Cash v. Cnty. of Erie ( 2011 )


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  • 09-4371-cv (L)
    Cash v. Cnty. of Erie
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    August Term, 2010
    (Argued: September 2, 2010       Decided: August 18, 2011)
    Docket Nos. 09-4371-cv (L), 09-4707-cv (XAP)
    VIKKI CASH,
    Plaintiff-Appellant-Cross-Appellee,
    —v.—
    COUNTY OF ERIE, PATRICK GALLIVAN, Sheriff,
    Defendants-Cross-Claimant-Appellees-
    Cross-Appellants,
    MARCHON HAMILTON,
    Defendant-Cross-Defendant.*
    Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.**
    *
    The Clerk of Court is directed to amend the caption to read as shown above.
    **
    District Judge Jed S. Rakoff of the United States District Court for the Southern
    District of New York, sitting by designation.
    1
    Appeal from a judgment entered in favor of defendants in the United States District
    Court for the Western District of New York (Jeremiah J. McCarthy, Magistrate Judge)
    notwithstanding a jury verdict in favor of plaintiff on her 
    42 U.S.C. § 1983
     claim for a
    violation of due process arising from her sexual assault by a sheriff’s deputy while in pretrial
    detention at a county correctional facility. Defendants cross-appeal charging errors in the
    special verdict form and inconsistent jury verdicts.
    REVERSED and REMANDED.
    Chief Judge Jacobs dissents in a separate opinion.
    EUGENE B. NATHANSON, Esq., New York, New York, for Plaintiff-Appellant-
    Cross-Appellee.
    THOMAS F. KIRKPATRICK, JR., Erie County Department of Law, Buffalo, New
    York, for Defendants-Cross-Claimant-Appellees-Cross-Appellants.
    REENA RAGGI, Circuit Judge:
    It is undisputed that while held in pretrial confinement at the Erie County Holding
    Center (“ECHC”), plaintiff Vikki Cash was sexually assaulted by a male sheriff’s deputy,
    Marchon Hamilton. At issue on this appeal is whether Cash adduced sufficient evidence of
    municipal liability for this violation of due process to support a jury verdict returned in her
    favor against Erie County and its then-policy maker, former County Sheriff Patrick Gallivan,
    2
    in the amount of $500,000. See 
    42 U.S.C. § 1983.1
     Arguing that she did carry this
    evidentiary burden, Cash appeals from a judgment entered in the United States District Court
    for the Western District of New York (Jeremiah J. McCarthy, Magistrate Judge) in favor of
    defendants notwithstanding the verdict. The County and Sheriff Gallivan defend the
    challenged judgment in their favor and, in the alternative, cross-appeal charging that errors
    in the special verdict form and inconsistent jury verdicts require a new trial. We identify
    merit in Cash’s appeal but not in defendants’ cross-appeal and, accordingly, we reverse the
    judgment in favor of defendants and remand the case for entry of judgment in favor of Cash
    consistent with the jury verdict.
    I.     Background
    A.     The Instant Complaint
    On December 10, 2003, Cash sued Erie County, the Erie County Sheriff’s
    Department, and Sheriff Gallivan in his official capacity, as well as Deputy Hamilton, in
    New York State Supreme Court for injuries sustained as a result of Hamilton’s sexual assault
    on December 17, 2002. Cash asserted, inter alia, (1) a federal due process claim under 
    42 U.S.C. § 1983
    , and (2) a New York state law claim for negligence. On March 19, 2004,
    defendants removed the action to federal court, where it was assigned to District Judge John
    T. Curtin. See 
    28 U.S.C. §§ 1441
    (b), 1446.
    1
    Not at issue on this appeal is a default judgment entered against Deputy Hamilton
    for $500,000 in compensatory damages and $150,000 in punitive damages. See Cash v.
    Cnty. of Erie, No. 04 Civ. 182, 
    2009 WL 3199558
     (W.D.N.Y. Sept. 30, 2009). Accordingly,
    we do not discuss that judgment further.
    3
    Following discovery, defendants and Cash cross-moved for summary judgment. The
    district court dismissed Cash’s complaint against the Sheriff’s Department because it was not
    a municipal entity distinct from the County, and her claim for punitive damages against the
    County and Gallivan. See Cash v. Cnty. of Erie, No. 04 Civ. 182, 
    2007 WL 2027844
    , at *6
    (W.D.N.Y. July 11, 2007).2 In all other respects, the district court denied the parties’
    summary judgment motions in light of disputed issues of fact as to municipal liability. See
    
    id. at *4-5
    .
    Pursuant to 
    28 U.S.C. § 636
    (c)(1), the parties consented to trial before a magistrate
    judge, prompting reassignment to Magistrate Judge Jeremiah McCarthy.
    B.      Trial
    1.      Evidence Adduced
    a.   The Charged Sexual Assault
    Trial evidence revealed that on December 17, 2002, while Cash was a pretrial detainee
    in a female housing unit at ECHC, Deputy Hamilton, acting alone, escorted some female
    detainees to the recreation center but ordered Cash to remain behind. When Hamilton
    returned, he grabbed Cash, put his hands over her nose and mouth, forced her into the
    deputies’ bathroom, and raped her.
    Cash reported the assault the next morning, prompting an investigation that led to
    Hamilton’s arrest for first-degree rape in violation of New York Penal Law § 130.35.
    2
    Hereafter, “defendants” refers to those before the court on this appeal, i.e., Erie
    County and Sheriff Gallivan.
    4
    Hamilton was suspended without pay and eventually pleaded guilty to third-degree rape in
    violation of New York Penal Law § 130.25, after which he resigned his deputy position.
    Because defendants did not dispute Hamilton’s rape of Cash, the parties’ focus at trial was
    on whether a County policy caused the assault. See generally Monell v. Dep’t of Soc. Servs.,
    
    436 U.S. 658
    , 692-94 (1978). On that point, considerable attention was given to the policies
    that defendants implemented to protect prisoners from sexual exploitation and defendants’
    awareness of past sexual misconduct by prison guards notwithstanding such policies. Expert
    testimony was also received as to accepted deterrent practices at other correctional facilities.
    b.     Defendants’ Policies To Avoid Sexual Misconduct at ECHC
    Defendants submitted that, at the time of Cash’s rape, policies were in place to prevent
    such an assault. As Sheriff Gallivan testified at trial, “[a] deputy was prohibited from having
    any type of relationship, intimate relationship with an inmate. A deputy was prohibited from
    having any physical contact with an inmate unless authorized by law in the case of justifiable
    use of force or preventing death or serious injury.” Trial Tr. at 451. These proscriptions are,
    in fact, mandated by New York state law, which deems persons in the custody of a state or
    local correctional facility “incapable of consent” to sexual conduct with facility employees.
    
    N.Y. Penal Law § 130.05
    (3)(e)-(f). Persons who engage in sexual intercourse with persons
    incapable of consent are criminally culpable for third degree rape, see 
    id.
     § 130.25; persons
    who engage in any sexual contact with persons incapable of consent are criminally culpable
    for second degree sexual abuse, see id. § 130.60.
    5
    Further, ECHC policy required that at the start of a new shift, a deputy of one sex
    announce his or her presence on a unit housing prisoners of another sex. No such
    announcement was required, however, when a deputy conducted periodic unannounced
    inspections of housing units, during which prisoners undressing, showering, or using the
    toilets might be viewed naked. No County policy prohibited a single deputy of one sex from
    being alone with a prisoner of another sex. Nor were any monitoring devices, such as
    surveillance cameras, ever employed to supervise such one-on-one interactions.
    c.     Defendants’ Awareness of Past Sexual Misconduct
    Sheriff Gallivan testified that in the years 1998 through 2002, approximately 85,000
    prisoners passed through ECHC. See Trial Tr. at 674. In that time, prior to Cash’s rape, he
    “only kn[e]w of one” complaint of sexual misconduct involving a male deputy and female
    detainee at ECHC. Id. at 347.3 That earlier complaint apparently pertained to events that
    3
    Cash’s attorney was permitted to impeach this testimony with Gallivan’s December
    2006 deposition, wherein he acknowledged an awareness of multiple “allegations” of sexual
    assault or abuse by male guards of female prisoners at ECHC during his tenure, but professed
    to lack “a specific recollection of any individual specific case or whether [the allegations] are
    founded.” Gallivan Dep. at 37-38 (emphasis added). Asked whether the complaints
    numbered more than five or more than twenty, Gallivan replied, “I can tell you it’s not more
    than a thousand. I don’t care to estimate. I don’t believe it would be more than twenty.” Id.
    at 39. Gallivan could not then recall if the allegations were made before or after Cash’s
    December 17, 2002 rape. However curious it might seem that the sheriff could not remember
    whether, after an assault that resulted in one of his deputies being charged with first-degree
    rape, he continued to hear allegations of male guards engaging in proscribed sexual contact
    with female prisoners, the record shows that when Gallivan was confronted at trial with his
    deposition reference to multiple “allegations,” he maintained a present awareness of only one
    complaint before Cash’s rape. Trial Tr. at 350-53.
