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, Second Circuit.
Argued: Sept. 2, 2010. Decided: Aug. 18, 2011.
654 F.3d 324
Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.**
Chief Judge JACOBS dissents in a separate opinion.
Moreover, there is no question that Bayou investors continuously relied on RFA‘s “independent audits” of Bayou‘s financial results. The record indicates multiple instances where investors contacted RFA with questions regarding the Bayou audits and, later, with serious concerns regarding RFA‘s independent status. It is also clear that appellant was keenly aware of the importance to Bayou investors of RFA‘s independence. At various times, appellant stressed to Daniel Marino the importance of the illusion of independence. For example, in his email to Daniel Marino regarding the Benowich letter, appellant stressed that “there is supposed to be independence between [RFA] and the both of you [Daniel Marino and Israel].” Accordingly, we are unwilling to adopt the view that appellant‘s actions did not seriously injure Bayou‘s investors. Whether they were less serious than the actions of Israel and Daniel Marino is essentially irrelevant because, during the period of appellant‘s criminal activity, his acts were essential to Israel and Daniel Marino‘s criminal scheme.
We also disagree with appellant‘s view that his victims’ losses were not foreseeable. Through his handling of the victims’ confirmation statements, appellant knew first-hand the amounts the victims had at stake in the Bayou fraud. No reasonable person in his position could have failed to foresee that the victims who invested in Bayou from January through August of 2005 would ultimately face substantial or even complete loss of their investment.
To summarize, we find no error in the district court‘s conclusion that appellant‘s failure to report the Bayou fraud was both the direct and the proximate cause of the victim investors’ losses.
CONCLUSION
For the foregoing reasons, we affirm.
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, Second Circuit.
Argued: Sept. 2, 2010.
Decided: Aug. 18, 2011.
* The Clerk of Court is directed to amend the caption to read as shown above.
Thomas F. Kirkpatrick, Jr., Erie County Department of Law, Buffalo, NY, for Defendants-Cross-Claimant-Appellees-Cross-Appellants.
** District Judge Jed S. Rakoff of the United States District Court for the Southern District of New York, sitting by designation.
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-policymaker, former County Sheriff Patrick Gallivan, in the amount of $500,000. See
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
Following discovery, defendants and Cash cross-moved for summary judgment. The district court dismissed Cash‘s complaint against the Sheriff‘s Department because it was not a municipal entity distinct from the County, and her claim for punitive damages against the County and Gallivan. See Cash v. Cnty. of Erie, No. 04 Civ. 182, 2007 WL 2027844, at *6 (W.D.N.Y. July 11, 2007).2 In all other respects, the district court denied the parties’ summary judgment motions in light of disputed issues of fact as to municipal liability. See id. at *4-5.
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
Further, ECHC policy required that at the start of a new shift, a deputy of one sex announce his or her presence on a unit housing prisoners of another sex. No such announcement was required, however, when a deputy conducted periodic unannounced inspections of housing units, during which prisoners undressing, showering, or using the toilets might be viewed naked. No County policy prohibited a single deputy of one sex from being alone with a prisoner of another sex. Nor were any monitoring devices, such as surveillance cameras, ever employed to supervise such one-on-one interactions.
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 Mor-
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 course of trying to return Allen to her cell, he “may” have touched her breasts but insisted that any such contact was unintentional and not sexual.
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 questionable 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 еmployee 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.
d. Expert Testimony Regarding Accepted Practices To Deter Sexual Misconduct
Thomas Frame, a corrections consultant who had worked as a Pennsylvania prison warden for twеnty-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
A special verdict form asked the jury sequentially to consider three questions relevant to the
On September 26, 2008, the jury answered all three questions pertaining to the
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 defendants’ 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 assault by male guards of female prisoners at ECHC to place Sheriff Gallivan and the County on notice that such a policy presented a substantial risk of sexual harm to female prisoners. Absent such evidence, the district court concluded that the record failed as a matter of law to support a reasonable jury finding of deliberate indifference. Accordingly, the district court set aside the jury‘s verdict and entered judgment in favor of defendants.
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 Kin-neary 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
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 certainty” 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) wrong choice by employees will frequently cause deprivation of constitutional rights (internal quotation marks omitted)).
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
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, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (“[W]hen the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a correspondent duty to assume some responsibility for his safety and general wellbeing.“); 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.“).
