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 APP ENDIX OR AN ELECTRONIC DATABASE (WITH THE

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

COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

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

Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in 2
the City of New York, on the 6 th da y of September , two thousand eigh teen

. 3

4

PRESENT: 5

GERARD E. LYNCH

, 6

SUSAN L. CARNEY

, 7

CHRISTOPHER F. DRONEY

, 8 **Circuit Judges.** 9

_____________________________________ 10
J ESSE S HANNON
, 11

12
Plaintiff

- Appellant

, 13

v. 17

- 2092 14

15

D. V ENETTOZZI

, M ICHAEL C APRA
, P HILIP 16

H EATH

, W ILLIAM K EYSER
, J. W ERLAU
, 17

E DWARD K ASPER
, V. C OLON
, J ERMAINE 18

M C T URNER
, N ITOSCHA M OORE
, J. V ELEZ

, S. 19

G REGORY
, B RIAN F ISCHER
, 20

21 Defendants

- Appellees

. 22

_____________________________________ 23

24

FOR PLAINTIFF

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

26

FOR DEFENDANTS

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

General, Scott A. Eisman , Assistant Solicitor 28

General of Counsel, for Barbara D. Underwood

, 29 Attorney General of the State of New York, New 30

York, NY. 312 32 Appeal from a judgment of the United States District Court for the Southern Distr ict

1

of New York ( Forrest

, J .). 2

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 3

ADJUDGED, AND DECREED that the May 9, 2017 judgment of the D istrict C ourt is 4

AFFIRMED

. 5

Plaintiff

- A ppellant Jesse Shannon, proceeding pro se , appeals from the Di strict 6

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

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

Amendment

. Shannon cites several instances of sexual misconduct occurring between 9

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

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

legitimate search for contraband. 12

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

in light of our intervening decision in Crawford v. Cuomo , 7 96 F.3d 252 (2d Cir. 2015) , where 14

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

claims

— Boddie v. Schnieder , 105 F.3d 857 (2d Cir. 1997)

— too narrowly. See Shannon v. 16

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

D istrict C ourt to determine i n the first instance whether defendant prison officials were 18

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

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

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

31. 22

On remand, Shannon was represented by court

- appointed counsel

, who filed an 23

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

request injunctive relief. The D istrict C ourt again granted defendants’ motion to dismiss, this 253 time concluding that the officers were entitled to qualified immunity because the Eighth 26

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

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

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

we refer only as necessary to explain our decision to affirm the D istrict C ourt’s judgment

. 30

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

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

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

fav or.” Ganek v. Leibowitz , 874 F.3d 73, 80 (2d Cir. 2017). S tate officials are entitled to 34

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

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

(2d Cir. 2018) (inte rnal quotation marks omitted). We treat a right a s clearly established 37

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

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

alteration o mitted). 40

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

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

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

standards of decency . As w e recognized in Crawford

, in 2015 , the Eighth Amendment is 44

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

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

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

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

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

then and now, when it occurred in 2011

, our precedent did not establish that such conduct 50

was clearly unconstitutional. Rather , in Boddie , we had held that a “small number of incidents 514 in which [the plaintiff] allegedly was verbally harassed, touched, and pressed against without 52

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

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

claims at the pleading stage. See, e.g.

, Irvis v. Seally , No. 9:09

- CV

- 543 (GLS)( ATB ) , 2010 WL 55

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

, 2011 WL 454792 56

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

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

- CV

- 7778 58

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

sexual contact

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

punishment sufficient to su stain an Eighth Amendment claim

. ” ). 61

I n line with this conclusion, w e recently affirmed the district court’s grant of qualified 62

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

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

in Crawford, too, allegedly occurred

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

(summary order) . The same is true here . W e therefore affirm the D istrict C ourt’s grant of 66

Officer McTurner’s motion to dismiss on qualified immunity grounds

. 67

Relatedly, we affirm the D istrict C ourt’s dismissal of Shannon’s claims against Officer 68

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

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

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

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

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

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

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

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

intervene to stop such conduct. 775 Shannon also argues that his requests for declaratory and injunctive relief should have 78

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

underlying his assertion is correct, see, e.g.

, Sudler v. City of New York , 689 F.3d 159, 177 (2d 80

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

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

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

F.3d 1124, 1128 (2d Cir. 1994) (internal citation omitted)

. The failure of Shannon’s attorney 84

to retain his earlier

- mad e requests for injunctive and declaratory relief in the amended 85

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

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

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

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

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

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

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

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

the future. 94

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

without merit. Accordingly, we AFFIRM the judgment of the D istrict C ourt. 96

FOR THE COURT: 97

Catherine O = Hagan Wolfe, Clerk of Court 98