    Cash argues that the district court erred in not allowing her to put Gallivan’s entire
    deposition testimony with respect to such allegations before the jury, on the ground that she
    6
    occurred in mid-January 1999 with respect to another female pretrial detainee at ECHC,
    Elizabeth Allen. Although Gallivan testified that he could not recall the details of the Allen
    complaint, he acknowledged that relevant findings would have been reported to him. This
    was in fact confirmed by documentary evidence addressed or copied to Gallivan.
    This documentary evidence revealed an internal affairs investigation of Allen’s claim
    that on or about January 15, 1999, a male guard, Deputy Gary Morgan, had engaged her in
    sexual intercourse, and that she had a condom to prove it. When interviewed, Allen revised
    her account, stating that while alone with Deputy Morgan, the two had engaged in various
    sexual acts just short of intercourse for which she expected to receive extra commissary
    items. Allen alleged that she had previously engaged in sexual activity with Morgan, as well
    as other guards, but lacked any corroborating physical evidence of such encounters. She
    further reported that, on a number of occasions, she exposed her breasts and fondled herself
    in front of male guards in exchange for cigarettes or other commissary items.
    When questioned, Morgan initially falsely stated that he had allowed Allen out of her
    cell on January 15, 1999, in violation of her “keep-lock” status, simply to allow her to
    retrieve cleaning equipment, and that no sexual activity occurred at that time. He later
    revised this account, stating that when released from her cell, Allen had exposed herself to
    him, which he knew she had a history of doing in front of male guards. He stated that, in the
    could not show that more than one complaint was in fact received before her rape. She
    contends that if the trial evidence was insufficient to support the jury verdict, this error
    warrants a new trial. We need not decide this evidentiary challenge because, as we explain
    below, the evidence was sufficient to support the verdict in favor of Cash.
    7
    course of trying to return Allen to her cell, he “may” have touched her breasts but insisted
    that any such contact was unintentional and not sexual.
    The Allen investigation report, addressed to Gallivan, was skeptical of Morgan’s
    denial and found “likely . . . sexual contact” between the guard and Allen. Mem. from
    Thomas Staebell to Patrick Gallivan, Case Report #99-09: On-Duty Conduct of Deputy Gary
    Morgan 1 (Apr. 1, 1999). Nevertheless, the report determined that such a charge could not
    be sustained in light of Allen’s questionable veracity. The report concluded that Morgan
    could be found clearly to have violated ECHC policy only with respect to allowing a keep-
    lock prisoner out of her cell, failing to report Allen’s exhibitionist behavior, and lying to
    investigators at his initial interview. It recommended thirty days’ suspension. Instead, the
    Sheriff’s Department suspended Morgan for only three days, which punishment he was
    permitted to satisfy by surrendering three days of compensatory time. The department
    cautioned Morgan that repetition of the conduct at issue could result in harsher discipline,
    including dismissal.
    Gallivan testified that on March 11, 1999, in response to the Allen complaint and
    “highly publicized incidents” at other New York correctional facilities, Trial Tr. at 383,
    ECHC Superintendent H. McCarthy Gipson issued a one-page memorandum entitled “Sexual
    Conduct,” reminding facility personnel of ECHC’s “no-contact” policy. The memorandum
    stated as follows:
    8
    Sexual conduct between Staff and Inmates is STRICTLY PROHIBITED, by
    the New York State Penal Law Article 130.4 Per the NYS Penal Law, inmates
    are not capable of consenting to any type of sexual conduct between an
    employee exercising authority over them. The only permissible conduct is that
    which is within the scope of your regular duties and would not be considered
    sexual in nature.
    The Erie County Holding Center encourages peer and supervisory reporting.
    Any Holding Center employee with information concerning inappropriate
    conduct, (other than criminal), on the part of another employee is encouraged
    to bring this to the attention of an appropriate supervisor. Wrongful conduct
    could be an embarrassment to the entire department. Furthermore, early
    discovery and intervention on the part of supervision could prevent further
    misconduct and decrease administrative sanctions.
    ...
    Any reports of misconduct will be thoroughly investigated.
    Mem. from H. McCarthy Gipson to ECHC Personnel (Mar. 11, 1999) (“Gipson
    Memorandum”). Gallivan explained that the Gipson Memorandum was issued to “prevent
    what happened in other facilities from happening at the holding center,” Trial Tr. at 470, and
    “to make clear to people [that] even though you’ve been trained in the policy and procedure,
    even though you know these things exist, be assured that it cannot take place, we will do
    something about it,” id. at 384.
    4
    The Memorandum defined “sexual conduct” expansively to include the following:
    Physical contact (except for required duties),
    Intimate contact
    ANY Sexual contact
    Crude, sexual comments
    Touching
    Inappropriate touching during searches
    Fondling
    Observing inmates naked (except for required duties)
    Encouraging inmates to show their body or do lewd acts
    Any other behavior as it pertains to the Holding Center Code of Conduct,
    #HC 03.03.00.
    9
    d.     Expert Testimony Regarding Accepted Practices To Deter
    Sexual Misconduct
    Thomas Frame, a corrections consultant who had worked as a Pennsylvania prison
    warden for twenty-four years, testified for Cash as an expert witness. Frame pronounced it
    “bad policy” for ECHC to allow male guards to be alone and unmonitored with female
    prisoners. Id. at 531. He explained that such a practice jeopardized the safety of female
    prisoners because the male guard “has authority over the inmate and . . . can direct that
    inmate to do almost anything he wants.” Id. at 532. Frame testified that “good and accepted
    practice” is to pair a female officer with a male officer whenever direct interaction with a
    female prisoner is required. Id. at 533. He further testified that the Allen complaint should
    have alerted defendants to the need for such a policy. See id. Frame opined that the Gipson
    Memorandum was an inadequate response to the Allen complaint because it failed to
    “remove the situation” posing a risk to female prisoners, i.e., allowing a single unmonitored
    male deputy to interact with female prisoners. Id. at 534. Defendants offered no contrary
    expert opinion.
    2.     Jury Charge and Verdict
    Upon the close of evidence, defendants moved for judgment as a matter of law. See
    Fed. R. Civ. P. 50. The district court reserved decision and proceeded to charge the jury.
    With respect to the § 1983 claim, the district court instructed that defendants could not be
    held liable for constitutional violations by Deputy Hamilton merely because he was a County
    employee. Rather, to establish municipal liability, Cash had to prove “by a preponderance
    10
    of the evidence that the actions of Marchon Hamilton . . . [were] the result of an official
    policy, practice or custom.” Trial Tr. at 1009. The court explained that such a policy,
    practice, or custom did not have to be in writing or formally adopted. The court stated that
    Sheriff Gallivan was the relevant County policymaker with respect to ECHC, a point
    conceded by defendants.
    The district court instructed that a “policy” could be found if the evidence showed a
    failure to “supervise their subordinates amounting to deliberate indifference to the rights of
    those who came in contact with municipal employees.” Id. at 1010. “Mere negligence” was
    insufficient to establish deliberate indifference. Id. Rather, deliberate indifference required
    a showing that Gallivan “knew of and disregarded an excessive risk to the plaintiff’s health
    and safety.” Id. With respect to causation, the court instructed that Cash must prove that
    defendants’ actions or inaction were the “proximate cause” of her injury, i.e., that they were
    “a substantial factor in bringing about [her] injury” and that such injury “was a reasonably
    foreseeable consequence” of defendants’ conduct. Id. at 1011.
    A special verdict form asked the jury sequentially to consider three questions relevant
    to the § 1983 claim: (1) “Did Marchon Hamilton violate Vikki Cash’s right to personal
    security guaranteed by the Due Process Clause of the Fourteenth Amendment of the
    Constitution on December 17, 2002?”; if so, (2) “Was the violation of her constitutional
    rights proximately caused by a custom, policy, or practice of the County of Erie?”; and, if
    so, (3) “Did Vikki Cash suffer injury as a result of the violation of her constitutional rights?”
    Special Verdict Form at 1-2. As to the negligence claim, the verdict form asked: (4) “Was
    11
    former Sheriff Patrick Gallivan negligent?”; and, if so, (5) “Did Vikki Cash suffer injury that
    was proximately caused by former Sheriff Patrick Gallivan’s negligence?” Id. at 2-3.