The existence of an affirmative duty to protect does not mean that any harm that befalls a person in state custody necessarily manifests a municipal policy of deliberate indifference to prisoner safety. But an affirmative duty, by its nature, implies a proactive responsibility to assess the risks of harm presented by given circumstances and to take reasonable preventive measures in advance of harm occurring, not simply to respond to harms only after they occur. Cf. Farmer v. Brennan, 511 U.S. 825, 845, 114 S.Ct. 1970, 128 L.Ed.2d 811 (1994) (observing that deliberate indifference showing in parallel Eighth Amendment context “does not require a prisoner seeking a remedy for unsafe conditions to await a tragic event such as an actual assault before obtaining relief” (internal quotation marks and brackets omitted)).
In this case, defendants cannot claim that the evidence was insufficient to alеrt 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
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 of municipal power can distinguish between lawful and unlawful choices. Because the exercise of such discretion can arise in myriad circumstances, the “nuance” of a particular training need may only become apparent to municipal policymakers after a pattern of violations arises in substantially similar circumstances. Id. at 1363. The same conclusion obtains with respect to the need to supervise subordinates who must make a range of discretionary choices in the exercise of delegated municipal power.
The deliberate indifferеnce concern 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 more intimate sexual activities. Indeed, investigators indiсated that, despite Allen‘s dubious credibility, they thought it likely that such prohibited sexual activity had in fact occurred in Allen‘s case. A jury could have concluded that this investigative determination should have alerted defendants that they could not rely simply on guards’ awareness of a no-tolerance policy to deter sexual misconduct. Likewise, a jury could have determined that Gallivan‘s conceded awareness of “highly publicized incidents” at other New York correctional facilities should further have alerted him to the inadequacy of a mere proscriptive policy to deter guards’ sexual misconduct.
Accordingly, even if Gallivan had no knowledge of prior sexual assaults, it was hardly speculative for a jury to conclude that, at least by 1999, he knew or should have known that guards at ECHC and other local correctional facilities were engaging in proscribed sexual contact with prisoners, and that continued reliance on penal proscriptions alone was insufficient to protect prisoners from the range of harms associated with such misconduct, of which rape is obviously the most serious example. See Walker v. City of New York, 974 F.2d at 297 (observing that even where need for different policy “would not be obvious to a stranger to the situation, a particular context might make the need for training or supervision so obvious that a failure to do so would constitute deliberate indifference“); see also Gonzales v. Martinez, 403 F.3d 1179, 1187 (10th Cir.2005) (holding that evidence of prior non-sexual physical assaults, lapses in jail security, and sexual harassment and intimidation by guards was sufficient to support reasonable inference that sheriff was aware of risk of sexual assault to female inmates to sustain Eighth Amendment deliberate indifference claim). In the context of such an absolute proscription and a duty to protect, knowledge that an established practiсe has proved insufficient to deter lesser misconduct can be found to serve notice that the practice is also insufficient to deter more egregious misconduct. Cf. Amnesty Am. v. Town of W. Hartford, 361 F.3d at 128 (observing that “evidence must establish only that a policymaking official had notice of a potentially serious problem of unconstitutional conduct, such that the need for corrective action or supervision was obvious” (internal quotation marks omitted)).7
In fact, defendants themselves recognized a need for some response to the 1999 incidents at ECHC and other state correctional facilities. This was evidenced by issuance of the Gipson Memorandum. The jury might have inferred therefrom that defendants were not indifferent to the problem of sexual misconduct by guards, but it was not compelled to do so. In making a deliberate indifference assessment, the jury was entitled to rely on unrebutted expert testimony that the Gipson Memorandum‘s reiteration of existing law and ECHC policy was inadequate to protect female prisoners from sexual harm. Indeed, Gallivan himself conceded at trial that the “no-contact” policy referenced in the Gipson Memorandum had been in place at ECHC prior to 1999, yet had failed to prevent the sexual misconduct referenced in the Allen report. See Trial Tr. at 692. As the Supreme Court recently reiterated, “[р]olicymakers’ continued adherence to an approach that they know or should know has failed to prevent tortious conduct by employees may establish the conscious disregard for the consequences of their action—the ‘deliberate indifference‘—necessary to trigger municipal liability.” Connick v. Thompson, 131 S.Ct. at 1360 (internal quotation marks omitted). That observation, made with reference to a claim of inadequate training, applies with no less force to a supervision claim, particularly where defendants operate under an affirmative duty of protection and their employees are absolutely prohibited by the criminal law from engaging in certain conduct.
