    17-925-pr
    Delee v. Hannigan

                           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, 40 Foley Square, in the City of
    New York, on the 28th day of March, two thousand eighteen.

    PRESENT: DENNIS JACOBS,
             DEBRA ANN LIVINGSTON,
                              Circuit Judges,
             PAMELA K. CHEN,*


                                     District Judge.

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    MAURICE L. DELEE,
               Plaintiff-Appellant,

                 -v.-                                          17-925-pr

    CHARLES M. HANNIGAN, Sean White, Deanna
    Carhart, James Lambert, Thomas Dixon,
    Anthony Polak, Jeffrey Bea,
    Superintendent James Conway, Sibata
    Khahfia, Paul Chappius, Jr., Edward
    O’Mara, Daniel O’Connor, Norman Bezio,
    Wendy Phillips, Captain K. Brown, C.
    Lundquist, Assistant Inmate Grievance

    * Judge Pamela K. Chen of the United States District Court
    for the Eastern District of New York, sitting by
    designation.
                                              1
Director, Karen Bellamy, Director of
Inmate Grievance,

          Defendants-Appellees,

DANIELLE ESPOSITO, R.N.,
           Defendant.


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FOR APPELLANT:              Gerald T. Walsh, Zdarsky,
                            Sawicki & Agostinelli LLP,
                            Buffalo, New York.

FOR APPELLEE:               Eric T. Schneiderman, Attorney
                            General of the State of New York
                            (Barbara D. Underwood, Andrew D.
                            Bing, and Frederick A. Brodie,
                            on the brief), Albany, New York,
                            for Defendants-Appellees White,
                            Carhart, Lambert, Dixon, Polak,
                            Bea, Conway, Khahfia, Chappius,
                            O’Mara, O’Connor, Bezio,
                            Phillips, Brown, Lundquist, and
                            Bellamy.

                            W. James Schwan, Esq., Law
                            Office of W. James Schwan,
                            Buffalo, New York,
                            for Defendant-Appellee Hannigan.

     Appeal from the judgment of the United States District
Court for the Western District of New York (Geraci, C.J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court is
AFFIRMED.

     Maurice Delee appeals the judgment of the   United States
District Court for the Western District of New   York
dismissing his suit pursuant to a jury verdict   on Delee’s
42 U.S.C. § 1983 excessive force claim. Delee    also appeals
the district court’s mid- and pre-trial orders   awarding
                              2
judgment as a matter of law, and granting a motion to
dismiss and a motion for partial summary judgment. We
assume the parties’ familiarity with the underlying facts,
the procedural history, and the issues presented for
review.

     A dispute over a $70 commissary charge led to mutual
allegations of misconduct and recrimination between a
prison inmate and numerous corrections officers and
supervisors. Delee, a former inmate at the Attica
Correctional Facility, complained that several items he had
purchased from the commissary were missing and requested a
refund. He claims that on November 17, 2007, defendant
corrections officer Charles M. Hannigan beat, kicked, and
sexually assaulted him as retribution for seeking the
refund, and that Hannigan was assisted by Sean White and
Deanna Carhart. Misbehavior reports filed after the
incident resulted in Delee’s solitary confinement in the
special housing unit (“SHU”) for three-and-a-half months.
On numerous occasions, Delee requested medical assistance
for injuries and wrote letters to prison supervisors
challenging his punishment and demanding that Hannigan,
White, and Carhart face disciplinary action.

     The corrections officers concede the use of force in
the November 2007 encounter, but contend that Delee had to
be restrained when he became violent after a search of his
cell turned up items he had claimed as lost in the
commissary report. Medical personnel and supervisors at
Attica attest that Delee received proper treatment.
Meanwhile, nothing in Delee’s medical records supported any
of his alleged injuries to his groin or back. Delee
ultimately won his administrative appeal, and all
disciplinary rule violations were reversed or dismissed.

     Delee’s amended complaint asserts that the Defendants-
Appellees violated and conspired to violate his civil
rights. See 42 U.S.C. §§ 1983 and 1985. He alleges
violations of the First, Fourth Fifth, Eighth, and
Fourteenth Amendments by various prison employees who
subjected him to physical and sexual assault, filed false
misbehavior reports as retaliation, denied him due process
in connection with the false misbehavior reports, and
denied him medical treatment for the injuries he sustained
                             3
in the fracas. The amended complaint sought damages from
18 defendants in both their individual and official
capacities.