    Finally, if the jury found in favor of Cash on either the federal or state claim, the verdict form
    required the jury to “[s]tate the amount of damages that you award to compensate Vikki Cash
    for [her] injury from December 17, 2002, the date of the incident, through today.” Id. at 3.
    On September 26, 2008, the jury answered all three questions pertaining to the § 1983
    claim in the affirmative, but found that Sheriff Gallivan was not negligent. See Trial Tr. at
    1032-33. The jury awarded Cash $500,000 in compensatory damages. See id. at 1034.
    C.      Post-trial Motions and Judgment
    Before the jury was discharged, the district court inquired whether either party had
    any motions as to the verdict. When defendants sought additional time to consider post-trial
    motions, the court asked if they had “any motions directly relevant to the verdict before [it]
    discharge[d] the jury.” Id. at 1035. Defendants’ counsel responded: “Not at this time.” Id.
    On December 22, 2008, defendants renewed their motion for judgment as a matter of law,
    see Fed. R. Civ. P. 50, and moved, in the alternative, for a new trial, see Fed. R. Civ. P. 59.
    On March 10, 2009, the district court granted defendants’ Rule 50 motion and denied
    their Rule 59 motion as moot. See Decision & Order, Cash v. Cnty. of Erie, No. 04 Civ. 182
    (W.D.N.Y. Mar. 10, 2009). The court determined that, although ample evidence supported
    the existence of a County policy permitting male deputies to be alone and unmonitored with
    female prisoners at ECHC, that policy was not itself unconstitutional. Further, the court
    determined that Cash had failed to adduce sufficient evidence of prior incidents of sexual
    12
    assault by male guards of female prisoners at ECHC to place Sheriff Gallivan and the County
    on notice that such a policy presented a substantial risk of sexual harm to female prisoners.
    Absent such evidence, the district court concluded that the record failed as a matter of law
    to support a reasonable jury finding of deliberate indifference. Accordingly, the district court
    set aside the jury’s verdict and entered judgment in favor of defendants.
    These cross-appeals followed.
    II.    Discussion
    A.     Defendants Were Not Entitled to Judgment As a Matter of Law
    1.      Standard of Review
    We review de novo a district court’s decision to grant a Rule 50 motion for judgment
    as a matter of law, see Kinneary v. City of New York, 
    601 F.3d 151
    , 155 (2d Cir. 2010),
    applying the same standard as the district court, see Zellner v. Summerlin, 
    494 F.3d 344
    , 371
    (2d Cir. 2007). That standard generally imposes a heavy burden on a movant, who will be
    awarded judgment as a matter of law only when “a party has been fully heard on an issue
    during a jury trial and the court finds that 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); see
    generally Reeves v. Sanderson Plumbing Prods., Inc., 
    530 U.S. 133
    , 149 (2000). That burden
    is “particularly heavy” where, as here, “the jury has deliberated in the case and actually
    returned its verdict” in favor of the non-movant. Cross v. N.Y.C. Transit Auth., 
    417 F.3d 241
    , 248 (2d Cir. 2005). In such circumstances, a court may set aside the verdict only “if
    there exists such a complete absence of evidence supporting the verdict that the jury’s
    13
    findings could only have been the result of sheer surmise and conjecture, or the evidence in
    favor of the movant is so overwhelming that reasonable and fair minded persons could not
    arrive at a verdict against it.” Kinneary v. City of New York, 
    601 F.3d at 155
     (internal
    quotation marks and brackets omitted). In short, a Rule 50 motion may be granted only if
    the court, viewing the evidence in the light most favorable to the non-movant, concludes that
    “a reasonable juror would have been compelled to accept the view of the moving party.”
    Zellner v. Summerlin, 
    494 F.3d at 371
     (internal quotation marks omitted; emphasis in
    original); see Sorlucco v. N.Y.C. Police Dep’t, 
    971 F.2d 864
    , 871 (2d Cir. 1992). That is not
    this case.
    2.      Municipal Liability Under § 1983
    Title 
    42 U.S.C. § 1983
     states in pertinent part as follows:
    Every person who, under color of any statute, ordinance, regulation, custom,
    or usage, of any State . . . subjects, or causes to be subjected, any citizen of the
    United States or other person within the jurisdiction thereof to the deprivation
    of any rights, privileges, or immunities secured by the Constitution and laws,
    shall be liable to the party injured in an action at law, suit in equity, or other
    proper proceeding for redress . . . .
    A municipality may be liable under § 1983 only “if the governmental body itself
    ‘subjects’ a person to a deprivation of rights or ‘causes’ a person ‘to be subjected’ to such
    deprivation.” Connick v. Thompson, 
    131 S. Ct. 1350
    , 1359 (2011) (quoting Monell v. Dep’t
    of Soc. Servs., 
    436 U.S. at 692
    ). In other words, municipalities are “responsible only for
    ‘their own illegal acts,’” and cannot be held “vicariously liable under § 1983 for their
    employees’ actions.” Id. (quoting Pembaur v. Cincinnati, 
    475 U.S. 469
    , 479 (1986))
    14
    (emphasis in Pembaur); see Roe v. City of Waterbury, 
    542 F.3d 31
    , 36-37 (2d Cir. 2008)
    (holding that municipality cannot be held liable under § 1983 for acts of its employees under
    doctrine of respondeat superior). Rather, a “plaintiff must demonstrate that, through its
    deliberate conduct, the municipality was the ‘moving force’ behind the alleged injury.” Roe
    v. City of Waterbury, 
    542 F.3d at 37
     (quoting Board of Cnty. Comm’rs v. Brown, 
    520 U.S. 397
    , 404 (1997)). In short, to establish municipal liability under § 1983, a plaintiff must
    prove that “action pursuant to official municipal policy” caused the alleged constitutional
    injury. Connick v. Thompson, 
    131 S. Ct. at 1359
     (internal quotation marks omitted); see
    City of Canton v. Harris, 
    489 U.S. 378
    , 385 (1989).
    A municipal policy may be pronounced or tacit and reflected in either action or
    inaction. In the latter respect, a “city’s policy of inaction in light of notice that its program
    will cause constitutional violations is the functional equivalent of a decision by the city itself
    to violate the Constitution.” Connick v. Thompson, 
    131 S. Ct. at 1360
     (internal quotation
    marks omitted); see also City of Canton v. Harris, 
    489 U.S. at 396
     (O’Connor, J., concurring
    in part and dissenting in part) (“Where a § 1983 plaintiff can establish that the facts available
    to city policymakers put them on actual or constructive notice that the particular omission
    is substantially certain to result in the violation of the constitutional rights of their citizens,
    the dictates of Monell are satisfied.”). Consistent with this principle, “where a policymaking
    official exhibits deliberate indifference to constitutional deprivations caused by subordinates,
    such that the official’s inaction constitutes a deliberate choice, that acquiescence may be
    properly thought of as a city policy or custom that is actionable under § 1983.” Amnesty
    15
    Am. v. Town of W. Hartford, 
    361 F.3d 113
    , 126 (2d Cir. 2004) (Sotomayor, J.) (internal
    quotation marks omitted).
    As the Supreme Court has cautioned, “deliberate indifference” is “‘a stringent
    standard of fault,’” Connick v. Thompson, 
    131 S. Ct. at 1360
     (quoting Board of Cnty.
    Comm’rs v. Brown, 
    520 U.S. at 410
    ), and necessarily depends on a careful assessment of the
    facts at issue in a particular case, see generally Amnesty Am. v. Town of W. Hartford, 
    361 F.3d at 128
     (holding that deliberate indifference determination “need not rely on any
    particular factual showing”). The operative inquiry is whether those facts demonstrate that
    the policymaker’s inaction was the result of “conscious choice” and not “mere negligence.”
    
    Id.
     (internal quotation marks omitted); see City of Canton v. Harris, 
    489 U.S. at 389
    . Thus,
    deliberate indifference may be inferred where “the need for more or better supervision to
    protect against constitutional violations was obvious,” Vann v. City of New York, 
    72 F.3d 1040
    , 1049 (2d Cir. 1995), but the policymaker “fail[ed] to make meaningful efforts to
    address the risk of harm to plaintiffs,” Reynolds v. Giuliani, 
    506 F.3d 183
    , 192 (2d Cir.
    2007); see also Board of Cnty. Comm’rs v. Brown, 
    520 U.S. at 407
     (holding that deliberate
    indifference requires proof that “municipal actor disregarded a known or obvious
    consequence of his action” (internal quotation marks omitted)); Walker v. City of New York,
    
    974 F.2d 293
    , 297-98 (2d Cir. 1992) (framing deliberate indifference inquiry in three parts:
    (1) policymaker knows “to a moral certainty” that its employees will confront a given
    situation; (2) either situation presents employees with difficult choice that will be made less
    so by training or supervision, or there is a record of employees mishandling situation; and
    16
    (3) wrong choice by employees will frequently cause deprivation of constitutional rights
    (internal quotation marks omitted)).
