissary items. At worst, the report indicated that male guards had engaged a female prisoner in a variety of
In concluding otherwise, the district court noted that Cash had been sexually assaulted, and there was no evidence that the Allen incident or those arising in other institutions were assaultive. This reasoning overlooks the fact that, as a matter of New York state law, any sexual contact between a guard and a prisoner is deemed non-consensual due to the inherent power differential between guards and prisoners. See
In addition to explaining why the Gipson Memorandum provided inadequate protection, Cash’s expert witness testified that accepted prison practice for deterring sexual misconduct between male guards and female prisoners was to prohibit unmonitored one-on-one interactions. To the extent ECHC policies permitted such interactions, the expert opined that the Allen complaint should have served as a “red light” alerting defendants that “this is not a good policy,” and that it was necessary to eliminate the conditions conducive to the prohibited activity. Trial Tr. at 533-34. We have no occasion to consider the possibility of contrary views; defendants offered no such evidence. Thus, we must assume that the jury credited the opinion of Cash’s expert and permissibly relied on it in deciding that Gallivan’s failure to do more than issue the Gipson Memorandum demonstrated deliberate indifference to the risk of continued and possibly aggravated sexual misconduct posed by unmonitored one-on-one contact between male guards and female prisoners. See Vann v. City of New York, 72 F.3d at 1049 (recognizing that deliberate indifference may be shown “through expert testimony that a practice condoned by the defendant municipality was contrary to the practice of most police departments and was particularly dangerous because it presented an unusually high risk that constitutional rights would be violated” (internal quotation marks omitted)).
We must further assume that the jury drew adverse inferences of deliberate indifference from defendants’ token response to the misconduct detailed in the Allen
In so construing the record, we do not suggest that a reasonable jury could not have viewed this trial evidence more favorably to defendants. Indeed, this case presents a close
B. Defendants Are Not Entitled to a New Trial
Defendants contend that if the judgment in their favor is reversed, the district court’s denial of their Rule 59 motion for a new trial should also be reversed. They submit that a new trial is warranted because (1) Question Two on the special verdict form (a) improperly conflated the policy and causation elements of the § 1983 claim, (b) misstated the causation element, and (c) failed to allow the jury to consider whether Deputy Hamilton was the sole cause of Cash’s injuries; and (2) the jury’s verdicts as to Cash’s federal and state claims were
1. Special Verdict Form
The formulation of special verdict questions rests in the sound discretion of the trial judge, see Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 141 (2d Cir. 2007), and will warrant reversal only if the questions mislead or confuse the jury, or inaccurately frame the issues to be resolved, see Fidelity & Guar. Ins. Underwriters, Inc. v. Jasam Realty Corp., 540 F.3d 133, 139 (2d Cir. 2008). In mаking this assessment, we must read challenged questions “in conjunction with the judge’s charge to the jury.” Shah v. Pan Am. World Servs., Inc., 148 F.3d 84, 96 (2d Cir. 1998) (internal quotation marks omitted).
To preserve for appeal any objection to the form or substance of questions on a special verdict form, a party must object before the jury has retired to deliberate. See
a. Conflating Policy and Causation Elements
Question Two on the special verdict form asked the jury: “Was the violation of [Cash’s] constitutional rights proximately caused by a custom, policy, or practice of the County of Erie?” Defendants contend that they properly objected to this question when counsel stated: “The problem I have with it is this is a combination that combines the liability and the causation in one question.” Trial Tr. at 907. Counsel’s statement, however, must be viewed in context, which was to urge substitution of defendants’ own proposed version of Question Two: “Did the County of Erie and Sheriff Patrick Gallivan by virtue of a policy or custom violate[] the plaintiff’s constitutional rights?” Id. As the district court recognized, the alternative formulatiоn itself implicitly combined the policy and causation elements of Cash’s municipal liability claim: “I think that is essentially what [the court’s proposed Question Two] says.” Id. Defendants never clarified that they sought to have the policy and causation elements of a § 1983 claim put to the jury in two distinct questions. Certainly, they never presented the district court with proposed separate interrogatories. See generally Tuttle v. Equifax Check, 190 F.3d 9, 15-16 (2d Cir. 1999) (holding objection to composite verdict form waived where plaintiff “never asked that the district court prepare separate interrogatories for each prong” and “never objected to the charge on this ground”). Accordingly, we conclude that defendants’ objection was not stated with sufficient clarity to preserve it for appellate review.