     The district court adopted the report and
recommendation of the magistrate judge dismissing Delee’s
constitutional claims against numerous named defendants for
lack of personal involvement, and dismissing his claims
against defendants acting in their official capacity as
foreclosed by the Eleventh Amendment. The district court
then granted partial summary judgment in favor of each
moving defendant except Officer Carhart. And during trial,
the district court granted judgment as a matter of law
under Federal Rule of Civil Procedure 50 on Delee’s
conspiracy claim. See Fed. R. Civ. P. 50(a)(1).

     Delee proceeded to a jury on his Eighth Amendment
excessive force claims against defendants Hannigan,
Carhart, and White. Chief Judge Geraci rejected Delee’s
proposed jury instruction on intentional contact with an
inmate’s genitalia (premised on Crawford v. Cuomo, 796 F.3d
252 (2d Cir. 2015)), and gave an instruction on the
proximate cause element of an excessive force claim over
Delee’s objection. The jury returned a verdict in favor of
the defense.

     On appeal, Delee challenges: (1) the failure to provide
the proposed instruction on Crawford v. Cuomo; (2) the jury
instruction on proximate cause; (3) the Rule 50 ruling on
his civil rights conspiracy claim; (4) the dismissal of his
claims against supervisory defendants on a motion to
dismiss for lack of personal involvement; and (5) the
dismissal of his due process and deliberate indifference
claims at summary judgment. Sixth and finally, he seeks a
new trial.

     1.   The parties dispute the standard of review for the
denial of the proposed instruction on intentional contact
with private parts. Delee argues for de novo review.
Hannigan argues for plain error review because Delee failed
to object on the record. See Latsis v. Chandris, Inc., 20
F.3d 45, 49 (2d Cir. 1994) (“Normally, we will not consider
a challenge to a jury charge if a party failed to object at
trial.”) (citing Fed. R. Civ. P. 51).
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     Here de novo review applies. Delee requested an
instruction, the district court made a definitive ruling on
the record rejecting that instruction, and Delee’s counsel
explained why he believed his proposed instruction would
have been proper. Tr. 565-66; 663. In discussing
“exceptions” to the jury instructions, the court clarified
that “submissions that were made that the court denied are
preserved.” Tr. 663. Delee’s proposed instruction and
argument were therefore sufficient to preserve the issue
for appeal. See Fed. R. Civ. P. 51(d)(1)(B); AMW Materials
Testing, Inc. v. Town of Babylon, 584 F.3d 436, 444-45 (2d
Cir. 2009). Under de novo review, to “justify a new trial,
a jury instruction must be both erroneous and prejudicial.”
Millea v. Metro-North R. Co., 658 F.3d 154, 163 (2d Cir.
2011).

     The Eighth Amendment protects prison inmates against
cruel and unusual punishment. U.S. Const. amend. VIII; see
Whitley v. Albers, 475 U.S. 312, 319 (1986) (protecting
inmates against the “unnecessary and wanton infliction of
pain”) (internal quotation marks omitted). To be
actionable, the punishment must be “objectively,
sufficiently serious,” and the corrections officer must
have a “sufficiently culpable state of mind.” Farmer v.
Brennan, 511 U.S. 825, 834 (1994) (citation and internal
quotation marks omitted).

     “[S]exual abuse of a prisoner by a corrections officer
may in some circumstances violate the prisoner’s right to
be free from cruel and unusual punishment.” Boddie v.
Schnieder, 105 F.3d 857, 860-61 (2d Cir. 1997). A single
incident can reach constitutional significance “if
sufficiently severe or serious.” Crawford, 796 F.3d at
257. “A corrections officer’s intentional contact with an
inmate’s genitalia or other intimate area, which serves no
penological purpose and is undertaken with the intent to
gratify the officer’s sexual desire or humiliate the
inmate, violates the Eighth Amendment.” Id. At the same
time, there are “searches of an intensely personal nature”
that are not “properly the subject of a lawsuit.” Id. at
258. “[T]he principal inquiry is whether the contact is
incidental to legitimate official duties, such as a
justifiable pat frisk or strip search, or by contrast
                             5
whether it is undertaken to arouse or gratify the officer
or humiliate the inmate.” Id. at 257-58.

