Warren v. Pataki

13‐3412
Warren v. Pataki
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2014
(Argued: June 5, 2015 Decided: May 17, 2016)
Docket No. 13‐3412
1
2
ROBERT WARREN, CHARLES BROOKS, 3
Consolidated Plaintiffs‐Appellants, 4
5
ROBERT TROCCHIO, SYLVIA TORRES, AS ADMINISTRATRIX OF THE 6
ESTATE OF JORGE BURGOS, JR., LOUIS MASSEI, 7
Consolidated Plaintiffs, 8
9
KENNETH BAILEY, 10
Plaintiff, 11
12
v. 13
14
GEORGE PATAKI, FORMER GOVERNOR OF NEW YORK STATE, SHARON 15
CARPINELLO, GLENN S. GOORD, EILEEN CONSILVIO, FORMER 16
EXECUTIVE DIRECTOR, MANHATTAN PSYCHIATRIC CENTER AND KIRBY 17
FORENSIC PSYCHIATRIC CENTER, ROBERT DENNISON, FORMER 18
CHAIRMAN OF THE NEW YORK STATE BOARD OF PAROLE AND CHIEF 19
EXECUTIVE OFFICER OF THE NEW YORK STATE DIVISION OF PAROLE, 20
DALE ARTUS, FORMER SUPERINTENDENT OF CLINTON CORRECTIONAL 21
FACILITY, 22
Defendants‐Appellees, 23
24
JOHN DOE(S), # 3, SUPERINTENDENT OF WYOMING CORRECTIONAL 25
FACILITY, JOHN DOE(S), # 4, SUPERINTENDENT OF ATTICA 26
CORRECTIONAL FACILITY, JOHN DOE(S), # 5, SUPERINTENDENT OF THE 27

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DOWNSTATE CORRECTIONAL FACILITY, JOHN DOES, # 6 THROUGH 20, 1
MEDICAL PERSONNEL WHO EXAMINED AND EVALUATED PLAINTIFF 2
PURSUANT TO NEW YORK STATE MENTAL HYGIENE LAW ARTICLE 9, 3
MICHAEL GIAMBRUNO, JAMES CONWAY, PAUL ANNETTS, EMILIA 4
RUTIGLIANO, PRABHAKAR GUMBULA, OLUSEGUN BELLO, ALLAN 5
WELLS, JONATHAN KAPLAN, MARY ANN ROSS, AYODEJI SOMEFUN, 6
MICHAL KUNZ, WILLIAM POWERS, LEO E. PAYANT, LAWRENCE 7
FARAGO, LUIS HERNANDEZ, SAMUEL LANGER, JEFFREY TEDFORD, 8
FORMER DEPUTY SUPERINTENDENT OF SECURITY, CLINTON 9
CORRECTIONAL FACILITY, WILLIAM J. SACKETT, FACILITY SENIOR 10
PAROLE OFFICER, CLINTON CORRECTIONAL FACILITY, JEAN LIU, 11
PSYCHIATRIST WHO EVALUATED PLAINTIFF FOR POSSIBLE CIVIL 12
COMMITMENT, ABADUL QAYYUM, CHARLES CHUNG, 13
Defendants.* 14
15
16
17
Before: SACK, HALL, and CARNEY, Circuit Judges. 18
The plaintiffs were civilly committed to state psychiatric facilities pursuant 19
to the New York State Sexually Violent Predator Initiative promulgated by the 20
executive branch of the New York State government in 2005. Challenging their 21
commitments by bringing suit in the United States District Court for the 22
Southern District of New York, the plaintiffs asserted that the defendants, who 23
were allegedly involved in the creation and execution of the Initiative, violated 24
the plaintiffsʹ rights under the Fourth and Fourteenth Amendments of the U.S. 25
* We accept the partiesʹ representations, made in response to our inquiry of counsel,
that all named defendants were duly served with process in this litigation and thus are
properly identified as defendants. The Clerk of Court is therefore respectfully directed
to amend the official caption as shown above.

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Constitution, and state law. The district court (Jed S. Rakoff, Judge) concluded, 1
on defendantsʹ motion for summary judgment, that the defendants were not 2
entitled to qualified immunity as a matter of law, a conclusion that we affirmed 3
on interlocutory appeal. Many of the claims were thereafter dismissed by the 4
district court on judgments as a matter of law, while the remainder were tried to 5
a jury. The jury found one defendant liable for procedural due‐process 6
violations, and awarded each plaintiff one dollar in nominal damages against 7
that defendant. The appellants now challenge the district courtʹs (1) jury 8
instruction on personal involvement; (2) denial of judgment as a matter of law on 9
procedural due‐process liability; (3) denial of judgment as a matter of law on the 10
plaintiffsʹ entitlement to actual, compensatory damages; (4) entry of judgment for 11
the defendants on the plaintiffsʹ false‐imprisonment claims on the grounds that 12
these claims were duplicative; and (5) limitations on depositions, and several 13
other evidentiary decisions. We affirm the judgment of the district court. 14
AFFIRMED. 15
KAREN R. KING (Jesse S. Crew, Jayme J. 16
Herschkopf, and Ekta R. Dharia, on the 17
brief), Paul, Weiss, Rifkind, Wharton & 18
Garrison LLP, New York, New York, for 19
Consolidated Plaintiffs‐Appellants. 20