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 сontrary 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 investigation report. Gallivan testified that he could not even recall whether he ever reviewed the Allen investigation report—which was addressed to him—or only relied on a subordinate‘s account of its contents. See Trial Tr. at 361-62. Nevertheless, rather than follow investiga-
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 quеstion as to how to weigh the evidence advanced to establish deliberate indifference. But it is not a question that we think must be resolved as a matter of law—rather than fact—for the defendants. When the evidence is viewed in the light most favorable to Cash and all inferences are drawn in her favor, a reasonable jury was not compelled to find for defendants. See Zellner v. Summerlin, 494 F.3d at 370-71. Rather, the jury reasonably could have found that defendants knew, by virtue of New York state law, that female prisoners in their custody faced a risk of sexual abuse by male guards; that, by 1999, defendants also knew that a policy simply proscribing all sexual contact between male guards and female prisoners was insufficient to deter such conduct at ECHC; and that, in these circumstances, defendants’ mere reiteration of the proscriptive policy unaccompanied by any proactive steps to minimize the opportunity for exploitation, as for example by prohibiting unmonitored one-on-one interactions between guards and prisoners, demonstrated deliberate indifference to defendants’ affirmative duty to protect prisoners from sexual exploitation. Accordingly, the district court erred in granting defendants judgment as a matter of law.
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
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 making 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 formulation 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 а
Even if we were to conclude otherwise, defendants cannot show that when Question Two is considered in light of the jury charge there was any confusion as to Cash‘s burden to prove both policy and causation. The district court made this clear when it identified policy and causation as distinct elements of the
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 causation 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 cannot demonstrate abuse of discretion because “proximate cause,” although derived from tort law, fairly describes a plaintiff‘s causation burden with respect to a municipal liability claim under
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 а determination in their summation to the jury.
Accordingly, nothing about the district court‘s formulation of Question Two warrants a new trial.
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 сharge might lead to inconsistent verdicts, “party must object before the jury begins its deliberations“); Jarvis v. Ford Motor Co., 283 F.3d at 56-57; see also Kosmynka v. Polaris Indus., Inc., 462 F.3d at 85 (noting that timely objection permits court or opposing party to correct error).
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
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 for 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
III. Conclusion
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 werе 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
DENNIS JACOBS, Chief Judge, dissenting:
I respectfully dissent.
Cash asserts a claim for failure to supervise. The analytical framework for such a claim is set out in Walker v. City of New York, 974 F.2d 293, 297-98 (2d Cir.1992). Cash concedes that Walker controls, arguing that “the present case meets the three requirements for liability this Court delineated in Walker.” Cash Br. at 37. Under Walker, the plaintiff must show: first, a policymaker knew to a “moral certainty” that an employee would confront a given situation; second, the situation presents the employee with a difficult choice or there was “a history of employees mishandling the situation“; third, the wrong choice by the employee would frequently “deprive citizens of constitutional rights.” Walker, 974 F.2d at 297-98.
Perhaps recognizing that there was no “history of employees mishandling the situation” at the Erie County Holding Center (“ECHC“), the majority sidesteps Walker by framing the issue as “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.” Op. at 336. However, that is a claim of failure to supervise—one that fails the stringent test set out in Walker.
In finding a basis for a jury verdict adverse to Erie County and the sheriff (whom the jury found was not even negligent), the majority opinion relies on notice that existing measures were insufficient, and the availability of a measure that would be more effective. I disagree on both scores. Taking its holdings together, the opinion can be read (and will be read) to impose strict liability on municipalities and policymakers for any incidents that arise in a prison.
Nothing supports even this generalized risk other than the complaint of inmate Allen, three years earlier—a complaint that was investigated, but that yielded ambiguous conclusions establishing no more than that the inmate exhibited herself sexually to guards who did not report her, and that one or more guards gave her commissary items. One guard was found to have violated policy and was given a threе-day suspension without pay. Thus the Allen complaint was not ignored: It provoked an investigation; and the investigation resulted in discipline. This is not deliberate indifference to sexual exploitation, and far less is it deliberate indifference to the risk of rape. In faulting the sheriff and County for handling the Allen complaint in a way that could evidence deliberate indifference to rape, the opinion elides critical particulars of that complaint:
Allen conceded that she knowingly lied when she alleged that: (1) she had sexual intercourse with the guard; (2) a female guard was complicit; (3) she had physical evidence—a condom—that could be linked to the guard. Joint Appendix at 126-27.
