11-2724-cv
Dickerson v. Prison Health Servs. Inc.
                                   UNITED STATES COURT OF APPEALS
                                       FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING 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 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of September, two thousand twelve.

PRESENT: RALPH K. WINTER,
         ROBERT D. SACK,
         REENA RAGGI,
                   Circuit Judges.

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NAHAJEHA DICKERSON,
                                 Plaintiff-Appellant,

                                 v.                                   No. 11-2724-cv

PRISON HEALTH SERVICES INCORPORATED, PHS
MEDICAL SERVICES, P.C., LATISHA FARLEY,
CORRECTION OFFICERS, CITY OF NEW YORK,
NEW YORK CITY DEPARTMENT OF CORRECTION,
DR. FRANK LEVEILLE, DEPARTMENT OF
CORRECTION,
                    Defendants-Appellees,

NEW YORK CITY POLICE DEPARTMENT, SHANTE
TERRELL, NEW YORK CITY POLICE DETECTIVE,
SHIELD # 4424 NARCOTICS BOROUGH,
BROOKLYN SOUTH COMMAND, WILSON
SAGARDIA, NEW YORK CITY DETECTIVE SHIELD
#5062 NARCOTICS BOROUGH, BROOKLYN SOUTH
COMMAND, JANE DOE, NEW YORK CITY
CORRECTION OFFICER,
                                 Defendants.*
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APPEARING FOR APPELLANT:                          VICTOR M. BROWN, Esq., New York,
                                                  New York.

APPEARING FOR APPELLEES:                          SUZANNE K. COLT (Pamela Seider Doglow,
                                                  on the brief), Assistant Corporation Counsel, for
                                                  Michael A. Cardozo, Corporation Counsel of the
                                                  City of New York, New York, New York.

        Appeal from a judgment of the United States District Court for the Eastern District

of New York (Brian M. Cogan, Judge).

        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on June 7, 2011, is AFFIRMED.

        Plaintiff Nahajeha Dickerson appeals from a grant of summary judgment in favor of

defendants the City of New York and Correction Officer Latisha Farley on Dickerson’s due

process claim that defendants failed adequately to prevent or respond to incidents of sexual

abuse by an examining physician while Dickerson was incarcerated at Rikers Island prison.

See 42 U.S.C. § 1983. We review an award of summary judgment de novo, construing the

record evidence in the light most favorable to the non-moving party. See El Sayed v. Hilton

Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). We will uphold the award only if the record

reveals “no genuine dispute as to any material fact” and the movant’s entitlement to judgment

as a matter of law. Fed. R. Civ. P. 56(a). We assume the parties’ familiarity with the facts


        *
            The Clerk of Court is respectfully directed to amend the caption as shown above.

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and record of prior proceedings, which we reference only as necessary to explain our

decision to affirm.

1.     Officer Farley

       Dickerson argues that the district court erred in concluding that her due process claim

against Officer Farley failed for lack of evidence establishing triable issues of fact as to either

mens rea or causation. See County of Sacramento v. Lewis, 523 U.S. 833, 849 (1998)

(requiring more than negligence to maintain due process claim under 42 U.S.C. § 1983);

Wray v. City of New York, 490 F.3d 189, 193–94 (2d Cir. 2007) (requiring causal link

between defendant’s action and plaintiff’s injury to pursue § 1983 claim). Because we agree

that the record presents no triable issue regarding causation, we need not address intent.

       Insofar as plaintiff spoke to Officer Farley only after the sexual misconduct at issue

had already occurred, there is plainly no causal link between that injury and Officer Farley’s

now-challenged advice. Cf. Okin v. Vill. of Cornwall-On-Hudson Police Dep’t, 577 F.3d

415, 434 (2d Cir. 2009) (recognizing that due process prohibits police conduct that

encourages intentional violence against victim). Further, Dickerson has adduced no evidence

indicating that Officer Farley’s advice enhanced plaintiff’s risk of future peril. To the

contrary, the record shows that Dickerson was in the process of exiting the prison when she

informed Officer Farley of sexual misconduct by Dr. Leveille. In these circumstances,

Officer Farley’s advice that plaintiff should report the abuse to a police precinct not only

caused her no injury but also led to an investigation by the City Department of Investigation


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that, together with a separate complaint from another inmate, resulted in Dr. Leveille’s arrest.

       Dickerson nevertheless maintains that she had a constitutional right not only to be free

from sexual assault but also “to have the perpetrator of such an assault, particularly if known,

brought to justice.” Appellant Br. 22. She thus submits that there is a causal link between

Officer Farley’s failure to take immediate action on Dickerson’s assault report and

Dr. Leveille’s ability to abscond. We need not here decide whether the constitution affords

Dickerson such a right because the record defeats her claim in any event. Dr. Leveille was

able to abscond because, after arrest, he was released on bail by a New York State court.

