17-2092

Shannon v. Venettozzi

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A 

SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY 

FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. 

WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST 

CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE 

NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A 

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. 

1 At a stated term of the United States Court of Appeals for the Second 

2 Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 

3 the City of New York, on the 6th day of September, two thousand eighteen.

4

5 PRESENT:

6 GERARD E. LYNCH,

7 SUSAN L. CARNEY,

8 CHRISTOPHER F. DRONEY,

9 Circuit Judges.

10 _____________________________________

11 JESSE SHANNON,

12

13 Plaintiff-Appellant,

14 v. 17-2092

15

16 D. VENETTOZZI, MICHAEL CAPRA, PHILIP 

17 HEATH, WILLIAM KEYSER, J. WERLAU,

18 EDWARD KASPER, V. COLON, JERMAINE 

19 MCTURNER, NITOSCHA MOORE, J. VELEZ, S.

20 GREGORY, BRIAN FISCHER,

21

22 Defendants-Appellees.

23 _____________________________________

24

25 FOR PLAINTIFF-APPELLANT: Jesse Shannon, pro se, Ossining, NY.

26

27 FOR DEFENDANTS-APPELLEES: Andrew W. Amend, Senior Assistant Solicitor 

28 General, Scott A. Eisman, Assistant Solicitor 

29 General of Counsel, for Barbara D. Underwood, 

30 Attorney General of the State of New York, New 

31 York, NY.
2

32

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

2 of New York (Forrest, J.).

3 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

4 ADJUDGED, AND DECREED that the May 9, 2017 judgment of the District Court is 

5 AFFIRMED. 

6 Plaintiff-Appellant Jesse Shannon, proceeding pro se, appeals from the District 

7 Court’s judgment dismissing his claims asserted under 42 U.S.C. § 1983 against prison 

8 officials based on allegations of sexual abuse and failure to protect in violation of the Eighth 

9 Amendment. Shannon cites several instances of sexual misconduct occurring between 

10 August and November 2011, in which Officer Jermaine McTurner allegedly fondled and 

11 grabbed his genitalia at the Sing Sing Correctional facility in a manner unrelated to a 

12 legitimate search for contraband. 

13 In Shannon’s prior appeal, we vacated the dismissal of his Eighth Amendment claims 

14 in light of our intervening decision in Crawford v. Cuomo, 796 F.3d 252 (2d Cir. 2015), where

15 we concluded that district courts had been interpreting our prior precedent governing such 

16 claims—Boddie v. Schnieder, 105 F.3d 857 (2d Cir. 1997)—too narrowly. See Shannon v. 

17 Venettozzi, 670 F. App’x 29 (2d Cir. 2016) (summary order). We remanded to allow the 

18 District Court to determine in the first instance whether defendant prison officials were

19 entitled to qualified immunity. In doing so, we observed “that even if the district court 

20 determines that the defendants are entitled [to] qualified immunity [on his claims for 

21 damages], that immunity would not preclude Shannon’s claims for injunctive relief.” Id. at 

22 31. 

23 On remand, Shannon was represented by court-appointed counsel, who filed an 

24 amended complaint on his behalf. The amended complaint sought only damages; it did not 

25 request injunctive relief. The District Court again granted defendants’ motion to dismiss, this 
3

26 time concluding that the officers were entitled to qualified immunity because the Eighth 

27 Amendment rights asserted by Shannon were not clearly established in 2011, the year of the 

28 alleged incidents. This second appeal now follows. We assume the parties’ familiarity with 

29 the underlying facts, the procedural history of the case, and the issues on appeal, to which 

30 we refer only as necessary to explain our decision to affirm the District Court’s judgment.

31 We review de novo a district court’s decision under Federal Rule of Civil Procedure

32 12(b)(6) to dismiss a complaint based on defendants’ qualified immunity. On such review, 

33 we “accept[] all plausible allegations as true and draw[] all reasonable inferences in plaintiff’s 

34 favor.” Ganek v. Leibowitz, 874 F.3d 73, 80 (2d Cir. 2017). State officials are entitled to 

35 qualified immunity on Section 1983 claims asserted against them unless “the unlawfulness of 

36 their conduct was clearly established at the time.” Simon v. City of New York, 893 F.3d 83, 92 

37 (2d Cir. 2018) (internal quotation marks omitted). We treat a right as clearly established 

38 “when its contours are sufficiently clear that every reasonable official would have 

39 understood that what he is doing violates that right.” Id. (internal quotation marks and 

40 alteration omitted). 