     Delee arguably requested a jury instruction in keeping
with a valid theory of an Eighth Amendment violation. A
Crawford instruction would not necessarily be duplicative.
Tr. 640-43; see Crawford, 796 F.3d at 257 (“To show that an
incident or series of incidents was serious enough to
implicate the Constitution, an inmate need not allege that
there was penetration, physical injury, or direct contact
with uncovered genitalia.”). And an intent to gratify a
sexual desire or humiliate an inmate is not necessarily
coextensive with maliciousness. Cf. Harris v. Miller, 818
F.3d 49, 65 (2d Cir. 2016) (per curiam).

     But Delee fails to show that any error was prejudicial.
See United States v. Chandler, 98 F.3d 711, 715-16 (2d Cir.
1996); see also Millea, 658 F.3d at 163. An error in a
jury instruction is not prejudicial “when [the court is]
persuaded it did not influence the jury’s verdict.”
Townsend v. Benjamin Enters., Inc., 679 F.3d 41, 56 (2d
Cir. 2012) (citation and internal quotation marks omitted);
see also Lore v. City of Syracuse, 670 F.3d 127, 156 (2d
Cir. 2012) (“An omission, or an incomplete instruction, is
less likely to be prejudicial than a misstatement of the
law.” (quoting Henderson v. Kibbe, 431 U.S. 145, 155
(1977)) (internal quotation marks omitted)). In
particular, Delee offered no evidence of Hannigan’s intent
to gratify a sexual desire, and no evidence other than his
own testimony that there was no legitimate penological
purpose for the alleged sexual abuse. See Crawford, 796
F.3d at 258 (no Eighth Amendment violation from intimate
touching “as long as the officer had no intention of
humiliating the inmate or deriving sexual arousal or
gratification from the contact”).

     We have previously concluded that where the plaintiff
“has adduced no evidence from which we can reasonably infer
that [the defendant] had intended to search him with intent
to arouse or gratify [defendant’s] sexual desires,” there
are no genuine issues of material fact for the jury to
explore. Shaw v. Prindle, 661 F. App’x 16, 19 (2d Cir.
2016) (summary order); see also Farmer, 511 U.S. at 834
(requiring proof of a “sufficiently culpable state of
                             6
mind”). True, intent may be inferred from statements made
by a corrections officer, see, e.g., Crawford, 796 F.3d at
258; from the use of demeaning sexualized remarks, Shepherd
v. Fisher, No. 08-cv-9297 (RA), 2017 WL 666213, at *18
(S.D.N.Y. Feb. 16, 2017); from the timing of an assault,
see Bell v. Wolfish, 441 U.S. 520, 559 (1979); or from a
lack of any “legitimate law enforcement or penological
purpose for the defendant’s alleged conduct,” Boddie, 105
F.3d at 861. But no such inferences are available here;
and the jury necessarily found that the physical
confrontation at least served some legitimate purpose in
reaching a verdict of no action on Delee’s excessive force
claim. See Blyden v. Mancusi, 186 F.3d 252, 262-63 (2d
Cir. 1999) (excessive force is “force not applied in a
‘good faith effort to maintain or restore discipline’”)
(quoting Hudson v. McMillian, 503 U.S. 1, 7 (1992)).

     With no indicia of intent whatsoever, the jury could
not have inferred that Hannigan had a sexual motivation.
Accordingly, there was no prejudice; indeed, given the
dearth of evidence to support the charge, there was no
error.

     2. We review de novo Delee’s objection to the district
court’s jury instruction on proximate cause. Millea, 658
F.3d at 163; Fed. R. Civ. P. 51.

     Delee argues that the court erroneously added the
element of proximate cause to the jury instruction on
excessive force. See Tr. 640-41 (instructing the jury to
determine whether “the defendants Charles Hannigan and/or
Sean White and/or Deanna Carhart’s acts were the proximate
cause of injuries sustained by the plaintiff”).