b. Reference to “Proximate Cause” Rather than “Moving Force”
Defendants identify error in the district court’s use of “proximate cause” rather than “moving force” in Question Two to identify Cash’s сausation burden. Because they point to nothing in the record indicating that they specifically requested that the district court use the latter phrase in Question Two, this argument is also waived. In any event, defendants
c. Failure To Ask Whether Hamilton Was Sole Cause of Injury
Defendants’ contention that the verdict form was deficient in failing to inquire whether Deputy Hamilton was the sole cause of Cash’s injuries merits little discussion. Because defendants cite to nothing in the record indicating that they requested that such an inquiry be made on the special verdict form, the argument is not preserved for appellate review. Even if we reached this claim, however, we would identify no abuse of discretion. Question Two must be considered together with the district court’s instruction that the County could not be held liable solely because Hamilton was its employee or without proof that the constitutional violation resulted from a County policy, practice, or custom. See Trial Tr. at 1009. This accurately framed the issue to be decided. Had the jury determined that Hamilton was solely responsible for Cash’s injuries, it would have answered Question Two in the negative. Indeed, defendants were free to argue for such a determination in their summation to the jury.
We note, however, that the district court did err when it instructed the jury that Gallivan must have been subjectively aware of a risk of sexual assault to find deliberate indifference in this context. See Trial Tr. at 1010 (instructing that Gallivan “must have both been aware of the facts from which the inference could be drawn that a substantial risk of serious harm to the plaintiff existed, and also must have drawn such an inference” (emphasis added)). “Deliberate indifference” is defined differently for purposes of proving a prison conditions claim under the Eighth or Fourteenth Amendment in the first instance, and for establishing municipal liability for that violation thereafter. In the former context, deliberate indifference is a subjective standard requiring proof of actual knowledge of risk by the prison official. See, e.g., Caiozzo v. Koreman, 581 F.3d at 70-71. By contrast, for purposes of establishing municipal liability, deliberate indifference is an objective standard that is satisfied if the risk is so obvious that the official should have known of it. See Vann v. City of New York, 72 F.3d at 1049; see generally Farmer v. Brennan, 511 U.S. at 840-42 (explaining “deliberate indifference” standard in these different contexts). Because the jury returned a verdict in favor of Cash on the § 1983 claim notwithstanding the fact that the district court’s charge on deliberate indifference held her to a higher subjective standard of proof, any error in this regard was necessarily harmless.
2. Inconsistent Verdicts
Citing
First, the challenge was waived by defendants’ failure to raise an inconsistency objection before the district court discharged the jury. See, e.g., Kosmynka v. Polaris Indus., Inc., 462 F.3d 74, 83 (2d Cir. 2006) (“It is well established that a party waives its objection to any inconsistency in a jury verdict if it fails to object to the verdict prior to the excusing of the jury.”); see also Denny v. Ford Motor Co., 42 F.3d 106, 111 (2d Cir. 1994) (suggesting case-by-case application of waiver principles to Rule 49(a) challenges). While defendants contend that they preserved this challenge through earlier objections to the verdict form and jury charge, they point to nothing in the record indicating that they timely alerted the district court to the possibility that the verdict form or jury charge might lead to inconsistent verdicts. See Fabri v. United Techs. Int’l, Inc., 387 F.3d 109, 119 (2d Cir. 2004) (holding that when verdict form or jury charge might lead to inconsistent verdicts, “party must object before the
Moreover, it is not clear that Rule 49(a) applies here. Although defendants characterize the jury’s responses on the verdict form as “special verdicts,” and the form is labeled “Special Verdict Form,” the questions on the form, viewed in light of jury instructions that specifically identified certain questions as pertaining to the § 1983 claim and others as pertaining to the negligence claim, is reasonably construed to solicit a general verdict with interrogatories on each of Cash’s two theories of liability. See