    3.     Trial Evidence Was Not Insufficient as a Matter of Law To Permit a
    Reasonable Jury To Find Municipal Liability Based on Deliberate
    Indifference
    In moving for Rule 50 relief from the jury verdict in favor of Cash, defendants did not
    dispute that Cash’s constitutional right to due process was violated when, while in pretrial
    confinement at ECHC, she was raped by a guard; that the guard was then acting under color
    of state law; or that Sheriff Gallivan was the relevant policymaker for purposes of assessing
    municipal liability. Defendants’ motion thus focused on a single issue: the sufficiency of the
    evidence to demonstrate that Gallivan acted with deliberate indifference to the risk that Cash
    would be sexually assaulted by an unmonitored guard.
    In assessing defendants’ sufficiency challenge, we review the trial evidence not only
    in the light most favorable to Cash, see Zellner v. Summerlin, 
    494 F.3d at 371
    , but also
    mindful that defendants operated under an “affirmative duty to protect those held in their
    custody,” Villante v. Dep’t of Corr., 
    786 F.2d 516
    , 519 (2d Cir. 1986); cf. DeShaney v.
    Winnebago Cnty. Dep’t of Soc. Servs., 
    489 U.S. 189
    , 199-200 (1989) (“[W]hen the State
    takes a person into its custody and holds him there against his will, the Constitution imposes
    upon it a corresponding duty to assume some responsibility for his safety and general well-
    being.”); Caiozzo v. Koreman, 
    581 F.3d 63
    , 69 (2d Cir. 2009) (“[A] person detained prior
    to conviction receives protection against mistreatment at the hands of prison officials under
    . . . the Due Process Clause of the Fourteenth Amendment if held in state custody.”).
    17
    The existence of an affirmative duty to protect does not mean that any harm that
    befalls a person in state custody necessarily manifests a municipal policy of deliberate
    indifference to prisoner safety. But an affirmative duty, by its nature, implies a proactive
    responsibility to assess the risks of harm presented by given circumstances and to take
    reasonable preventive measures in advance of harm occurring, not simply to respond to
    harms only after they occur. Cf. Farmer v. Brennan, 
    511 U.S. 825
    , 845 (1994) (observing
    that deliberate indifference showing in parallel Eighth Amendment context “does not require
    a prisoner seeking a remedy for unsafe conditions to await a tragic event such as an actual
    assault before obtaining relief” (internal quotation marks and brackets omitted)).
    In this case, defendants cannot claim that the evidence was insufficient to alert them
    to the risk of sexual exploitation posed by male deputies guarding female prisoners at ECHC.
    That risk is acknowledged in New York state law, which pronounces prisoners categorically
    incapable of consenting to any sexual activity with guards, see 
    N.Y. Penal Law § 130.05
    (3)(e)-(f), and subjects guards to criminal liability for such conduct, see, e.g., 
    id.
    §§ 130.25(1), 130.60(1).     In short, these laws recognize the moral certainty of guards
    confronting prisoners in sexually tempting circumstances with such a frequent risk of harm
    to prisoners as to require a complete prohibition on any sexual activity. See generally
    Walker v. City of New York, 
    974 F.2d at 297-98
    .5 Thus, the question presented by this case
    5
    The specific criminalization of any sexual activity between guards and prisoners
    distinguishes the municipal liability assessment in this case from others hypothesized by our
    dissenting colleague, see Dissenting Op., post at [5], where policymakers can confront sexual
    abuse claims in contexts admitting the possibility for consensual—or at least non-
    18
    is not whether defendants should have realized the need for such a prohibition, but whether
    defendants could rely simply on guards’ awareness of these criminal laws (and ECHC
    policies implementing them) to deter sexual exploitation of prisoners, or whether defendants
    had reason to know that more was required to discharge their affirmative protective duty,
    specifically, precluding or at least monitoring one-on-one contact between guards and
    prisoners.
    In concluding that trial evidence was legally insufficient to support the latter finding,
    the district court observed that a policy permitting unmonitored one-on-one interactions
    between a guard and a prisoner of different sexes was not itself unconstitutional, and that the
    lack of prior sexual assaults by male guards of female prisoners failed to alert Gallivan to the
    fact that such a policy posed a risk of rape to Cash. We take no exception to the district
    court’s first observation, see generally Hovater v. Robinson, 
    1 F.3d 1063
    , 1068 (10th Cir.
    1993) (rejecting “conclusion that every male guard is a risk to the bodily integrity of a female
    inmate whenever the two are left alone”), but we cannot agree with its second.
    To explain, we begin by noting that the pattern ordinarily necessary to prove
    deliberate indifference in the context of a failure-to-train claim does not neatly transfer to this
    case. See generally Connick v. Thompson, 
    131 S. Ct. at 1359
     (observing that “municipality’s
    culpability for a deprivation of rights is at its most tenuous where a claim turns on a failure
    to train”). A duty to train arises so that subordinates entrusted with the discretionary exercise
    criminal—interaction between the parties in question. Thus, far from being unbounded, this
    decision is cabined by the particular context of a no-tolerance policy backed by criminal law.
    19
    of municipal power can distinguish between lawful and unlawful choices. Because the
    exercise of such discretion can arise in myriad circumstances, the “nuance” of a particular
    training need may only become apparent to municipal policymakers after a pattern of
    violations arises in substantially similar circumstances. 
    Id. at 1363
    . The same conclusion
    obtains with respect to the need to supervise subordinates who must make a range of
    discretionary choices in the exercise of delegated municipal power.
    The deliberate indifference concern in this case, however, is not with a failure to train
    prison guards to distinguish between permissible and impermissible sexual contact with
    prisoners. Nor is it with providing sufficient supervision to ensure that guards make correct
    choices in this respect. New York affords guards no discretion respecting sexual contact
    with prisoners; the state’s proscription of such contact is absolute. Thus, the deliberate
    indifference concern here is with the adequacy of defendants’ own actions to prevent sexual
    contact between guards and prisoners consistent with their affirmative duty to protect
    prisoners in their custody.
    Mindful of this affirmative duty to protect, a reasonable jury could have concluded
    that the 1999 Allen complaint would have alerted Gallivan to the fact that mere proscriptions
    on sexual contact between guards and prisoners had proved an insufficient deterrent to sexual
    exploitation. The Allen investigation report indicated, at best, that a female prisoner
    repeatedly had engaged in sexual exhibitionism before various guards, none of whom had
    reported the activity and some of whom may have paid for it with commissary items. At
    worst, the report indicated that male guards had engaged a female prisoner in a variety of
    20
    more intimate sexual activities. Indeed, investigators indicated that, despite Allen’s dubious
    credibility, they thought it likely that such prohibited sexual activity had in fact occurred in
    Allen’s case. A jury could have concluded that this investigative determination should have
    alerted defendants that they could not rely simply on guards’ awareness of a no-tolerance
    policy to deter sexual misconduct. Likewise, a jury could have determined that Gallivan’s
    conceded awareness of “highly publicized incidents” at other New York correctional
    facilities should further have alerted him to the inadequacy of a mere proscriptive policy to
    deter guards’ sexual misconduct.
    In concluding otherwise, the district court noted that Cash had been sexually
    assaulted, and there was no evidence that the Allen incident or those arising in other
    institutions were assaultive. This reasoning overlooks the fact that, as a matter of New York
    state law, any sexual contact between a guard and a prisoner is deemed non-consensual due
    to the inherent power differential between guards and prisoners. See 
    N.Y. Penal Law § 130.05
    (3)(e)-(f); Morris v. Eversley, No. 00 Civ. 8166, 
    2004 WL 171337
    , at *1 (S.D.N.Y.
    Jan. 29, 2004) (Chin, J.) (“The law presumes that even if an inmate says ‘yes,’ she is doing
    so not because she wants to, but because the disparity in power makes it impossible for her
    to say ‘no.’”). State law draws no distinction between assaultive and non-assaultive sexual
    activity in the prison context; it tolerates neither.6 Defendants were thus obligated to do the
    same in carrying out their affirmative duty to protect prisoners from harm.
    6
    This court has previously recognized that sexual abuse of a prisoner by a corrections
    officer short of sexual assault may, in some circumstances, violate the prisoner’s right to be
    free from cruel and unusual punishment. See Boddie v. Schnieder, 
    105 F.3d 857
    , 860-61 (2d
    Cir. 1997); accord United States v. Walsh, 
    194 F.3d 37
    , 49 (2d Cir. 1999).