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Ameer Benno, Benno & Associates P.C., 1
New York, New York, (on the brief), for 2
Consolidated Plaintiffs‐Appellants. 3
4
CLAUDE S. PLATTON (Barbara D. 5
Underwood, Cecelia C. Chang, on the brief), 6
for Eric T. Schneiderman, Attorney General 7
of the State of New York, New York, New 8
York, for Defendants‐Appellees Except George 9
Pataki. 10
ABBE DAVID LOWELL (Christopher D. 11
Man, on the brief), Chadbourne & Parke, 12
LLP, Washington, District of Columbia, for 13
Defendant‐Appellee George Pataki. 14
15
S ACK, Circuit Judge: 16
In 2005, then‐New York State Governor George Pataki launched the 17
Sexually Violent Predator Initiative (the ʺSVP Initiativeʺ or the ʺInitiativeʺ), 18
which provided for the involuntary civil commitment at state psychiatric 19
facilities of some ʺsexually violent predatorsʺ (ʺSVPsʺ) nearing the date of their 20
release from incarceration or supervision. The six plaintiffs in this case were 21
civilly committed to a psychiatric hospital in late 2005, during the first weeks the 22
Initiative was in effect. In 2008, they filed this action against several individuals 23
who allegedly designed or implemented the Initiative, asserting claims under the 24
Fourth Amendment, the substantive and procedural components of the 25

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Fourteenth Amendmentʹs Due Process Clause, the Fourteenth Amendmentʹs 1
Equal Protection Clause, and several provisions of New York state law. 2
In Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013), we affirmed on interlocutory 3
appeal the decision of the district court (Jed S. Rakoff, Judge) in Bailey v. Pataki, 4
722 F. Supp. 2d 443 (S.D.N.Y. 2010). There, the district court had concluded that 5
the defendants could not establish as a matter of law at the summary judgment 6
stage that they were entitled to qualified immunity on the plaintiffsʹ procedural 7
due‐process claims. In affirming, we concluded that if the material facts alleged 8
were proven, the Initiative would have violated the plaintiffsʹ clearly established 9
rights to procedural due process. Bailey, 708 F.3d at 403‐04. 10
Following our decision, the district court held a jury trial on the plaintiffsʹ 11
false‐imprisonment, procedural due‐process, substantive due‐process, and state 12
law claims against six defendants: former Governor George Pataki; former Office 13
of Mental Health Commissioner Sharon Carpinello; former Department of 14
Correctional Services Commissioner Glenn S. Goord; former Executive Director 15
of Manhattan Psychiatric Center Eileen Consilvio; former Superintendent of 16
Clinton Correctional Facility Dale Artus; and former Division of Parole head 17
Robert Dennison. During the trial, the district court entered judgments as a 18

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matter of law pursuant to Federal Rule of Civil Procedure 50 in the defendantsʹ 1
favor on the false‐imprisonment claims, among others, deeming them 2
impermissibly duplicative of the procedural due‐process claims. The court also 3
denied the plaintiffsʹ motions for judgment as a matter of law on their procedural 4
due‐process claims and their entitlement to actual, compensatory damages for 5
the alleged due‐process violations. The jury ultimately rejected the plaintiffsʹ 6
remaining substantive due‐process claims, found defendant Carpinello liable for 7
procedural due‐process violations, and awarded each plaintiff one dollar in 8
nominal damages against her. 9
Plaintiffs Robert Warren and Charles Brooks appeal, challenging the 10
district courtʹs (1) jury instruction on personal involvement; (2) denial of 11
judgment as a matter of law on procedural due‐process liability; (3) denial of 12
judgment as a matter of law on the plaintiffsʹ entitlement to actual, compensatory 13
damages; (4) entry of judgment for the defendants on the plaintiffsʹ false‐ 14
imprisonment claims on the grounds that these claims were duplicative; and (5) 15
limitations on depositions, and several other evidentiary decisions. The plaintiffs 16
dispute neither the judgment against them on their substantive due‐process 17
claims nor the denial of their requests for punitive damages. 18