In any event, even if the jury’s responses were “special verdicts,” we identify no irreconcilable inconsistency raising Seventh Amendment concerns. See Munafo v. Metro. Transp. Auth., 381 F.3d 99, 105 (2d Cir. 2004) (instructing that only where special verdicts are “ineluctably inconsistent” and cannot be “harmonized rationally” does Seventh Amendment require that judgment be vacated and new trial ordered (internal quotation marks and emphasis omitted)); Harris v. Niagara Mohawk Power Corp., 252 F.3d 592, 598 (2d Cir. 2001) (holding that “reviewing court must adopt a view of the case, if there is one, that resolves any seeming inconsistency” (internal quotation marks omitted)). Defendants submit that it was inconsistent for the jury to find, in response to Question Four, that Gallivan was not negligent in providing fоr Cash’s safety at the same time that it found, in response to Question Two, that Gallivan was responsible for a County policy of deliberate indifference to Cash’s safety. We disagree. The jury was properly instructed that “[m]ere negligence is not enough” to support Cash’s theory of a municipal policy of deliberate indifference, the second element of her § 1983 claim. Trial Tr. at 1010. Thus, as the district court aptly observed, the jury rationally could have concluded that if, as it found, Gallivan was deliberately indifferent, he was not simply negligent. A failure to understand that the higher standard necessarily subsumes the lower may have inured to Gallivan’s benefit on the negligence claim, but it did not produce irreconcilably inconsistent verdicts.
To summarize, we conclude as follows:
- Defendants were not entitled to judgment as a matter of law because the evidence was sufficient to support the jury verdict in favor of plaintiff on a municipal liability claim under § 1983. Because defendants owed plaintiff an affirmative duty of care, and because any sexual contact between a guard and a prisoner is absolutely proscribed by New York state law, a reasonable jury could have found that once defendants learned that guards were violating an absolute proscription in any respect, defendants’ actions to prevent future violations were so deficient as to manifest deliberate indifference to a risk of the full range of proscribed sexual conduct, including the sexual assault suffered by plaintiff.
- Defendants are not entitled to a new trial because the errors they assert in Question Two of the special verdict form and the verdict itself were not properly preserved for appellate review. In any event, the verdict form considered together with the jury instructions adequately instructed the jury as to the elements of a municipal policy and causation, and the verdicts holding defendants liable under § 1983 but absolving Sheriff Gallivan for state law negligence were not irreconcilably inconsistent.
Accordingly, the judgment in favor of defendants on the § 1983 claim is REVERSED, and the case is REMANDED with instructions to enter judgment on that claim consistent with the jury verdict in favor of Cash.
DENNIS JACOBS, Chief Judge, dissenting:
1 I respectfully dissent.
2 Cash asserts a claim for failure to supervise. The 3 analytical framework for such a claim is set out in Walker 4 v. City of New York, 974 F.2d 293, 297-98 (2d Cir. 1992). 5 Cash concedes that Walker controls, arguing that “the 6 present case meets the three requirements for liability this 7 Court delineated in Walker.” Cash Br. at 37. Under Walker, 8 the plaintiff must show: first, a policymaker knew to a 9 “moral certainty” that an employee would confront a given 10 situation; second, the situation presents the employee with 11 a difficult choice or there was “a history оf employees 12 mishandling the situation”; third, the wrong choice by the 13 employee would frequently “deprive citizens of 14 constitutional rights.” Walker, 974 F.2d at 297-98.
15 Perhaps recognizing that there was no “history of 16 employees mishandling the situation” at the Erie County 17 Holding Center (“ECHC”), the majority sidesteps Walker by 18 framing the issue as “the adequacy of defendants’ own 19 actions to prevent sexual contact between guards and 20 prisoners consistent with their affirmative duty to protect 21 prisoners in their custody.” Op. at 21. However, that is a 22 claim of failure to supervise--one that fails the stringent 23 test set out in Walker.