    21
    Accordingly, even if Gallivan had no knowledge of prior sexual assaults, it was hardly
    speculative for a jury to conclude that, at least by 1999, he knew or should have known that
    guards at ECHC and other local correctional facilities were engaging in proscribed sexual
    contact with prisoners, and that continued reliance on penal proscriptions alone was
    insufficient to protect prisoners from the range of harms associated with such misconduct,
    of which rape is obviously the most serious example. See Walker v. City of New York, 
    974 F.2d at 297
     (observing that even where need for different policy “would not be obvious to
    a stranger to the situation, a particular context might make the need for training or
    supervision so obvious that a failure to do so would constitute deliberate indifference”); see
    also Gonzales v. Martinez, 
    403 F.3d 1179
    , 1187 (10th Cir. 2005) (holding that evidence of
    prior non-sexual physical assaults, lapses in jail security, and sexual harassment and
    intimidation by guards was sufficient to support reasonable inference that sheriff was aware
    of risk of sexual assault to female inmates to sustain Eighth Amendment deliberate
    indifference claim). In the context of such an absolute proscription and a duty to protect,
    knowledge that an established practice has proved insufficient to deter lesser misconduct can
    be found to serve notice that the practice is also insufficient to deter more egregious
    misconduct. Cf. Amnesty Am. v. Town of W. Hartford, 
    361 F.3d at 128
     (observing that
    “evidence must establish only that a policymaking official had notice of a potentially serious
    problem of unconstitutional conduct, such that the need for corrective action or supervision
    was obvious” (internal quotation marks omitted)).7
    7
    The dissent contends that by framing the known risk as one of sexual exploitation
    rather than sexual assault, this opinion employs “general and expansive” terms
    22
    In fact, defendants themselves recognized a need for some response to the 1999
    incidents at ECHC and other state correctional facilities. This was evidenced by issuance of
    the Gipson Memorandum. The jury might have inferred therefrom that defendants were not
    indifferent to the problem of sexual misconduct by guards, but it was not compelled to do so.
    In making a deliberate indifference assessment, the jury was entitled to rely on unrebutted
    expert testimony that the Gipson Memorandum’s reiteration of existing law and ECHC
    policy was inadequate to protect female prisoners from sexual harm. Indeed, Gallivan
    himself conceded at trial that the “no-contact” policy referenced in the Gipson Memorandum
    had been in place at ECHC prior to 1999, yet had failed to prevent the sexual misconduct
    referenced in the Allen report. See Trial Tr. at 692. As the Supreme Court recently
    reiterated, “[p]olicymakers’ continued adherence to an approach that they know or should
    know has failed to prevent tortious conduct by employees may establish the conscious
    disregard for the consequences of their action – the ‘deliberate indifference’ – necessary to
    trigger municipal liability.” Connick v. Thompson, 
    131 S. Ct. at 1360
     (internal quotation
    marks omitted). That observation, made with reference to a claim of inadequate training,
    applies with no less force to a supervision claim, particularly where defendants operate under
    “incompatible” with recognition that unmonitored one-on-one interactions between male
    guards and female prisoners are not inherently unconstitutional. See Dissenting Op., post at
    [2 & n.1]. The identified risk, however, derives from New York law, which criminalizes all
    sexual activity between guards and prisoners as non-consensual. This hardly means that a
    municipality can never permit one-on-one interactions between male guards and female
    prisoners without giving rise to potential Monell liability, much less “strict liability” as the
    dissent claims. Rather, the relevant inquiry is whether in a particular case policymakers had
    reason to know that guards were taking advantage of one-on-one interactions to engage in
    criminal sexual conduct harmful to prisoners and responded to such knowledge in a way that
    manifested deliberate indifference to that harm, whatever its degree.
    23
    an affirmative duty of protection and their employees are absolutely prohibited by the
    criminal law from engaging in certain conduct.
    In addition to explaining why the Gipson Memorandum provided inadequate
    protection, Cash’s expert witness testified that accepted prison practice for deterring sexual
    misconduct between male guards and female prisoners was to prohibit unmonitored one-on-
    one interactions. To the extent ECHC policies permitted such interactions, the expert opined
    that the Allen complaint should have served as a “red light” alerting defendants that “this is
    not a good policy,” and that it was necessary to eliminate the conditions conducive to the
    prohibited activity. Trial Tr. at 533-34. We have no occasion to consider the possibility of
    contrary views; defendants offered no such evidence. Thus, we must assume that the jury
    credited the opinion of Cash’s expert and permissibly relied on it in deciding that Gallivan’s
    failure to do more than issue the Gipson Memorandum demonstrated deliberate indifference
    to the risk of continued and possibly aggravated sexual misconduct posed by unmonitored
    one-on-one contact between male guards and female prisoners. See Vann v. City of New
    York, 
    72 F.3d at 1049
     (recognizing that deliberate indifference may be shown “through
    expert testimony that a practice condoned by the defendant municipality was contrary to the
    practice of most police departments and was particularly dangerous because it presented an
    unusually high risk that constitutional rights would be violated” (internal quotation marks
    omitted)).
    We must further assume that the jury drew adverse inferences of deliberate
    indifference from defendants’ token response to the misconduct detailed in the Allen
    24
    investigation report. Gallivan testified that he could not even recall whether he ever
    reviewed the Allen investigation report—which was addressed to him—or only relied on a
    subordinate’s account of its contents. See Trial Tr. at 361-62. Nevertheless, rather than
    follow investigators’ recommendation to suspend the offending deputy for thirty days, the
    Sheriff’s Department imposed only three days’ suspension, and allowed the deputy to satisfy
    the punishment by giving up accrued compensatory time. Further, defendants’ apparent
    failure to make any effort to identify, much less discipline, other guards involved in a broader
    pay-for-exhibitionism practice at ECHC could have supported a jury inference that
    defendants were not committed to providing the supervision and discipline necessary to
    enforce the no-contact policy and, thereby, to protect prisoners from sexual exploitation. See
    Tafoya v. Salazar, 
    516 F.3d 912
    , 919 (10th Cir. 2008) (observing that “no-contact” policy
    is “empty gesture without corresponding supervision and a legitimate threat of discipline for
    infractions”). Additional support for such an inference might have been found in Gallivan’s
    professed inability on the stand to provide a “yes” or “no” answer to the question whether,
    as sheriff, he had “a duty to keep safe any inmates that were put into [his] care and custody.”
    Trial Tr. at 320-21 (claiming need first to “review the specific section” of state law). As the
    jury heard, such a duty is clearly prescribed by New York Correction Law § 500-c(4). See
    id. at 1013 (instructing jury that “Sheriff Gallivan had a nondelegable duty to keep prisoners
    in the holding center safe”).
    In so construing the record, we do not suggest that a reasonable jury could not have
    viewed this trial evidence more favorably to defendants. Indeed, this case presents a close
    25
    question as to how to weigh the evidence advanced to establish deliberate indifference. But
    it is not a question that we think must be resolved as a matter of law—rather than fact—for
    the defendants. When the evidence is viewed in the light most favorable to Cash and all
    inferences are drawn in her favor, a reasonable jury was not compelled to find for defendants.
    See Zellner v. Summerlin, 
    494 F.3d at 370-71
    . Rather, the jury reasonably could have found
    that defendants knew, by virtue of New York state law, that female prisoners in their custody
    faced a risk of sexual abuse by male guards; that, by 1999, defendants also knew that a policy
    simply proscribing all sexual contact between male guards and female prisoners was
    insufficient to deter such conduct at ECHC; and that, in these circumstances, defendants’
    mere reiteration of the proscriptive policy unaccompanied by any proactive steps to minimize
    the opportunity for exploitation, as for example by prohibiting unmonitored one-on-one
    interactions between guards and prisoners, demonstrated deliberate indifference to
    defendants’ affirmative duty to protect prisoners from sexual exploitation. Accordingly, the
    district court erred in granting defendants judgment as a matter of law.
    B.     Defendants Are Not Entitled to a New Trial
    Defendants contend that if the judgment in their favor is reversed, the district court’s
    denial of their Rule 59 motion for a new trial should also be reversed. They submit that a
    new trial is warranted because (1) Question Two on the special verdict form (a) improperly
    conflated the policy and causation elements of the § 1983 claim, (b) misstated the causation
    element, and (c) failed to allow the jury to consider whether Deputy Hamilton was the sole
    cause of Cash’s injuries; and (2) the jury’s verdicts as to Cash’s federal and state claims were
    26
    inconsistent. Although the district court denied defendants’ Rule 59 motion as moot in light
    of its entry of judgment as a matter of law in their favor, it nevertheless addressed the merits
    of defendants’ claims and concluded that they did not warrant a new trial. We review the
    denial of a Rule 59 motion for abuse of discretion, see AMW Materials Testing, Inc. v. Town
    of Babylon, 
    584 F.3d 436
    , 456 (2d Cir. 2009), and we identify none in the district court’s
    merits decision.
