13-1159-pr
Henry v. Dinelle


                            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
Thurgood Marshall United States Courthouse, at 40 Foley Square, in the City of New York, on
the 27th day of January, two thousand fourteen.

Present: ROBERT A. KATZMANN,
                     Chief Judge,
         CHESTER J. STRAUB,
         RAYMOND J. LOHIER, JR.,
                     Circuit Judges.
________________________________________________

JONATHAN HENRY,

                           Plaintiff-Appellant,

                           v.                                   No. 13-1159-pr

JAMES F. DINELLE, RUSSELL E. DUCKETT, ALFRED J. DELUCA, DONALD L.
BROEKEMA, JEAN NORTON,

                     Defendants-Appellees.
________________________________________________

For Plaintiff-Appellant:          EDWARD SIVIN, Sivin & Miller, LLP, New York, NY

For Defendants-Appellees:      MARTIN A. HOTVET, Assistant Solicitor General of the State of
                               New York (Barbara D. Underwood, Solicitor General of the
                               State of New York, and Denise A. Hartman, Assistant
                               Solicitor General of the State of New York, on the brief), for
                               Eric T. Schneiderman, Attorney General of the State of New
                               York, Albany, NY
      Appeal from the United States District Court for the Northern District of New York
(Suddaby, J.).
       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

and DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Plaintiff-Appellant Jonathan Henry brought suit under 42 U.S.C. § 1983, claiming that

defendants had violated his Eighth Amendment right to be free from cruel and unusual

punishment. On June 15, 2012, the United States District Court for the Northern District of New

York (Suddaby, J.), entered judgment for defendants after a jury trial. Henry now appeals from

that judgment, and from a March 8, 2013 decision and order by the same court denying his

motion for judgment as a matter of law or for a new trial. We assume the parties’ familiarity with

the underlying facts, procedural history, and issues on appeal.

       We normally review de novo the denial of a motion under Federal Rule of Civil

Procedure 50(b) for judgment as a matter of law. Lore v. City of Syracuse, 670 F.3d 127, 150 (2d

Cir. 2012). However, if the moving party failed to seek judgment as a matter of law under Rule

50(a) before the case was submitted to the jury, then we may not order judgment as a matter of

law unless “required in order to prevent manifest injustice.” Lore, 670 F.3d at 153. Henry failed

to move for judgment as a matter of law under Rule 50(a) before the case was submitted to the

jury, and we see no showing of manifest injustice here. We therefore affirm the district court’s

decision to deny Henry judgment as a matter of law.

       We also affirm the district court’s decision to deny Henry’s motion under Federal Rule of

Civil Procedure 59 for a new trial. We normally review that decision for abuse of discretion.

Velez v. City of New York, 730 F.3d 128, 134 (2d Cir. 2013). But where, as here, the Rule 59

motion challenges the district court’s jury instructions, we review those instructions de

novo—unless no objection was raised at trial, in which case we review them only for plain error.


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Rasanen v. Doe, 723 F.3d 325, 332 (2d Cir. 2013). Under the plain error standard, the appellant

must show (1) error, (2) that is plain, (3) that affects substantial rights, and (4) that seriously

affects the fairness, integrity, or public reputation of the judicial proceedings. See United States

v. Cossey, 632 F.3d 82, 86-87 (2d Cir. 2011).

        Here, Henry claims that the district court erred by instructing the jury on qualified

immunity, and by including an interrogatory on the verdict form relating to qualified immunity.

But Henry himself asked the court to give the jury a qualified immunity instruction, and

specifically approved the qualified immunity instructions that the court gave. By requesting and

approving the qualified immunity instruction, Henry invited the errors of which he now

complains. He therefore cannot challenge them on appeal. See United States v. Hertular, 562

F.3d 433, 444 (2d Cir. 2009); United States v. Quinones, 511 F.3d 289, 321 (2d Cir. 2007);

United States v. Giovanelli, 464 F.3d 346, 351 (2d Cir. 2006).

        Moreover, even if Henry had not actively invited the alleged errors, he at least failed to

object to those errors at trial, and he cannot show plain error. See Rasanen, 723 F.3d at 332. If

the district court did err in this case, the error was not plain, and it did not seriously affect the

fairness, integrity, or public reputation of the judicial proceedings. Henry therefore is not entitled

to relief.

        To the extent that Henry also contends that the verdict was inconsistent, he waived that

argument by failing to object to either the jury instructions or the verdict form, and by failing to

object to the inconsistent verdict before the jury was excused. Kosmynka v. Polaris Indus., 462

F.3d 74, 83-85 (2d Cir. 2006). Given Henry’s persistent failure to raise the issue in a timely

fashion below, we choose not to exercise our discretion to overlook this waiver. See Lavoie v.

Pac. Press & Shear Co., 975 F.2d 48, 55-56 (2d Cir. 1992).

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       We have considered Henry’s remaining arguments and find them to be without merit.

For the reasons stated herein, the judgment of the district court is AFFIRMED.



                                               FOR THE COURT:
                                               CATHERINE O’HAGAN WOLFE, CLERK




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