13-0787-cv Doe v. Whidden UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AF TER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROC EDURE 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 APPEND IX OR AN ELECTRONIC DATAB ASE (WITH THE NOTATION

A SUMMARY ORDER @ ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United States Court of Appeals for the Seco nd Circuit, held at the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New York, on the 20 th day of February, two thousand fourteen.
PRESENT: AMALYA L. KEARSE REENA RAGGI, Circuit Judges, EDWARD R. KORMAN, * District Judge

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---------------------------- ---------------------------- -------------- JOHN DOE, Plaintiff-Appellant , v. No. 13-0787-cv CHRISTINE WHIDDEN, WARDEN OF THE MANSON YOUTH INSTITUTION, Defendant-Appellee

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---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: JONATHAN J. EINHORN, Law Office of Jonathan J. Einhorn, New Haven, Connecticut.
APPEARING FOR APPELLEE: ROBERT S. DEARINGTON (Lynn D. Wittenbrink, on the brief ), Assistant Attorneys General, for George Jepsen,

* The Honorable Edward R. Korm an, of the United States District Court for the Eastern District of New York , sitting by designation.2 Attorney General of the State of Connecticut, Hartford, Connecticut. Appeal from a judgment of the United States District Court for the District of Connecticut (Vanessa L. Bryant, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entered on February 25, 2013, is AFFIRMED. Plaintiff John Doe appeals from an aw ard of summary judg ment to defendant Christine Whidden, wa rden of the Manson Youth Institu te (“MYI”), on Doe’s claim under 42 U.S.C. § 1983 that Whidden violated his Eighth Amendment right to be free from cruel and unusual punishment by failing to protect Do e from sexual assault by his cellmate. We review an award of summary judgment de no vo, resolving all ambiguities and drawing all reasonable inferences in favor of the non-movant, and we will affirm only if the record reveals no genuine dispute of material fact. Se e Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986); Nagl e v. Marron, 663 F.3d 100, 104–05 (2d Cir. 2011). We assume the parties’ familiarity with the underlying facts and the record of prior proceedings, which we referen ce only as necessary to expl ain our decision to affirm. 1. Constitutional Violation Doe submits that the district court erred in ruling that his supervisory claim against Whidden failed as a matter of law because he did not adduce ev idence sufficient to demonstrate any constitutional violation by Whidden or her su bordinates. To demonstrate an Eighth Amendment violation, a prisoner must show both that (1) his injury3 was “sufficiently serious,” and (2) prison offici als acted with “deliberate indifference” to his safety. Farmer v. Brenna n, 511 U.S. 825, 834 (1994); see id. at 837–38 (noting that deliberate indifference inquiry is subjective, requiring awareness of facts from which inference could be drawn that substantial risk of serious harm existed). It was on the second element that the district court found Do e’s claim to fail. In urging otherwise, Doe argues that MYI officials housed him with a “known sexual predator.” Appellant’s Br. 15. But Doe has failed to addu ce evidence that any assignmen t error rose above the level of negligence, an omission that is fatal to his claim. See Fa rmer v. Brennan, 511 U.S. at 835 (noting that deliberate i ndifference requires more blameworthy mental state than negligence). Moreover, Doe has not shown that any assignment error by the unidentified designating official is attributable to Wh idden. Assuming arguendo that Colon v. Coughlin, 58 F.3d 865 , 873 (2d Cir. 1995), still identifies the sta ndards for establishing § 1983 liability of a superv isory defendant for the mi sdeeds of subordinates, 1 Doe needed to present evidence sufficient to support a finding that Whidden (1) was a direct participant in the room assignment, (2) failed to remedy known constitutional error in such