This “intervening exercise of independent judgment” by a different actor necessarily severs

“the chain of causation” that Dickerson attempts to connect to Farley. Townes v. City of

New York, 176 F.3d at 147; accord Zahrey v. Coffey, 221 F.3d 342, 351 (2d Cir. 2000)

(recognizing that “acts of subsequent participants in the legal system [may be] superseding

causes that avoid liability of an initial actor”). Any delay in Dr. Leveille’s arrest can only

be said to have forestalled his eventual escape. The bail jumping itself is thus not a legally

cognizable result of any purported misconduct by Farley. See Zahrey v. Coffey, 221 F.3d

at 351; Townes v. City of New York, 176 F.3d at 147 (holding that “gross disconnect”

between conduct and injury negates § 1983 causation).




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2.     City of New York

       Dickerson maintains that the district court erred in failing to recognize a genuine issue

of material fact as to whether New York City’s “policy” of not requiring chaperones for

female inmates being examined by male doctors caused Dr. Leveille’s misconduct for § 1983

purposes. See Monell v. Dep’t of Soc. Servs., 436 U.S. 658, 694 (1978).1 The argument fails

because plaintiff has adduced no evidence that the City was alerted either to a general risk

of sexual exploitation from having unchaperoned inmates of one sex examined by doctors

of another sex or to a specific risk associated with Dr. Leveille.

       In Cash v. County of Erie, 654 F.3d 324 (2d Cir. 2011), cert. denied, 132 S. Ct. 1741

(2012), we recently held that a female inmate could maintain a Monell action for sexual

abuse by a prison guard because evidence indicated that the defendant County had been

alerted that its precautionary measures “had proved an insufficient deterrent to [guards’]

sexual exploitation” of prisoners. Id. at 336. At the same time, however, we rejected the

suggestion “that a municipality can never permit one-on-one interactions between male

guards and female prisoners without giving rise to potential Monell liability.” Id. at 337 n.7.

The same reasoning defeats Dickerson’s Monell claim, because here no evidence was


       1
         As the district court noted, the question of medical chaperones is complex even
outside the prison context. Plaintiff submits a report entitled “Use of Chaperones during
Physical Exams,” in which the American Medical Association’s Council on Ethical and
Judicial Affairs recommends that medically licensed chaperones be made available to
patients on request; at the same time, the report concludes that “a standard policy that
requires chaperones at every exam for every patient is likely to be impractical and
inadvisable.” J.A. 174.

                                               5
adduced that prison officials were aware that prison doctors generally, or Dr. Leveille

specifically, were sexually abusing female inmates in the course of medical examinations.

To the extent plaintiff relies on the Department of Correction’s newly imposed policy

requiring chaperones for any “intimate examination” of an inmate, J.A. 195, that policy

postdates the filing of the complaint and, as such, cannot be offered to show “culpable

conduct” on the part of New York City. Fed. R. Evid. 407; see Fed. R. Civ. P. 56(c)(2).

       Dickerson argues that the district court also erred in granting summary judgment on

her claim that New York failed to train Officer Farley to record inmate complaints at Rikers

Island. Because the asserted training failure is an omission even more remote from the

injuries alleged than was Officer Farley’s challenged advice, it cannot have been a “moving

force” behind the claimed constitutional violations. City of Canton v. Harris, 489 U.S. 378,

385–88 (1989) (internal quotation marks omitted) (requiring “a direct causal link between

a municipal policy or custom and the alleged constitutional deprivation”); see also Dwares

v. City of New York, 985 F.2d 94, 100 (2d Cir. 1993) (“[T]he simple recitation that there was

a failure to train municipal employees does not suffice to allege that a municipal custom or

policy caused the plaintiff’s injury.”), overruled on other grounds by Leatherman v. Tarrant

Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163 (1993). In fact, Officer

Farley’s unrebutted testimony reveals that she received such training on several occasions.

See J.A. 168–73.




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3.     State Law Claims

       Having properly dismissed plaintiff’s federal claims, the district court did not abuse

its discretion in declining to exercise supplemental jurisdiction over plaintiff’s state law

claims for negligent hiring and intentional infliction of emotional distress. See 28 U.S.C.

§ 1367(c)(3); Valencia ex rel. Franco v. Lee, 316 F.3d 299, 306 (2d Cir. 2003). Further,

because plaintiff does not challenge those claims’ dismissal on appeal, any such argument

is abandoned. See, e.g., Jackler v. Byrne, 658 F.3d 225, 233 (2d Cir. 2011) (stating that

issues about which “brief on appeal contains no argument” are abandoned).

       The judgment of the district court is AFFIRMED.

                                   FOR THE COURT:
                                   Catherine O’Hagan Wolfe, Clerk of Court




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