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For the reasons set forth below, we conclude that the plaintiffsʹ arguments 1
lack merit. We therefore affirm the judgment of the district court. 2
BACKGROUND 3
Factual Background 4
We set forth the factual background underlying this appeal in some detail 5
in our opinion affirming on interlocutory appeal the district courtʹs denial of 6
summary judgment for the defendants on the grounds of qualified immunity. 7
See Bailey, 708 F.3d at 393‐99. We rehearse it here only insofar as we think it 8
necessary to an understanding of our resolution of this appeal. 9
The SVP Initiative 10
In October 2005, then‐New York State Governor George Pataki faced a 11
challenge: He had tried and failed several times to persuade the State Assembly 12
to establish a program that would permit the civil commitment and confinement 13
of designated sex offenders in New York State. Political pressure on the issue 14
was mounting in the wake of a widely publicized murder committed by a then‐ 15
recently paroled sex offender. Unwilling to wait any longer, as we described in 16
Bailey, id. at 394, the Governor directed New Yorkʹs Office of Mental Health 17

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(ʺOMHʺ) and Department of Correctional Services (ʺDOCSʺ)1 to ʺpush the 1
envelope of the Stateʹs existing involuntary commitment law,ʺ id. The result was 2
the SVP Initiative. Its principal theme was that every ʺsexually violent predatorʺ 3
in state prison should and would be evaluated for involuntary civil commitment 4
before being released from incarceration. 5
Sharon Carpinello, the Commissioner of the New York State Office of 6
Mental Health, with several others, developed an implementation plan for the 7
SVP Initiative. She presented it to Governor Patakiʹs representatives in mid‐ 8
September 2005. The Initiative provided for a commitment process based on the 9
procedures set forth in New York Mental Hygiene Law (ʺMHLʺ) § 9.27 et seq. 10
(ʺArticle 9ʺ), instead of the more stringent criteria for commitment set forth in 11
Correction Law § 402,2 which the SVP Initiativeʹs designers had also considered. 12
1 DOCS is now known as the Department of Corrections and Community Supervision,
and commonly referred to by the nearly identical acronym, ʺDOCCS.ʺ
2 As we explained in Bailey:
Section 9.27 of the Mental Hygiene Law (ʺMHLʺ), codified in
Article 9 of the MHL and entitled ʺInvoluntary admission on
medical certification,ʺ allows the director of a hospital to
accept any patient ʺalleged to be mentally ill and in need of
involuntary care and treatment upon the certificates of two
examining physicians.ʺ MHL § 9.27(a). The director must
also receive a sworn application explaining why the patient
needs mental health treatment. Id. After the patient arrives

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at the hospital, a member of the hospitalʹs psychiatric staff is
required to examine him and confirm that he should be
admitted. MHL § 9.27(e). The law requires that the nearest
relative of the patient, or any other person the patient has
designated, be given notice of the involuntary admission
within five days of admission. MHL § 9.29(b). Within sixty
days of admission, the patient or a friend or relative can
request a hearing on the involuntary admission, which is
required to be held within five days of receipt by the
hospital director of notice of the request. MHL § 9.31(a). If
no hearing has been held or court order issued, or if the
patient does not consent to the admission, the hospital
director is required to seek a court order within sixty days of
the patientʹs involuntary admission if the director wishes to
pursue the matter. MHL § 9.33(a).
Correction Law § 402 is entitled ʺCommitment of mentally ill
inmates.ʺ Under that law, if a staff physician at a prison
informs the prison superintendent that an inmate is mentally
ill, the superintendent asks a ʺjudge of the county court or
justice of the supreme court in the countyʺ to appoint two
physicians to examine the inmate. Correction Law § 402(1).
If both physicians conclude that hospitalization is
appropriate, they must produce certificates to that effect. Id.
The superintendent is then required to apply to the court for
a commitment order, and personally serve notice on the
inmate and his or her closest relative or, if relatives are
unknown or not within the state, ʺany known friend,ʺ five
days prior to the commitment. Correction Law § 402(3). The
Mental Hygiene Legal Services must then inform the inmate
(or, in appropriate cases, others concerned with the inmateʹs
welfare) of ʺthe procedures for placement in a hospital and
of the inmateʹs right to have a hearing, to have judicial
review with a right to a jury trial, to be represented by
counsel and to seek an independent medical opinion.ʺ Id.
The inmate is entitled to request a hearing before a judge
prior to any transfer to a psychiatric hospital. Correction
Law § 402(5). The procedural protections in section 402 may

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Under this process, before being released from prison, inmates who had been 1
deemed ʺsexually violent predatorsʺ would be evaluated by two OMH 2
psychiatrists, each of whom would render an opinion as to whether the inmate 3
should be involuntarily committed to a state psychiatric facility. Before the 4
evaluation, DOCS would provide OMH with criminal history reports for each 5
inmate. OMH would use these reports to create editorialized descriptions of the 6
inmateʹs criminal history and an assessment of their likelihood of recidivism. 7
They would then provide these materials to the OMH psychiatrists. If the OMH 8
psychiatrists recommended civil commitment, the inmate would be transferred 9
to a psychiatric center and examined by a psychiatrist to confirm the diagnosis. 10
Once admitted to the facility, the inmate would begin undergoing a specialized 11
course of treatment. 12
OMH officials informed Governor Patakiʹs office that they needed four to 13
six months to prepare for the implementation of the SVP Initiative, including 14
training the psychiatrists responsible for examining the inmates. Governor 15
Pataki nonetheless ordered that the SVP Initiative begin forthwith. 16
only be bypassed where admission to a hospital is sought on
an emergency basis. Correction Law § 402(9).
708 F.3d at 394‐95.

