1 12-723-pr Cruz v. Staley 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 2 nd day of September, two thousand fourteen. PRESENT: GUIDO CALABRESI, REENA RAGGI, DENNY CHIN, Circuit Judges

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---------------------------- ---------------------------- -------------- HARRY CRUZ, Plaintiff-Appellant, v. No. 12-723-pr M. STALEY, Correction Se rgeant, J. YOUNG, K.L. SWEET, M. FIRST, JOHN DOE, Correction Officer, Defendants-Appellees.

---------------------------- ---------------------------- -------------- APPEARING FOR APPELLANT: RACHEL K. MARCOCCIA (David A. Kochman, Edward J. Estrada, David A. Scharfstein, on the brief ), Reed Smith LLP, New York, New York.2 APPEARING FOR APPELLEES: MARTIN A. HOTVET (Barbara D. Underwood, Solicitor General, Denise A. Hartman, Assistant Solicitor General, on the brief ), Assistant Solicitor General for Eric T. Schneiderman, Attorney General of the State of New York. Appeal from a judgment of the United States District Court for the Northern District of New York (Mae A. D’Agostino, Judge ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERE D, ADJUDGED, AND DECREED that the judgment entere d on January 19, 2012, is AFFIRMED. Plaintiff Harry Cruz appeals from the dism issal, after a jury trial, of his 42 U.S.C. § 1983 claims against named and unnamed New York State Corrections officials for the use of excessive force against Cruz while he was incarcerated at Coxsackie Correctional Facility. Cruz charged that defe ndants Staley and Young assaulted him, that defendant Staley failed adequately to supervise his subordinates, and that these officials, as well as defendant First, failed to intervene to prevent assaults of Cruz’s person. Cruz does not here challenge the jury’s ve rdict in favor of defendants on these charges. Rather, he faults the district court for denying him leav e to amend his complaint to indicate—and for then failing to charge the jury—that the excessive force claim against defendant First was

based on actual assault as well as a failure to prevent assault by others. See Fed. R. Civ. P. 15(b)(2). We review the denial of a Rule 15(b)(2) motion for abuse of discretion, see MacDraw, Inc. v. CIT Grp. Eq uip. Fin., Inc., 157 F.3d 956, 962 (2d Cir. 1998), and alleged jury instruction errors de novo, see Rasanen v. Doe, 723 F.3d 325, 331–32 (2d Cir. 2013).3 We assume the parties’ familia rity with the facts and record of the underlying proceedings, which we reference only as necessary to explain our decision to affirm. At trial, Cruz testified that defendant First assaulted him by placing his foot on Cruz’s face during the events at issue. Thereafter, at a charging conference, Cruz asked

that the verdict form be revised to indicate a claim for excessive force against First based

on this evidence. When the district court as ked whether such a claim was contained in the pleadings, Cruz’s counsel replied in the affi rmative. One defense counsel concurred, while another indicated that Cruz’s request e quated to asking that the pleadings conform to

the evidence. The district court indicated that this latter statement comported with its own thinking and agreed to make the requested change to the ve rdict form. Later that day, however, the district court reversed itself, e xplaining that it had reviewed the complaint and found that it accused only defendants Staley and Young— not First—with assault. Cruz’s counsel voiced no objection to the distri ct court’s decision not to modify the jury form as requested. Rather, he apologized fo r his mistaken representation that the claim had been pleaded and, when as ked whether he had anything furt her to raise with respect to the proposed instructions or verdic t form, replied that he did not. Insofar as Cruz now challenges the distri ct court ruling on the ground that his requested verdict form modificat ion was compelled by Fed. R. Civ. P. 15(b)(2) regardless of any pleading omission, we do not reach th at claim because Cruz never raised Rule 15(b)(2) in the district court as a ground fo r his request. See Fed. R. Civ. P. 51(c)(1)4 (requiring party who objects to jury instructi on to state “distinctly the matter objected to and the grounds for the objection”); Rasanen v. Doe, 723 F.3d at 332–33 (concluding that jury instruction objection not preserved wher e counsel failed to explain why instruction was required or to cite relevant case and ultimately acqui esced in instruction given); see generally In re Nortel Networks Corp. Se c. Litig., 539 F.3d 129, 132 (2d Cir. 2008) (referencing established rule that appellate court will not consider issue raised for first time on appeal). No different conclu sion is warranted by defense counsel’s statement that the requested amendment was akin to conformi ng the pleadings to th e evidence —language derived from Rule 15(b)(2)—because Cruz neve r adopted this passing comment as his own and certainly did not reference either the standa rd or the rule as an alternative ground for amendment when it became apparent that an assault claim against First had not been pleaded. Nor are we persuaded by Cruz’s contention that it woul d have been futile to advance such an argument. For us to excuse a defau lted argument as futile, a party’s position must previously have been made clea r to the district court and it must be apparent on the record that further argument would be unavailing. See Anderson v. Branen, 17 F.3d 552, 556–57 (2d Cir. 1994). Cruz satisfies neither condition with respect to the Rule 15(b)(2) error he advances on appeal. In such circumstances, we review only for plain error, a standard that requires Cruz to show (1) error, (2) that is plain, (3) that affected his substantial rights, and (4) that5 seriously affected the fairness, integrity, or p ublic reputation of the judicial proceedings. See United States v. Marcus, 560 U.S. 258, 262 ( 2010); Rasanen v. Do e, 723 F.3d at 332 & n.2. Even if we were to assume arguendo that Cruz satisfies the first two conditions, he cannot satisfy the third and four th in this case in which th e jury verdict in favor of defendants on all claims—including more seri ous assault claims against other officers during the same incident—indicates that it cred ited the officers’ accoun t of the events in dispute and did not credit Cruz’s. Accordingly, there is no basis to c onclude that any error in failing to submit an assault claim against defendant First affected Cruz’s substantial rights or seriously affected the fairness, inte grity, or public reputa tion of the judicial proceedings.

We have considered the remainder of Cruz ’s arguments and conclude that they are

without merit. The judgment of the district court is hereby AFFIRMED.

FOR THE COURT: CATHERINE O = HAGAN WOLFE, Clerk of Court