     Delee cites Hudson v. McMillian, 503 U.S. 1, and
Wilkins v. Gaddy, 559 U.S. 34 (2010), for the proposition
that proximate cause is no longer an element of an
excessive force claim; but those cases bear upon the degree
of physical injury, not causation. Hudson, 503 U.S. at 4
(affirming that force may still be excessive even if the
inmate does not suffer serious or significant injury);
Wilkins, 559 U.S. 34 (same). They did not alter the
proximate causation requirement for an excessive force
claim. See Hudson, 503 U.S. at 8 (Eighth Amendment is
                             7
violated when prison guards “use force to cause harm”)
(emphasis added); see also Hogan v. Fischer, 738 F.3d 509,
516 (2d Cir. 2013); Young v. City of Providence ex rel.
Napolitano, 404 F.3d 4, 23 (1st Cir. 2005) (“[Q]uestions of
proximate cause are generally best left to the jury.”).
The district court committed no error by including a
proximate cause instruction.

     3. The claims against the supervisory defendants
Phillips, Bellamy, Lundquist, and Chappius were dismissed
for lack of personal involvement. We review the dismissal
de novo. Vietnam Ass’n for Victims of Agent Orange v. Dow
Chemical Co., 517 F.3d 104, 115 (2d Cir. 2008).

     “It is well settled in this circuit that personal
involvement of defendants in alleged constitutional
deprivations is a prerequisite” to a section 1983 claim.
Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) (internal
quotation marks and citations omitted). Personal
involvement of a supervisory defendant may be shown by
evidence that:

    “(1) the defendant participated directly in the alleged
    constitutional violation, (2) the defendant, after
    being informed of the violation through a report or
    appeal, failed to remedy the wrong, (3) the defendant
    created a policy or custom under which unconstitutional
    practices occurred, or allowed the continuance of such
    a policy or custom, (4) the defendant was grossly
    negligent in supervising subordinates who committed the
    wrongful acts, or (5) the defendant exhibited
    deliberate indifference to the rights of inmates by
    failing to act on information indicating that
    unconstitutional acts were occurring.”

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995)
(internal citations omitted).

     The amended complaint makes no allegation as to the
involvement of defendants Phillips, Bellamy, and Lundquist,
other than the titles of their employment. There is
therefore no well-pled allegation against any of these
three individuals. See Farrell v. Burke, 449 F.3d 470, 484
(2d Cir. 2006); Ayers v. Coughlin, 780 F.2d 205, 209-10 (2d
                             8
Cir. 1985) (per curiam). As to defendant Chappius, the
amended complaint makes the single allegation that he had
forwarded correspondence from Delee to another party. Such
activity, without more, does not amount to personal
involvement. See Sealey v. Giltner, 116 F.3d 47, 51 (2d
Cir. 1997).

     4. We review de novo the grant of summary judgment
dismissing Delee’s due process claims. See McBride v. BIC
Consumer Prod. Mfg. Co., 583 F.3d 92, 96 (2d Cir. 2009).

     Due process in a prison disciplinary hearing requires
(1) advance written notice of the charges; (2) an
opportunity to call witnesses and present documentary
evidence; (3) a written statement by the factfinder of the
evidence relied on and the reasons for the disciplinary
action; and (4) support for the findings “by some evidence
in the record.” Superintendent v. Hill, 472 U.S. 445, 454
(1985).

     The disciplinary hearings overseen by defendants Polak
and Dixon satisfied due process. In each instance, Delee
received written notice of the charges against him; he was
permitted to testify in his own defense and to call
witnesses; and afterward he received written decisions
citing the evidence relied upon to justify a sanction.

     Delee contends that defendants Polak and Dixon violated
his due process rights by denying him the right to call
certain witnesses and by refusing to let him be present for
the entire duration of the hearings. Several witnesses
were examined outside of Delee’s presence, but “[p]rison
inmates do not possess a constitutional right to be present
during the testimony of witnesses during a disciplinary
proceeding.” Francis v. Coughlin, 891 F.2d 43, 48 (2d Cir.
1989). Security concerns justify ex parte testimony. See
7 N.Y.C.R.R. § 253.6(b) (“The inmate shall be present at
the hearing unless he refuses to attend, or is excluded for
reason of institutional safety or correctional goals.”).
And the defendants had the right to refuse to hear
irrelevant testimony from witnesses with no personal
knowledge. See 7 N.Y.C.R.R. § 253.6(c); Kingsley v. Bureau
of Prisons, 937 F.2d 26, 30 (2d Cir. 1991).


