12-723-pr
Cruz v. Staley


                          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 2nd day of September, two thousand fourteen.

PRESENT: GUIDO CALABRESI,
                 REENA RAGGI,
                 DENNY CHIN,
                                 Circuit Judges.
----------------------------------------------------------------------
HARRY CRUZ,
                                 Plaintiff-Appellant,

                        v.                                               No. 12-723-pr

M. STALEY, Correction Sergeant, J. YOUNG, K.L.
SWEET, M. FIRST, JOHN DOE, Correction Officer,
                                 Defendants-Appellees.
----------------------------------------------------------------------
APPEARING FOR APPELLANT:                          RACHEL K. MARCOCCIA (David A.
                                                  Kochman, Edward J. Estrada, David A.
                                                  Scharfstein, on the brief), Reed Smith LLP,
                                                  New York, New York.




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APPEARING FOR APPELLEES:                   MARTIN A. HOTVET (Barbara D. Underwood,
                                           Solicitor General, Denise A. Hartman, Assistant
                                           Solicitor General, on the brief), Assistant
                                           Solicitor General for Eric T. Schneiderman,
                                           Attorney General of the State of New York.

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

of New York (Mae A. D’Agostino, Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment entered on January 19, 2012, is AFFIRMED.

       Plaintiff Harry Cruz appeals from the dismissal, after a jury trial, of his 42

U.S.C. § 1983 claims against named and unnamed New York State Corrections officials

for the use of excessive force against Cruz while he was incarcerated at Coxsackie

Correctional Facility. Cruz charged that defendants Staley and Young assaulted him, that

defendant Staley failed adequately to supervise his subordinates, and that these officials, as

well as defendant First, failed to intervene to prevent assaults of Cruz’s person. Cruz does

not here challenge the jury’s verdict in favor of defendants on these charges. Rather, he

faults the district court for denying him leave to amend his complaint to indicate—and for

then failing to charge the jury—that the excessive force claim against defendant First was

based on actual assault as well as a failure to prevent assault by others. See Fed. R. Civ. P.

15(b)(2). We review the denial of a Rule 15(b)(2) motion for abuse of discretion, see

MacDraw, Inc. v. CIT Grp. Equip. Fin., Inc., 157 F.3d 956, 962 (2d Cir. 1998), and alleged

jury instruction errors de novo, see Rasanen v. Doe, 723 F.3d 325, 331–32 (2d Cir. 2013).


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We assume the parties’ familiarity with the facts and record of the underlying proceedings,

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

       At trial, Cruz testified that defendant First assaulted him by placing his foot on

Cruz’s face during the events at issue. Thereafter, at a charging conference, Cruz asked

that the verdict form be revised to indicate a claim for excessive force against First based

on this evidence. When the district court asked whether such a claim was contained in the

pleadings, Cruz’s counsel replied in the affirmative. One defense counsel concurred,

while another indicated that Cruz’s request equated to asking that the pleadings conform to

the evidence. The district court indicated that this latter statement comported with its own

thinking and agreed to make the requested change to the verdict form. Later that day,

however, the district court reversed itself, explaining that it had reviewed the complaint

and found that it accused only defendants Staley and Young—not First—with assault.

Cruz’s counsel voiced no objection to the district court’s decision not to modify the jury

form as requested. Rather, he apologized for his mistaken representation that the claim

had been pleaded and, when asked whether he had anything further to raise with respect to

the proposed instructions or verdict form, replied that he did not.

       Insofar as Cruz now challenges the district court ruling on the ground that his

requested verdict form modification was compelled by Fed. R. Civ. P. 15(b)(2) regardless

of any pleading omission, we do not reach that claim because Cruz never raised Rule

15(b)(2) in the district court as a ground for his request. See Fed. R. Civ. P. 51(c)(1)


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(requiring party who objects to jury instruction to state “distinctly the matter objected to

and the grounds for the objection”); Rasanen v. Doe, 723 F.3d at 332–33 (concluding that

jury instruction objection not preserved where counsel failed to explain why instruction

was required or to cite relevant case and ultimately acquiesced in instruction given); see

generally In re Nortel Networks Corp. Sec. Litig., 539 F.3d 129, 132 (2d Cir. 2008)

(referencing established rule that appellate court will not consider issue raised for first time

on appeal). No different conclusion is warranted by defense counsel’s statement that the

requested amendment was akin to conforming the pleadings to the evidence—language

derived from Rule 15(b)(2)—because Cruz never adopted this passing comment as his own

and certainly did not reference either the standard or the rule as an alternative ground for

amendment when it became apparent that an assault claim against First had not been

pleaded.

       Nor are we persuaded by Cruz’s contention that it would have been futile to advance

such an argument. For us to excuse a defaulted argument as futile, a party’s position must

previously have been made clear to the district court and it must be apparent on the record

that further argument would be unavailing. See Anderson v. Branen, 17 F.3d 552, 556–57

(2d Cir. 1994). Cruz satisfies neither condition with respect to the Rule 15(b)(2) error he

advances on appeal.

       In such circumstances, we review only for plain error, a standard that requires Cruz

to show (1) error, (2) that is plain, (3) that affected his substantial rights, and (4) that


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seriously affected the fairness, integrity, or public reputation of the judicial proceedings.

See United States v. Marcus, 560 U.S. 258, 262 (2010); Rasanen v. Doe, 723 F.3d at 332

& n.2. Even if we were to assume arguendo that Cruz satisfies the first two conditions, he

cannot satisfy the third and fourth in this case in which the jury verdict in favor of

defendants on all claims—including more serious assault claims against other officers

during the same incident—indicates that it credited the officers’ account of the events in

dispute and did not credit Cruz’s. Accordingly, there is no basis to conclude that any error

in failing to submit an assault claim against defendant First affected Cruz’s substantial

rights or seriously affected the fairness, integrity, or public reputation of the judicial

proceedings.

       We have considered the remainder of Cruz’s arguments and conclude that they are

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

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




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