Allen had a history of threatening guards and making false allegations to “get even” with them for “not getting her what she wanted.” Id. at 115, 120. She racked up 28 violations of prison rules in the 30 days around the incident. Id. at 115.
The investigator found that Allen‘s allegation was made at least partly out of self-interest: “Ms. Allen stated she had the [condom] and she wanted to know what was ‘in it’ for her“; and her statement to investigators was in exchange for the potential of a statement by the prison superintendent to the judge on her behalf. Id. at 118, 128.
She conceded that she seduced the guard: “[H]e didn‘t force hisself on me or notin‘. An, I totally seduced him. I mean, I totally went out my way to get him.” Id. at 142. “Um, when I found out he was interestеd in me, I made advances at him.” Id. at 130.
That was her standard practice: “I do put on shows for the officers.... [I]f I see dey interested ... dats when I go [i]n for the kill. I be like, ‘Oh, you like what you see?’ An, I be like, ‘Well give me some cigarettes.’ ” Id. at 141.
There is no evidence of sexual misconduct by guards at the ECHC prior to Cash‘s assault besides these questionable allegations from one inmate, three years earlier—at a facility through which 17,000 inmates pass every year, Trial Tr. at 674.
The majority opinion implicitly concedes that the Allen incident may have been insufficient to put the sheriff and the County on notice that Cash might be raped; so the opinion relies as well on evidence that the sheriff was aware of incidents at other New York correctional facilities. Op. at 336-37.
The measures taken by defendants to prevent sexual exploitation of inmates were stringent: a no-excuses policy that is integral to training, that is enforced by supervision, that is reinforced by threat of discipline in a written notice, and that was implemented by an investigation and discipline following the only relevant inmate grievance in prior years. Yet the majority opinion holds that the jury could find that the defendants knew that the measures taken to protect Cash were insufficient. Op. at 336-37. The majority opinion “must assume” (and I agree) that the only ground on which the jury could have found deliberate indifference is failure to implement a policy (urged by plaintiff‘s expert witness) that the ECHC should have had a policy altogether preventing “unmonitored one-on-one contact between male guards and female prisoners.” Op. at 338. The expеrt offered as good practice (in the opinion‘s words) “to pair a female officer with a male officer whenever direct interaction with a female prisoner is required.” Op. at 331.
Among the absurdities here is that no guard can know when direct contact may become required; in prison, interventions are not always by appointment. And at the risk of being obvious, this policy would either impose enormous incremental costs or would halve the personnel available for supervision of the facility (and thereby increase the risk of prisoner-on-prisoner violence and abuse).
In any event, the risk associated with having men and women interact in a closed environment is bred in the bone; it means nothing to say that the prison authorities should anticipate it. Abating that risk is another matter. If the majority opinion is sound, the only effective solution would be to have no guards of the opposite sex in women‘s or men‘s prisons. The majority opinion does not take account of the considerable ramifications. Because male inmates greatly outnumber female inmates, the resulting curtailment of opportunity for female guards would likely trigger valid Title VII suits. People with known same-sex preferences may not be able to serve as guards in any prison. And in another sphere, since military officers are responsible for their subordinatеs, we could not have mixing of the sexes in the military, unless (I suppose) the officers are paired off.
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Finally, the majority casually discards—in a footnote, without explanation, Op. at 341 n. 8—the district court‘s own conclusion that the jury charge was deficient and that a new trial was warranted. (The
Derrick BROWN, Personal representative of the Estate of Dorothy A. Brown, Deceased, Plaintiff-Appellant, v. ELI LILLY AND COMPANY, Defendant-Appellee, Noxubee General Hospital, Baptist Memorial Hospital-Golden Triangle, Police Officers John Does 1-5, Defendants.
Docket No. 10-512-cv.
United States Court of Appeals, Second Circuit.
Argued: May 4, 2011.
Decided: Aug. 18, 2011.