                             9
     Delee alleges that defendant Conway approved
disciplinary sanctions that he knew to be illegitimate, and
failed to take action in response to letters protesting
those sanctions. Conway’s frequent or routine approval of
disciplinary action and his decision not to act on a letter
received from an inmate are insufficient to establish
personal involvement by a supervisor. See Colon, 58 F.3d
at 873-74 (finding on summary judgment that sending a
complaint letter to a senior prison official insufficient
to create a triable issue of fact on personal involvement).

     Finally, Delee alleges that a number of other
supervisory defendants exhibited deliberate indifference to
his purported constitutional deprivations; but he provides
no evidence that any of them had the requisite mental state
or knowledge. See Farmer, 511 U.S. at 837. Such bare
allegations are insufficient to withstand summary judgment.
See Fed. R. Civ. P. 56; Goenaga v. March of Dimes Birth
Defects Foundation, 51 F.3d 14, 18 (2d Cir. 1995).

     5. We review de novo the grant of judgment as a matter
of law dismissing Delee’s 18 U.S.C. § 1985 conspiracy claim
at the close of Delee’s case. Morse v. Fusto, 804 F.3d
538, 546 (2d Cir. 2015).

     Judgment as a matter of law is appropriate when “a
reasonable jury would not have a legally sufficient
evidentiary basis to find for the party on that issue.”
Fed. R. Civ. P. 50(a)(1). To support a conspiracy claim
under 42 U.S.C. § 1985, Delee would have to proffer
evidence sufficient to prove:

    “a conspiracy; for the purpose of depriving, either
    directly or indirectly, [Delee] of the equal protection
    of the laws ...[;] and an act in furtherance of the
    conspiracy; whereby a person is either injured in his
    person or property or deprived of any right or
    privilege of a citizen of the United States.”

Dolan v. Connolly, 794 F.3d 290, 296 (2d Cir. 2015)
(quoting Britt v. Garcia, 457 F.3d 264, 269 n. 4 (2d Cir.
2006)). “The conspiracy must also be motivated by some
racial or perhaps otherwise class-based, invidious


                             10
discriminatory animus.”   Id. (internal quotation marks and
citations omitted).

     When asked at trial what evidence supported a finding
of conspiracy, Delee pointed only to the joint use of
excessive force and the testimony from a superior that
Hannigan and White had gone to see him together to report
the incident. Tr. 344-45. A jury would have to infer that
because the corrections officers appeared together at
certain times, they had reached an agreement to deprive
Delee of constitutional rights. Such speculative claims
cannot “reasonably lead to the inference that [the
defendants] positively or tacitly came to” an agreement.
Stein v. Janos, 269 F. Supp. 2d 256, 261-62 (S.D.N.Y. 2003)
(citation and internal quotation marks omitted); see
Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 131 (2d
Cir. 1997); see, e.g., Warr v. Liberatore, 270 F. Supp. 3d
637, 650 (W.D.N.Y. 2017) (“The mere fact that the officers
were all present at the time of the alleged constitutional
violations is insufficient to support a conspiracy
claim.”); Henry-Lee v. City of N.Y., 746 F. Supp. 2d 546,
573 n. 19 (S.D.N.Y. 2010).

     Nor is there evidence of impermissible motive, such as
discrimination against a protected class. Dolan, 794 F.3d
at 296 (dismissing Section 1985 conspiracy claim for
failure to allege membership in a protected class).

     Judgment as a matter of law was therefore proper
because no reasonable jury would have a legally sufficient
evidentiary basis to find for Delee on civil conspiracy.
See Fed. R. Civ. P. 50(a)(1).

     6. Delee seeks a new trial because the district court
advised the jury that it would need to report on a Saturday
to deliberate. He did not move for a new trial at the time
of the alleged error. We would therefore ordinarily
decline to review the issue on appeal. Stanczyk v. City of
N.Y., 752 F.3d 273, 277 (2d Cir. 2014). And even if Delee
had made a timely objection and moved for a new trial
before the district court, we would not find an abuse of
the district court’s discretion under these circumstances.
United States ex rel. Nelson v. Follette, 430 F.2d 1055,


                              11
1059 (2d Cir. 1970) (noting the district court’s “broad
discretion in controlling the conduct of trial”).

     For the foregoing reasons, and finding no merit in
Delee’s other arguments, we hereby AFFIRM the judgment of
the district court.

                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




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