41 Shannon first argues that Officer McTurner’s alleged conduct in 2011 was objectively 

42 unreasonable and therefore violated his Eighth Amendment rights. We agree that it was 

43 objectively unreasonable for a correctional officer to behave as alleged in light of our current

44 standards of decency. As we recognized in Crawford, in 2015, the Eighth Amendment is 

45 violated by even a single instance of “[a] corrections officer’s intentional contact with an 

46 inmate’s genitalia or other intimate area” when such contact “serves no penological purpose 

47 and is undertaken with the intent to gratify the officer’s sexual desire or humiliate the 

48 inmate.” 796 F.3d at 257. But Shannon’s legal claim arises from events predating Crawford by 

49 four years. Although the conduct alleged in the amended complaint is reprehensible both 

50 then and now, when it occurred in 2011, our precedent did not establish that such conduct 

51 was clearly unconstitutional. Rather, in Boddie, we had held that a “small number of incidents 
4

52 in which [the plaintiff] allegedly was verbally harassed, touched, and pressed against without 

53 his consent” was not sufficient to state a claim. 105 F.3d at 861. And, prior to our decision in 

54 Crawford, district courts had routinely interpreted Boddie to mandate the dismissal of similar 

55 claims at the pleading stage. See, e.g., Irvis v. Seally, No. 9:09-CV-543 (GLS)(ATB), 2010 WL 

56 5759149, at *4 (N.D.N.Y. Sept. 2, 2010), report and recommendation adopted, 2011 WL 454792 

57 (N.D.N.Y. Feb. 4, 2011) (dismissing Eighth Amendment claim alleging three instances of 

58 severely improper sexual misconduct during strip searches); Garcia v. Watts, No. 08-CV-7778 

59 (JSR), 2009 WL 2777085, at *7 (S.D.N.Y. Sept. 1, 2009) (“[T]wo instances of improper 

60 sexual contact . . . although abhorrent, do[] not rise to the level of cruel and unusual 

61 punishment sufficient to sustain an Eighth Amendment claim.”). 

62 In line with this conclusion, we recently affirmed the district court’s grant of qualified 

63 immunity in Crawford itself, explaining that “[a]t a minimum, any constitutional distinction 

64 between [Crawford’s] case and Boddie was not clearly established” in 2011, when the conduct 

65 in Crawford, too, allegedly occurred. See Crawford v. Cuomo, 721 F. App’x 57, 59 (2d Cir. 2018) 

66 (summary order). The same is true here. We therefore affirm the District Court’s grant of 

67 Officer McTurner’s motion to dismiss on qualified immunity grounds.

68 Relatedly, we affirm the District Court’s dismissal of Shannon’s claims against Officer 

69 Nitoscha Moore and Sergeant V. Colon for failing to intervene to stop Officer McTurner’s 

70 conduct, because an officer “cannot be held liable in damages for failure to intercede unless 

71 such failure permitted fellow officers to violate a suspect’s ‘clearly established statutory or 

72 constitutional rights’ of which a reasonable person would have known.” Ricciuti v. N.Y.C. 

73 Transit Auth., 124 F.3d 123, 129 (2d Cir. 1997) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 

74 (1982)). Because we hold that Shannon’s right to be free of the sort of sexual harassment 

75 allegedly inflicted upon him by Officer McTurner was not clearly established in 2011, it 

76 necessarily follows that he cannot state a claim by alleging that other officers failed to 

77 intervene to stop such conduct.
5

78 Shannon also argues that his requests for declaratory and injunctive relief should have 

79 precluded dismissal of the entire case on qualified immunity grounds. Although the premise 

80 underlying his assertion is correct, see, e.g., Sudler v. City of New York, 689 F.3d 159, 177 (2d 

81 Cir. 2012), the operative amended complaint that was filed after remand in Shannon’s case 

82 did not seek injunctive relief. “It is well established that an amended complaint ordinarily 

83 supersedes the original, and renders it of no legal effect.” Shields v. Citytrust Bancorp, Inc., 25 

84 F.3d 1124, 1128 (2d Cir. 1994) (internal citation omitted). The failure of Shannon’s attorney 

85 to retain his earlier-made requests for injunctive and declaratory relief in the amended 

86 complaint precludes Shannon from pursuing that relief here. We also take judicial notice of 

87 the fact that New York Department of Corrections and Community Supervision records

88 indicate that Shannon was released from prison on parole on July 18, 2018. Accordingly, 

89 even if Shannon had maintained his request for injunctive relief in his amended complaint, 

90 his request would now be moot. See Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) 

91 (“[A]n inmate’s transfer from a prison facility generally moots claims for declaratory and 

92 injunctive relief against officials of that facility.”). Shannon’s release also mitigates the 

93 concern that, absent injunctive relief, he will be subject to such unconstitutional conduct in 

94 the future.

95 We have considered Shannon’s remaining arguments on appeal and find them to be 

96 without merit. Accordingly, we AFFIRM the judgment of the District Court.

97 FOR THE COURT: 

98 Catherine O=Hagan Wolfe, Clerk of Court