    1.      Special Verdict Form
    The formulation of special verdict questions rests in the sound discretion of the trial
    judge, see Shcherbakovskiy v. Da Capo Al Fine, Ltd., 
    490 F.3d 130
    , 141 (2d Cir. 2007), and
    will warrant reversal only if the questions mislead or confuse the jury, or inaccurately frame
    the issues to be resolved, see Fidelity & Guar. Ins. Underwriters, Inc. v. Jasam Realty Corp.,
    
    540 F.3d 133
    , 139 (2d Cir. 2008). In making this assessment, we must read challenged
    questions “in conjunction with the judge’s charge to the jury.” Shah v. Pan Am. World
    Servs., Inc., 
    148 F.3d 84
    , 96 (2d Cir. 1998) (internal quotation marks omitted).
    To preserve for appeal any objection to the form or substance of questions on a special
    verdict form, a party must object before the jury has retired to deliberate. See Fed. R. Civ.
    P. 49(a); Shcherbakovskiy v. Da Capo Al Fine, Ltd., 
    490 F.3d at 141
    ; Jarvis v. Ford Motor
    Co., 
    283 F.3d 33
    , 57 (2d Cir. 2002) (noting that failure to object results in waiver). The
    objection must be made “on the record, stating distinctly the matter objected to and the
    grounds for the objection.” Fed. R. Civ. P. 51(c)(1); see Shcherbakovskiy v. Da Capo Al
    Fine, Ltd., 
    490 F.3d at
    141 n.2. Defendants failed to comply with these requirements. Even
    27
    if their objections were properly preserved, however, defendants cannot demonstrate abuse
    of discretion.
    a.     Conflating Policy and Causation Elements
    Question Two on the special verdict form asked the jury: “Was the violation of
    [Cash’s] constitutional rights proximately caused by a custom, policy, or practice of the
    County of Erie?” Defendants contend that they properly objected to this question when
    counsel stated: “The problem I have with it is this is a combination that combines the liability
    and the causation in one question.” Trial Tr. at 907. Counsel’s statement, however, must be
    viewed in context, which was to urge substitution of defendants’ own proposed version of
    Question Two: “Did the County of Erie and Sheriff Patrick Gallivan by virtue of a policy or
    custom violate[] the plaintiff’s constitutional rights?” 
    Id.
     As the district court recognized,
    the alternative formulation itself implicitly combined the policy and causation elements of
    Cash’s municipal liability claim: “I think that is essentially what [the court’s proposed
    Question Two] says.” 
    Id.
     Defendants never clarified that they sought to have the policy and
    causation elements of a § 1983 claim put to the jury in two distinct questions. Certainly, they
    never presented the district court with proposed separate interrogatories. See generally Tuttle
    v. Equifax Check, 
    190 F.3d 9
    , 15-16 (2d Cir. 1999) (holding objection to composite verdict
    form waived where plaintiff “never asked that the district court prepare separate
    interrogatories for each prong” and “never objected to the charge on this ground”).
    Accordingly, we conclude that defendants’ objection was not stated with sufficient clarity
    to preserve it for appellate review.
    28
    Even if we were to conclude otherwise, defendants cannot show that when Question
    Two is considered in light of the jury charge there was any confusion as to Cash’s burden to
    prove both policy and causation. The district court made this clear when it identified policy
    and causation as distinct elements of the § 1983 claim. To satisfy the “second element” of
    the federal claim, the court instructed that Cash was required to prove that Deputy
    Hamilton’s actions were “the result of an official policy, practice or custom,” which could
    be evidenced by “a failure by policy makers to properly supervise their subordinates
    amounting to deliberate indifference to the rights of those who came in contact with
    municipal employees.” Trial Tr. at 1009-10. Only after explaining plaintiff’s burden to
    prove the existence of a policy did the court proceed to instruct the jury as to the “third
    element” of the federal claim, which required Cash to prove that defendants’ policy was “a
    proximate cause of the injuries sustained by the plaintiff.” Id. at 1011. Even in the criminal
    context, we deem it within a trial court’s discretion to frame the questions a jury must answer
    in terms that could be construed to combine elements, as long as the jury is properly
    instructed as to each fact that must be found. Cf. United States v. Quinones, 
    511 F.3d 289
    ,
    315 (2d Cir. 2007). Because the district court satisfactorily instructed the jury as to the need
    to find both policy and causation proved, we identify no potential for juror confusion or
    abuse of discretion in Question Two.8 Defendants’ reliance on Vippolis v. Village of
    8
    Although defendants below objected only to the special verdict form and not the jury
    instructions, the district court determined, sua sponte, that its charge constituted “plain error,”
    because “it did not in all instances require that [the jury] find that the policy reflected
    deliberate indifference to plaintiff’s rights by municipal policymakers.” Decision & Order,
    supra, at 6 n.5. Where a litigant has not complied with Federal Rule of Civil Procedure 51
    objection requirements, we may review jury instructions only for “fundamental error,” which
    29
    Haverstraw, 
    768 F.2d 40
     (2d Cir. 1985), is inapposite because the concern presented in that
    case—that the special verdict question “did not in terms require the jury to find causation,”
    
    id.
     at 45 n.5—is not present here.
    b.     Reference to “Proximate Cause” Rather than “Moving Force”
    Defendants identify error in the district court’s use of “proximate cause” rather than
    “moving force” in Question Two to identify Cash’s causation burden. Because they point
    to nothing in the record indicating that they specifically requested that the district court use
    is more stringent than the “plain error” standard applicable in criminal appeals. See SEC v.
    DiBella, 
    587 F.3d 553
    , 569 (2d Cir. 2009) (observing that for charging error “to be
    fundamental, it must be so serious and flagrant that it goes to the very integrity of the trial”
    (internal quotation marks omitted)). Here, we discern no error, much less fundamental error,
    because the district court correctly instructed that a finding of deliberate indifference was
    necessary to establish a municipal policy, practice, or custom based on defendants’ failure
    to act, see Trial Tr. at 1010, which was the theory of liability argued to the jury. In any
    event, defendants have abandoned this issue by failing to raise it in their cross-appeal urging
    a new trial. See Universal Church v. Geltzer, 
    463 F.3d 218
    , 229 (2d Cir. 2006) (“Generally
    claims not raised on appeal are deemed abandoned, at least when it is the appellant who fails
    to do so.”).
    We note, however, that the district court did err when it instructed the jury that
    Gallivan must have been subjectively aware of a risk of sexual assault to find deliberate
    indifference in this context. See Trial Tr. at 1010 (instructing that Gallivan “must have both
    been aware of the facts from which the inference could be drawn that a substantial risk of
    serious harm to the plaintiff existed, and also must have drawn such an inference” (emphasis
    added)). “Deliberate indifference” is defined differently for purposes of proving a prison
    conditions claim under the Eighth or Fourteenth Amendment in the first instance, and for
    establishing municipal liability for that violation thereafter. In the former context, deliberate
    indifference is a subjective standard requiring proof of actual knowledge of risk by the prison
    official. See, e.g., Caiozzo v. Koreman, 
    581 F.3d at 70-71
    . By contrast, for purposes of
    establishing municipal liability, deliberate indifference is an objective standard that is
    satisfied if the risk is so obvious that the official should have known of it. See Vann v. City
    of New York, 
    72 F.3d at 1049
    ; see generally Farmer v. Brennan, 
    511 U.S. at 840-42
    (explaining “deliberate indifference” standard in these different contexts). Because the jury
    returned a verdict in favor of Cash on the § 1983 claim notwithstanding the fact that the
    district court’s charge on deliberate indifference held her to a higher subjective standard of
    proof, any error in this regard was necessarily harmless.
    30
    the latter phrase in Question Two, this argument is also waived. In any event, defendants
    cannot demonstrate abuse of discretion because “proximate cause,” although derived from
    tort law, fairly describes a plaintiff’s causation burden with respect to a municipal liability
    claim under § 1983. See, e.g., Harper v. City of Los Angeles, 
    533 F.3d 1010
    , 1026 (9th Cir.
    2008) (equating “moving force” with “proximate cause” for purposes of Monell liability);
    Smith v. District of Columbia, 
    413 F.3d 86
    , 102 (D.C. Cir. 2005) (same); see also Oklahoma
    City v. Tuttle, 
    471 U.S. 808
    , 833 n.9 (1985) (Brennan, J., concurring) (recognizing
    application of “[o]rdinary principles of causation used throughout the law of torts” to Monell
    claims).
    c.      Failure To Ask Whether Hamilton Was Sole Cause of Injury
    Defendants’ contention that the verdict form was deficient in failing to inquire
    whether Deputy Hamilton was the sole cause of Cash’s injuries merits little discussion.