1 We need not decide how the S upreme Court’s decision in Ashcro ft v. Iqbal, 556 U.S. 662 (2009), affected the sta ndards for establishing supervisory liability as articulated in Colon v. Coughlin, 58 F.3d 865, 874 (2d Cir. 1995), as Doe has not adduced sufficient evidence to show personal involvement unde r either standard. See Gru llon v. City of New Haven, 720 F.3d 133, 139 (2d Cir. 2013) (noting possib ility that Ashcroft v. Iqbal “heightened the requirements for showing a supervisor’s pers onal involvement with respect to certain constitutional violations” but concluding that complaint failed adequately to plead supervisor’s personal involvement even under Colon v. Coughlin standards).4 assignments, (3) created “a policy or cust om under which unc onstitutional practices occurred, or allowed the continuance of such a policy or custom,” (4) was grossly negligent in supervising subordinate MYI officials who made the housing assignm ent, or (5) showed deliberate indifference to MYI inmates’ ri ghts by not acting on information indicating unconstitutional assignments. Co lon v. Coughlin, 58 F.3d at 873. Insofar as Doe asserts gross negligence from Whidden’s failure to train MYI employees in the state’s Sexual Assault Prevention Policy, his contention is essentially conclusory. See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 ( 2d Cir. 2010) (noting that non-moving parties “must provide more than c onclusory allegations to resist a motion for summary judgment”). Doe has adduced no evidence as to specific deficiencies in the overall training of designating officials that would have avoided the ch allenged assignments. See Amnesty Am. v. Town of West Hartford, 361 F.3d 113, 130 (2d Cir. 2004) (“It is impossible to prevail on a clai m that the . . . training program was inadequate without any evidence as to . . . how better or different training could have pr evented the challenged conduct . . . .”). Much less has he adduced any expert opinion indicating that Whidden’s conduct in alerting subordinat es to the Sexual Assault Prev ention Policy fell so far below the training responsibilities of a warden in her situation as to manifest gross negligence or deliberate indifference. See Poe v. Leonard, 282 F.3d 123, 142 (2 d Cir. 2002) (holding that supervisor’s liability depended on show ing that supervisor “ knew or should have known that there was a high degree of risk that [subordinate would commit the violative5 conduct], but either deliberately or recklessly di sregarded that risk by failing to take action that a reasonable supervisor would find necessa ry to prevent such a risk, and that failure caused a constitutional injury”). To the extent Doe argues that Whidden’ s deposition testimony ra ises questions of fact that could support her supervisory liability under § 1 983, counsel acknowledges that the deposition transcript was never before the district court. “[A]bsent extraordinary circumstances, federal appellate courts will not consider rulings or ev idence which are not part of the trial record.” International Bus. Mach. Corp. v. Edelstei n, 526 F.2d 37, 45 (2d Cir. 1975); accord Niagara Moha wk Power Corp. v. Chevron U.S.A., In c., 596 F.3d 112, 124 (2d Cir. 2010). We identify no such extr aordinary circumstances here and, thus, do not consider the belatedly submitted transcript. Rather, on review of the record before the district court, we conclude that summary judgment was correctly ente red in favor of Whidden. 2. Denial of Leave To Amend Doe further challenges the district court’ s sua sponte determin ation that Doe would not be entitled to amend his complaint to a dd as a defendant the MYI employee who made the challenged cell assignment because: (1) the statute of limitations would have run with respect to the added party, (2) such amendm ent could not relate back to the original complaint, and (3) amendment would prejudice Whidden.6 We generally review a denial of leave to amend for abuse of discretion. See Hutchison v. Deutsche Bank Se c. Inc., 647 F.3d 479, 490 (2d Cir. 2011). Doe cannot demonstrate such abuse here because he never as serted in the district court that he stood ready to amend the complaint to name th e designating employee as a defendant. See Gallop v. Cheney, 642 F.3d 364, 369 (2d Cir. 2011) (“[N]o court can be said to have erred in failing to grant a request [for leave to ame nd] that was not made.”). Insofar as Doe submitted in the district court that he would substitute the designating employee for Whidden, whatever further consideration that might warrant with respect to the timeliness of any action against the designating official , it does not support maintaining this action against Whidden. See generally Ansam Assocs ., Inc. v. Cola Petroleum, Ltd., 760 F.2d 442, 446 (2d Cir. 1985) (affirm ing denial of leave to ame nd given “that discovery had already been completed and [defendant] had already filed a motion for summary judgment”); accord AEP Energy Servs. Gas Holding Co. v. Bank of Am ., N.A., 626 F.3d 699, 727 (2d Cir. 2010). Accordingly, we identify no error in the award of su mmary judgment to Whidden without affording leave to amend. 3. Denial of Oral Argument As for Doe’s complaint that the district court granted summary judgment without affording him oral argument, a “district court acts well within its discretion in deciding dispositive motions on the par ties’ written submissions with out oral argument.” Dotson7 v. Griesa, 398 F.3d 156, 15 9 (2d Cir. 2005). Thus, “[a] party seeking to reverse a summary judgment order must demonstrate that it was prejudiced by the court’s refusal to hear argument.” Fabrikant v. French, 691 F.3d 193, 20 3 n.9 (2d Cir. 2012) (internal quotation marks and alterations omitted). Although Doe mainta ins that issues related to the statute of limitations and unidentified mate rial facts “could have been reviewed and amplified at oral argument,” Appellant’s Br. 19, he fails to show that these arguments would have altered the outcome so as to demonstrate prejudice. 4. Conclusion We have considered all of Doe’s remain ing arguments and conclude that they are without merit. The judgment of the di strict court is therefore AFFIRMED.
FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court