10 The female plaintiff was raped by a male guard. The 11 jury considered whether the County and the sheriff were 12 deliberately indifferent to the risk that prisoners would be 13 sexually assaulted by guards. But the opinion re-casts the 14 relevant risk in general and expansive terms: the “risk of 15 sexual exploitation posed by male deputies guarding female 16 prisoners.”1 Op. at 19.
17 Nothing supports even this generalized risk other than 18 the complaint of inmate Allen, three years earlier--a
15 Allen conceded that she knowingly lied when 16 she alleged that: (1) she had sexual intercourse 17 with the guard; (2) a female guard was complicit; 18 (3) she had physical evidence--a condom--that 19 could be linked to the guard. Joint Appendix at 20 126-27.
21
22 Allen had a history of threatening guards and 23 making false allegations to “get even” with them 24 for “not getting her what she wanted.” Id. at 25 115, 120. She racked up 28 violations of prison 26 rules in the 30 days around the incident. Id. at 27 115.
28
29 The investigator found that Allen’s allegation 30 was made at least partly out of self-interest: 31 “Ms. Allen stated she had the [condom] and she
1 wanted to know what was ‘in it’ for her”; and her 2 statement to investigators was in exchange for the 3 potential of a statement by the prison 4 superintendent to the judge on her behalf. Id. at 5 118, 128. 6
7 She conceded that she seduced the guard: “[H]e 8 didn’t force hisself on me or notin’. An, I 9 totally seduced him. I mean, I totally went out 10 my way to get him.” Id. at 142. “Um, when I 11 found out he was interested in me, I made advances 12 at him.” Id. at 130.
13
14 That was her standard practice: “I do put on 15 shows for the officers. . . . [I]f I see dey 16 interested . . . dats when I go [i]n for the kill. 17 I be like, ‘Oh, you like what you see?’ An, I be 18 like, ‘Well give me some cigarettes.’” Id. at 19 141.
20
21 There is no evidence of sexual misconduct by guards at the 22 ECHC prior to Cash’s assault besides these questionable 23 allegations from one inmate, three years earlier--at a 24 facility through which 17,000 inmates pass every year, Trial 25 Tr. at 674.
26 The majority opinion implicitly concedes that the Allen 27 incident may have been insufficient to put the sheriff and 28 the County on notice that Cash might be raped; so the 29 opinion relies as well on evidence that the sheriff was 30 aware of incidents at other New York correctional 31 facilities. Op. at 21.
32 That is adding nothing to nothing. If the evidence in 33 this case amounts to sufficient warning of a criminal sexual
19 The measures taken by defendants to prevent sexual 20 exploitation of inmates were stringent: a no-excuses policy 21 that is integral to training, that is enforced by 22 supervision, that is reinforced by threat of discipline in a 23 written notice, and that was implemented by an investigation
14 Among the absurdities here is that no guard can know 15 when direct contact may become required; in prison, 16 interventions are not always by appointment. And at the 17 risk of being obvious, this policy would either impose 18 enormous incremental costs or would halve the personnel 19 available for supervision of the facility (and thereby 20 increase the risk of prisoner-on-prisoner violence and 21 abuse).
22 In any event, the risk associated with having men and 23 women interact in a closed environment is bred in the bone;
15 * * *
16 Finally, the majority casually discards--in a footnote, 17 without explanation, Op. at 31 n.8--the district court’s own 18 conclusion that the jury charge was deficient and that a new 19 trial was warranted. (The magistrate judge would have sua 20 sponte ordered a new trial had he not awarded judgment as a 21 matter of law to the County and the sheriff. See Decision & 22 Order, Cash v. Cnty. of Erie, No. 04 Civ. 182, at 6 n.5 23 (W.D.N.Y. Mar. 10, 2009).)
Notes
Physical contact (except for required duties),
Intimate contact
ANY Sexual contact
Crude, sexual comments
Touching
Inappropriate touching during searches
Fondling
Observing inmates naked (except for required duties)
Encouraging inmates to show their body or do lewd acts
Any other behavior as it pertains to the Holding Center Code of Conduct, #HC 03.03.00.