    Because defendants cite to nothing in the record indicating that they requested that such an
    inquiry be made on the special verdict form, the argument is not preserved for appellate
    review. Even if we reached this claim, however, we would identify no abuse of discretion.
    Question Two must be considered together with the district court’s instruction that the
    County could not be held liable solely because Hamilton was its employee or without proof
    that the constitutional violation resulted from a County policy, practice, or custom. See Trial
    Tr. at 1009. This accurately framed the issue to be decided. Had the jury determined that
    Hamilton was solely responsible for Cash’s injuries, it would have answered Question Two
    in the negative. Indeed, defendants were free to argue for such a determination in their
    summation to the jury.
    31
    Accordingly, nothing about the district court’s formulation of Question Two warrants
    a new trial.
    2.     Inconsistent Verdicts
    Citing Federal Rule of Civil Procedure 49(a), defendants submit that the district court
    erred in failing to order a new trial based on a purported inconsistency in jury verdicts
    finding defendants liable under § 1983, but absolving Sheriff Gallivan of liability for
    negligence. See Auwood v. Harry Brandt Booking Office, Inc., 
    850 F.2d 884
    , 890-91 (2d
    Cir. 1988) (“[W]hen the answers returned by the jury are inconsistent with one another, it is
    plain that proper deference to the parties’ Seventh Amendment rights to a jury trial precludes
    entry of a judgment that disregards any material jury finding.”). This argument fails for
    several reasons.
    First, the challenge was waived by defendants’ failure to raise an inconsistency
    objection before the district court discharged the jury. See, e.g., Kosmynka v. Polaris Indus.,
    Inc., 
    462 F.3d 74
    , 83 (2d Cir. 2006) (“It is well established that a party waives its objection
    to any inconsistency in a jury verdict if it fails to object to the verdict prior to the excusing
    of the jury.”); see also Denny v. Ford Motor Co., 
    42 F.3d 106
    , 111 (2d Cir. 1994) (suggesting
    case-by-case application of waiver principles to Rule 49(a) challenges). While defendants
    contend that they preserved this challenge through earlier objections to the verdict form and
    jury charge, they point to nothing in the record indicating that they timely alerted the district
    court to the possibility that the verdict form or jury charge might lead to inconsistent verdicts.
    See Fabri v. United Techs. Int’l, Inc., 
    387 F.3d 109
    , 119 (2d Cir. 2004) (holding that when
    verdict form or jury charge might lead to inconsistent verdicts, “party must object before the
    32
    jury begins its deliberations”); Jarvis v. Ford Motor Co., 
    283 F.3d 33
    , 56-57 (2d Cir. 2002)
    (same); see also Kosmynka v. Polaris Indus., Inc., 
    462 F.3d at 85
     (noting that timely
    objection permits court or opposing party to correct error).
    Moreover, it is not clear that Rule 49(a) applies here.           Although defendants
    characterize the jury’s responses on the verdict form as “special verdicts,” and the form is
    labeled “Special Verdict Form,” the questions on the form, viewed in light of jury
    instructions that specifically identified certain questions as pertaining to the § 1983 claim and
    others as pertaining to the negligence claim, is reasonably construed to solicit a general
    verdict with interrogatories on each of Cash’s two theories of liability. See Fed. R. Civ. P.
    49(b); see generally Jarvis v. Ford Motor Co., 
    283 F.3d at 56
     (Sotomayor, J.) (“[W]here a
    jury is instructed to apply legal principles and assign liability, ‘the answers to the questions
    submitted to the jury are not special verdicts, despite the use of those words in the title
    appended to the form, and Rule 49(a) therefore does not apply.’” (quoting Lavoie v. Pac.
    Press & Shear Co., 
    975 F.2d 48
    , 54 (2d Cir. 1992)); see also Mason v. Ford Motor Co., 
    307 F.3d 1271
    , 1275 (11th Cir. 2002) (“[C]ourt’s instructions to the jury on the law to be applied
    to the jury’s factual findings as well as the requirement that the jury apply the law and render
    its verdict, belie characterizing this verdict form as a special verdict.”).            In such
    circumstances, any inconsistency between general verdicts on Cash’s federal and state claims
    would not necessarily require retrial. See Globus v. Law Research Serv., Inc., 
    418 F.2d 1276
    , 1290 n.17 (2d Cir. 1969) (“[C]onsistent jury verdicts are not, in themselves, necessary
    attributes of a valid judgment [in a civil action].”); U.S. Football League v. Nat’l Football
    League, 
    644 F. Supp. 1040
    , 1045-46 (S.D.N.Y. 1986) (observing that consistent verdicts in
    33
    separate claims not required), aff’d, 
    842 F.2d 1335
     (2d Cir. 1988); see also Zhang v. Am.
    Gem Seafoods, Inc., 
    339 F.3d 1020
    , 1035-36 (9th Cir. 2003) (characterizing “majority rule”
    as permitting legally inconsistent verdicts to stand and citing cases).
    In any event, even if the jury’s responses were “special verdicts,” we identify no
    irreconcilable inconsistency raising Seventh Amendment concerns. See Munafo v. Metro.
    Transp. Auth., 
    381 F.3d 99
    , 105 (2d Cir. 2004) (instructing that only where special verdicts
    are “ineluctably inconsistent” and cannot be “harmonized rationally” does Seventh
    Amendment require that judgment be vacated and new trial ordered (internal quotation marks
    and emphasis omitted)); Harris v. Niagara Mohawk Power Corp., 
    252 F.3d 592
    , 598 (2d Cir.
    2001) (holding that “reviewing court must adopt a view of the case, if there is one, that
    resolves any seeming inconsistency” (internal quotation marks omitted)). Defendants submit
    that it was inconsistent for the jury to find, in response to Question Four, that Gallivan was
    not negligent in providing for Cash’s safety at the same time that it found, in response to
    Question Two, that Gallivan was responsible for a County policy of deliberate indifference
    to Cash’s safety. We disagree. The jury was properly instructed that “[m]ere negligence is
    not enough” to support Cash’s theory of a municipal policy of deliberate indifference, the
    second element of her § 1983 claim. Trial Tr. at 1010. Thus, as the district court aptly
    observed, the jury rationally could have concluded that if, as it found, Gallivan was
    deliberately indifferent, he was not simply negligent. A failure to understand that the higher
    standard necessarily subsumes the lower may have inured to Gallivan’s benefit on the
    negligence claim, but it did not produce irreconcilably inconsistent verdicts.
    34
    III.   Conclusion
    To summarize, we conclude as follows:
    1. Defendants were not entitled to judgment as a matter of law because the evidence
    was sufficient to support the jury verdict in favor of plaintiff on a municipal liability claim
    under § 1983. Because defendants owed plaintiff an affirmative duty of care, and because
    any sexual contact between a guard and a prisoner is absolutely proscribed by New York
    state law, a reasonable jury could have found that once defendants learned that guards were
    violating an absolute proscription in any respect, defendants’ actions to prevent future
    violations were so deficient as to manifest deliberate indifference to a risk of the full range
    of proscribed sexual conduct, including the sexual assault suffered by plaintiff.
    2. Defendants are not entitled to a new trial because the errors they assert in Question
    Two of the special verdict form and the verdict itself were not properly preserved for
    appellate review.    In any event, the verdict form considered together with the jury
    instructions adequately instructed the jury as to the elements of a municipal policy and
    causation, and the verdicts holding defendants liable under § 1983 but absolving Sheriff
    Gallivan for state law negligence were not irreconcilably inconsistent.
    Accordingly, the judgment in favor of defendants on the § 1983 claim is REVERSED,
    and the case is REMANDED with instructions to enter judgment on that claim consistent with
    the jury verdict in favor of Cash.
    35
    DENNIS JACOBS, Chief Judge, dissenting:
    1       I respectfully dissent.
    2       Cash asserts a claim for failure to supervise.      The
    3   analytical framework for such a claim is set out in Walker
    4   v. City of New York, 
    974 F.2d 293
    , 297-98 (2d Cir. 1992).
    5   Cash concedes that Walker controls, arguing that “the
    6   present case meets the three requirements for liability this
    7   Court delineated in Walker.”   Cash Br. at 37.   Under Walker,
    8   the plaintiff must show: first, a policymaker knew to a
    9   “moral certainty” that an employee would confront a given
    10   situation; second, the situation presents the employee with
    11   a difficult choice or there was “a history of employees
    12   mishandling the situation”; third, the wrong choice by the
    13   employee would frequently “deprive citizens of
    14   constitutional rights.”   Walker, 
    974 F.2d at 297-98
    .
