Cash v. County of Erie

• Decision Date: 18 August 2011
• Docket Number: 09–4707–cv (XAP).,Docket Nos. 09–4371–cv (L)
• Citation: 654 F.3d 324
• Parties: Vikki CASH, Plaintiff–Appellant–Cross–Appellee,v.COUNTY OF ERIE, Patrick Gallivan, Sheriff, Defendants–Cross–Claimant–Appellees–Cross–Appellants,Marchon Hamilton, Defendant–Cross–Defendant.*
• Court: U.S. Court of Appeals — Second Circuit

654 F.3d 324

Vikki CASH, Plaintiff–Appellant–Cross–Appellee,

v.COUNTY OF ERIE, Patrick Gallivan, Sheriff, Defendants–Cross–Claimant–Appellees–Cross–Appellants,Marchon Hamilton, Defendant–Cross–Defendant.*

Docket Nos. 09–4371–cv (L)

09–4707–cv (XAP).

United States Court of Appeals, Second Circuit.

Argued: Sept. 2, 2010.Decided: Aug. 18, 2011.

Eugene B. Nathanson, Esq., New York, NY, for Plaintiff–Appellant–Cross–Appellee.Thomas F. Kirkpatrick, Jr., Erie County Department of Law, Buffalo, NY, for Defendants–Cross–Claimant–Appellees–Cross–Appellants.Before: JACOBS, Chief Judge, RAGGI, Circuit Judge, RAKOFF, District Judge.^**Chief Judge JACOBS dissents in a separate opinion.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-policymaker, former County Sheriff Patrick Gallivan, 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. BackgroundA. 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.

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. 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, 98 S.Ct. 2018, 56 L.Ed.2d 611 (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.

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 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 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:

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...