13-0787-cv
Doe v. Whidden


                          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
ASUMMARY 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 20th day of February, two thousand fourteen.

PRESENT: AMALYA L. KEARSE
                 REENA RAGGI,
                                 Circuit Judges,
                 EDWARD R. KORMAN,*
                                 District Judge.
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JOHN DOE,
                                 Plaintiff-Appellant,

                        v.                                                  No. 13-0787-cv

CHRISTINE WHIDDEN, WARDEN OF THE MANSON
YOUTH INSTITUTION,
                                 Defendant-Appellee.
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APPEARING FOR APPELLANT:                                  JONATHAN J. EINHORN, Law Office
                                                          of Jonathan J. Einhorn, New Haven,
                                                          Connecticut.

APPEARING FOR APPELLEE:                                   ROBERT S. DEARINGTON (Lynn D.
                                                          Wittenbrink, on the brief), Assistant
                                                          Attorneys General, for George Jepsen,


*
 The Honorable Edward R. Korman, of the United States District Court for the Eastern
District of New York, sitting by designation.
                                                 Attorney General of the State of
                                                 Connecticut, Hartford, Connecticut.

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

Connecticut (Vanessa L. Bryant, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on February 25, 2013, is AFFIRMED.

       Plaintiff John Doe appeals from an award of summary judgment to defendant

Christine Whidden, warden of the Manson Youth Institute (“MYI”), on Doe’s claim under

42 U.S.C. § 1983 that Whidden violated his Eighth Amendment right to be free from cruel

and unusual punishment by failing to protect Doe from sexual assault by his cellmate. We

review an award of summary judgment de novo, resolving all ambiguities and drawing all

reasonable inferences in favor of the non-movant, and we will affirm only if the record

reveals no genuine dispute of material fact. See Fed. R. Civ. P. 56(a); Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 247–48 (1986); Nagle v. Marron, 663 F.3d 100, 104–05 (2d Cir.

2011). We assume the parties’ familiarity with the underlying facts and the record of prior

proceedings, which we reference only as necessary to explain our decision to affirm.

1.     Constitutional Violation

       Doe submits that the district court erred in ruling that his supervisory claim against

Whidden failed as a matter of law because he did not adduce evidence sufficient to

demonstrate any constitutional violation by Whidden or her subordinates.                  To

demonstrate an Eighth Amendment violation, a prisoner must show both that (1) his injury

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was “sufficiently serious,” and (2) prison officials acted with “deliberate indifference” to

his safety. Farmer v. Brennan, 511 U.S. 825, 834 (1994); see id. at 837–38 (noting that

deliberate indifference inquiry is subjective, requiring awareness of facts from which

inference could be drawn that substantial risk of serious harm existed). It was on the

second element that the district court found Doe’s claim to fail. In urging otherwise, Doe

argues that MYI officials housed him with a “known sexual predator.” Appellant’s Br.

15. But Doe has failed to adduce evidence that any assignment error rose above the level

of negligence, an omission that is fatal to his claim. See Farmer v. Brennan, 511 U.S. at

835 (noting that deliberate indifference requires more blameworthy mental state than

negligence).

       Moreover, Doe has not shown that any assignment error by the unidentified

designating official is attributable to Whidden.       Assuming arguendo that Colon v.

Coughlin, 58 F.3d 865, 873 (2d Cir. 1995), still identifies the standards for establishing

§ 1983 liability of a supervisory defendant for the misdeeds of subordinates,1 Doe needed

to present evidence sufficient to support a finding that Whidden (1) was a direct participant

in the room assignment, (2) failed to remedy known constitutional error in such

1
  We need not decide how the Supreme Court’s decision in Ashcroft v. Iqbal, 556 U.S. 662
(2009), affected the standards for establishing supervisory liability as articulated in Colon
v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995), as Doe has not adduced sufficient evidence to
show personal involvement under either standard. See Grullon v. City of New Haven,
720 F.3d 133, 139 (2d Cir. 2013) (noting possibility that Ashcroft v. Iqbal “heightened the
requirements for showing a supervisor’s personal involvement with respect to certain
constitutional violations” but concluding that complaint failed adequately to plead
supervisor’s personal involvement even under Colon v. Coughlin standards).
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assignments, (3) created “a policy or custom under which unconstitutional practices

occurred, or allowed the continuance of such a policy or custom,” (4) was grossly negligent

in supervising subordinate MYI officials who made the housing assignment, or (5) showed

deliberate indifference to MYI inmates’ rights by not acting on information indicating

unconstitutional assignments. Colon v. Coughlin, 58 F.3d at 873. Insofar as Doe asserts

gross negligence from Whidden’s failure to train MYI employees in the state’s Sexual

Assault Prevention Policy, his contention is essentially conclusory. See Gorzynski v.

JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (noting that non-moving parties

“must provide more than conclusory allegations to resist a motion for summary

judgment”). Doe has adduced no evidence as to specific deficiencies in the overall

training of designating officials that would have avoided the challenged assignments. See

Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir. 2004) (“It is

impossible to prevail on a claim that the . . . training program was inadequate without any

evidence as to . . . how better or different training could have prevented the challenged

conduct . . . .”). Much less has he adduced any expert opinion indicating that Whidden’s

conduct in alerting subordinates to the Sexual Assault Prevention Policy fell so far below

the training responsibilities of a warden in her situation as to manifest gross negligence or

deliberate indifference. See Poe v. Leonard, 282 F.3d 123, 142 (2d Cir. 2002) (holding

that supervisor’s liability depended on showing that supervisor “knew or should have

known that there was a high degree of risk that [subordinate would commit the violative

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conduct], but either deliberately or recklessly disregarded that risk by failing to take action

that a reasonable supervisor would find necessary to prevent such a risk, and that failure

caused a constitutional injury”).

       To the extent Doe argues that Whidden’s deposition testimony raises questions of

fact that could support her supervisory liability under § 1983, counsel acknowledges that

the deposition transcript was never before the district court. “[A]bsent extraordinary

circumstances, federal appellate courts will not consider rulings or evidence which are not

part of the trial record.” International Bus. Mach. Corp. v. Edelstein, 526 F.2d 37, 45 (2d

Cir. 1975); accord Niagara Mohawk Power Corp. v. Chevron U.S.A., Inc., 596 F.3d 112,

124 (2d Cir. 2010). We identify no such extraordinary circumstances here and, thus, do

not consider the belatedly submitted transcript.

       Rather, on review of the record before the district court, we conclude that summary

judgment was correctly entered in favor of Whidden.

2.     Denial of Leave To Amend

       Doe further challenges the district court’s sua sponte determination that Doe would

not be entitled to amend his complaint to add as a defendant the MYI employee who made

the challenged cell assignment because: (1) the statute of limitations would have run with

respect to the added party, (2) such amendment could not relate back to the original

complaint, and (3) amendment would prejudice Whidden.




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       We generally review a denial of leave to amend for abuse of discretion. See

Hutchison v. Deutsche Bank Sec. Inc., 647 F.3d 479, 490 (2d Cir. 2011). Doe cannot

demonstrate such abuse here because he never asserted in the district court that he stood

ready to amend the complaint to name the designating employee as a defendant. See

Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred

in failing to grant a request [for leave to amend] that was not made.”). Insofar as Doe

submitted in the district court that he would substitute the designating employee for

Whidden, whatever further consideration that might warrant with respect to the timeliness

of any action against the designating official, it does not support maintaining this action

against Whidden. See generally Ansam Assocs., Inc. v. Cola Petroleum, Ltd., 760 F.2d

442, 446 (2d Cir. 1985) (affirming denial of leave to amend given “that discovery had

already been completed and [defendant] had already filed a motion for summary

judgment”); accord AEP Energy Servs. Gas Holding Co. v. Bank of Am., N.A., 626 F.3d

699, 727 (2d Cir. 2010).

       Accordingly, we identify no error in the award of summary judgment to Whidden

without affording leave to amend.

3.    Denial of Oral Argument

       As for Doe’s complaint that the district court granted summary judgment without

affording him oral argument, a “district court acts well within its discretion in deciding

dispositive motions on the parties’ written submissions without oral argument.” Dotson

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v. Griesa, 398 F.3d 156, 159 (2d Cir. 2005). Thus, “[a] party seeking to reverse a

summary judgment order must demonstrate that it was prejudiced by the court’s refusal to

hear argument.” Fabrikant v. French, 691 F.3d 193, 203 n.9 (2d Cir. 2012) (internal

quotation marks and alterations omitted). Although Doe maintains that issues related to

the statute of limitations and unidentified material facts “could have been reviewed and

amplified at oral argument,” Appellant’s Br. 19, he fails to show that these arguments

would have altered the outcome so as to demonstrate prejudice.

4.    Conclusion

      We have considered all of Doe’s remaining arguments and conclude that they are

without merit. The judgment of the district court is therefore AFFIRMED.

                                 FOR THE COURT:
                                 CATHERINE O=HAGAN WOLFE, Clerk of Court




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