    15       Perhaps recognizing that there was no “history of
    16   employees mishandling the situation” at the Erie County
    17   Holding Center (“ECHC”), the majority sidesteps Walker by
    18   framing the issue as “the adequacy of defendants’ own
    19   actions to prevent sexual contact between guards and
    20   prisoners consistent with their affirmative duty to protect
    21   prisoners in their custody.”   Op. at 21.   However, that is a
    22   claim of failure to supervise--one that fails the stringent
    23   test set out in Walker.
    1       In finding a basis for a jury verdict adverse to Erie
    2   County and the sheriff (whom the jury found was not even
    3   negligent), the majority opinion relies on notice that
    4   existing measures were insufficient, and the availability of
    5   a measure that would be more effective.       I disagree on both
    6   scores.   Taking its holdings together, the opinion can be
    7   read (and will be read) to impose strict liability on
    8   municipalities and policymakers for any incidents that arise
    9   in a prison.
    10       The female plaintiff was raped by a male guard.       The
    11   jury considered whether the County and the sheriff were
    12   deliberately indifferent to the risk that prisoners would be
    13   sexually assaulted by guards.       But the opinion re-casts the
    14   relevant risk in general and expansive terms: the “risk of
    15   sexual exploitation posed by male deputies guarding female
    16   prisoners.”1   Op. at 19.
    17       Nothing supports even this generalized risk other than
    18   the complaint of inmate Allen, three years earlier--a
    1
    This framing of the risk is incompatible with the
    concession in the majority opinion that “unmonitored one-on-
    one interactions between a guard and a prisoner of [a]
    different sex[] [are] not [themselves] unconstitutional,”
    and with the citation (with approval) of a case that
    “reject[s] [the] conclusion that every male guard is a risk
    to the bodily integrity of a female inmate whenever the two
    are left alone.” Op. at 20 (internal quotation marks
    omitted). No effort is made to resolve this inconsistency.
    2
    1   complaint that was investigated, but that yielded ambiguous
    2   conclusions establishing no more than that the inmate
    3   exhibited herself sexually to guards who did not report her,
    4   and that one or more guards gave her commissary items.     One
    5   guard was found to have violated policy and was given a
    6   three-day suspension without pay.   Thus the Allen complaint
    7   was not ignored: It provoked an investigation; and the
    8   investigation resulted in discipline.   This is not
    9   deliberate indifference to sexual exploitation, and far less
    10   is it deliberate indifference to the risk of rape.    In
    11   faulting the sheriff and County for handling the Allen
    12   complaint in a way that could evidence deliberate
    13   indifference to rape, the opinion elides critical
    14   particulars of that complaint:
    15                 Allen conceded that she knowingly lied when
    16            she alleged that: (1) she had sexual intercourse
    17            with the guard; (2) a female guard was complicit;
    18            (3) she had physical evidence--a condom--that
    19            could be linked to the guard. Joint Appendix at
    20            126-27.
    21
    22                 Allen had a history of threatening guards and
    23            making false allegations to “get even” with them
    24            for “not getting her what she wanted.” 
    Id.
     at
    25            115, 120. She racked up 28 violations of prison
    26            rules in the 30 days around the incident. 
    Id.
     at
    27            115.
    28
    29                 The investigator found that Allen’s allegation
    30            was made at least partly out of self-interest:
    31            “Ms. Allen stated she had the [condom] and she
    3
    1            wanted to know what was ‘in it’ for her”; and her
    2            statement to investigators was in exchange for the
    3            potential of a statement by the prison
    4            superintendent to the judge on her behalf. 
    Id.
     at
    5            118, 128.
    6
    7                 She conceded that she seduced the guard: “[H]e
    8            didn’t force hisself on me or notin’. An, I
    9            totally seduced him. I mean, I totally went out
    10            my way to get him.” Id. at 142. “Um, when I
    11            found out he was interested in me, I made advances
    12            at him.” Id. at 130.
    13
    14                 That was her standard practice: “I do put on
    15            shows for the officers. . . . [I]f I see dey
    16            interested . . . dats when I go [i]n for the kill.
    17            I be like, ‘Oh, you like what you see?’ An, I be
    18            like, ‘Well give me some cigarettes.’” Id. at
    19            141.
    20
    21   There is no evidence of sexual misconduct by guards at the
    22   ECHC prior to Cash’s assault besides these questionable
    23   allegations from one inmate, three years earlier--at a
    24   facility through which 17,000 inmates pass every year, Trial
    25   Tr. at 674.
    26       The majority opinion implicitly concedes that the Allen
    27   incident may have been insufficient to put the sheriff and
    28   the County on notice that Cash might be raped; so the
    29   opinion relies as well on evidence that the sheriff was
    30   aware of incidents at other New York correctional
    31   facilities.   Op. at 21.
    32       That is adding nothing to nothing.   If the evidence in
    33   this case amounts to sufficient warning of a criminal sexual
    4
    1   assault, then a supervisor or government is always on notice
    2   of the risk of sexual abuses in prisons, and will always be
    3   liable when, sooner or later, something bad happens.       The
    4   majority opinion is thus unbounded: It combines an ever-
    5   present risk with an inferred “proactive responsibility,”
    6   Op. at 18, in a way that constitutes strict (and vicarious)
    7   liability.   And nothing limits the opinion to conduct by
    8   guards, or to sexual conduct.       Did a warden or sheriff, a
    9   guard or a County know that sometime in past years one
    10   inmate hit another?   Or that a guard observed or tolerated
    11   sexual misconduct by an inmate and received insufficient
    12   discipline for failing to report it (or for a gift of
    13   candy)?   Or that something like that happened someplace else
    14   in the state?   If so, they could be held liable as well for
    15   every act of prisoner-on-prisoner violence or sexual
    16   misconduct (even rape).   To hold a municipality and its
    17   policymaker liable in this way eviscerates the Supreme
    18   Court’s limitations on municipal and policymaker liability.
    19       The measures taken by defendants to prevent sexual
    20   exploitation of inmates were stringent: a no-excuses policy
    21   that is integral to training, that is enforced by
    22   supervision, that is reinforced by threat of discipline in a
    23   written notice, and that was implemented by an investigation
    5
    1   and discipline following the only relevant inmate grievance
    2   in prior years.   Yet the majority opinion holds that the
    3   jury could find that the defendants knew that the measures
    4   taken to protect Cash were insufficient.     Op. at 21-22.     The
    5   majority opinion “must assume” (and I agree) that the only
    6   ground on which the jury could have found deliberate
    7   indifference is failure to implement a policy (urged by
    8   plaintiff’s expert witness) that the ECHC should have had a
    9   policy altogether preventing “unmonitored one-on-one contact
    10   between male guards and female prisoners.”     Op. at 25.     The
    11   expert offered as good practice (in the opinion’s words) “to
    12   pair a female officer with a male officer whenever direct
    13   interaction with a female prisoner is required.”     Op. at 10.
    14       Among the absurdities here is that no guard can know
    15   when direct contact may become required; in prison,
    16   interventions are not always by appointment.     And at the
    17   risk of being obvious, this policy would either impose
    18   enormous incremental costs or would halve the personnel
    19   available for supervision of the facility (and thereby
    20   increase the risk of prisoner-on-prisoner violence and
    21   abuse).
    22       In any event, the risk associated with having men and
    23   women interact in a closed environment is bred in the bone;
    6
    1   it means nothing to say that the prison authorities should
    2   anticipate it.     Abating that risk is another matter.    If the
    3   majority opinion is sound, the only effective solution would
    4   be to have no guards of the opposite sex in women’s or men’s
    5   prisons.    The majority opinion does not take account of the
    6   considerable ramifications.     Because male inmates greatly
    7   outnumber female inmates, the resulting curtailment of
    8   opportunity for female guards would likely trigger valid
    9   Title VII suits.     People with known same-sex preferences may
    10   not be able to serve as guards in any prison.     And in
    11   another sphere, since military officers are responsible for
    12   their subordinates, we could not have mixing of the sexes in
    13   the military, unless (I suppose) the officers are paired
    14   off.
    15                              *    *    *
    16          Finally, the majority casually discards--in a footnote,
    17   without explanation, Op. at 31 n.8--the district court’s own
    18   conclusion that the jury charge was deficient and that a new
    19   trial was warranted.    (The magistrate judge would have sua
    20   sponte ordered a new trial had he not awarded judgment as a
    21   matter of law to the County and the sheriff.     See Decision &
    22   Order, Cash v. Cnty. of Erie, No. 04 Civ. 182, at 6 n.5
    23   (W.D.N.Y. Mar. 10, 2009).)
    7
    

Document Info

Docket Number: 09-4371

Filed Date: 8/18/2011

Precedential Status: Precedential

Modified Date: 2/19/2016

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