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Thereafter, under Goordʹs direction, DOCS began identifying inmates to be 1
evaluated for civil commitment by OMH psychiatrists. The pool of inmates was 2
drawn from those who had committed a violent offense as defined by New York 3
Penal Law § 70.02, and those who had committed a sex offense as defined by 4
Penal Law § 130, as well as from another list of inmates who had committed 5
felonies that had been, to some extent, sexually motivated. Any inmate who 6
refused to appear for an evaluation was potentially subject to disciplinary action, 7
and refusal could have constituted a parole violation. 8
The SVP Initiative was in effect only briefly. In 2006, after several inmates 9
who were confined under the SVP Initiative sought habeas corpus relief in state 10
courts, the New York Court of Appeals held that the SVP Initiative should 11
proceed under Correction Law § 402 instead of MHL Article 9, and ordered that 12
each civilly committed individual remaining in OMH custody be provided an 13
immediate retention hearing. State ex rel. Harkavy v. Consilvio, 7 N.Y.3d 607, 614, 14
859 N.E.2d 508, 512, 825 N.Y.S.2d 702, 706 (2006). Then, in 2007, the New York 15
State Legislature ended the SVP Initiative by enacting a comprehensive statutory 16
scheme for the civil commitment of dangerous sex offenders nearing release from 17
incarceration or supervision. 18

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The Defendantsʹ Roles 1
Each of the defendants played a unique role in the design and 2
implementation of the SVP Initiative. 3
George Pataki was the Governor of New York State from 1995 to 2006. He 4
authorized the SVP Initiative, made it the official policy of the State of New York, 5
and tasked DOCS and OMH with developing a detailed plan for its 6
implementation. 7
Sharon Carpinello was Commissioner of OMH at the time the SVP 8
Initiative was in place. Her duties as Commissioner included establishing, 9
developing, and coordinating OMH programs and procedures. She helped to 10
develop OMHʹs plan for implementing the SVP Initiative, reviewed the plan, and 11
approved it for submission to Governor Pataki. After Governor Pataki approved 12
the plan, she ordered OMH to carry it out. 13
Glenn Goord was the Commissioner of DOCS during the implementation 14
of the SVP Initiative. He was involved in the process of planning the SVP 15
Initiative, and understood that it called for inmates to be committed without a 16
prior hearing. Goord ordered DOCS to implement the SVP Initiative by selecting 17
for examination inmates due to be released and, depending on the result of the 18

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examination, arranging for their transportation to psychiatric hospitals for 1
commitment. 2
Eileen Consilvio was Executive Director of Manhattan Psychiatric Center 3
(ʺMPCʺ) when the SVP Initiative was created. She agreed to make the MPC 4
available to receive inmates designated for involuntary civil commitment under 5
the initiative. Consilvio handled the logistics of Warrenʹs and Brooksʹs civil 6
commitment there. 7
Dale Artus was Superintendent of the Clinton Correctional Facility3 8
(ʺClintonʺ), where Warren was imprisoned and to where he was returned after 9
he was civilly committed. Warren allegedly filed complaints about his 10
confinement with Artus, who did not respond to them. 11
At the time that the SVP Initiative became effective, Robert Dennison was 12
the highest‐ranking officer in the Division of Parole (ʺParoleʺ).4 Warren alleges 13
that when he was confined at Clinton, he wrote to Dennison complaining about 14
his reconfinement despite his having been granted parole. It is not clear from the 15
3 The Clinton Correctional Facility may be better known by the name of the town in
which it is located: Dannemora, New York. See Village of Dannemora,
http://www.villageofdannemora.com (last visited May 16, 2016).
4 In 2011, the Division of Parole was merged with DOCS (which, as explained above, is
now known as DOCCS).

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record what if anything Dennison did to investigate or otherwise address the 1
situation. 2
Plaintiffsʹ Confinement 3
Plaintiffs Robert Warren and Charles Brooks, both convicted sex offenders, 4
were involuntarily committed at the MPC and Kirby Psychiatric Center pursuant 5
to the SVP Initiative after they were scheduled to be released from prison. Their 6
involuntary civil commitment was based entirely on the recommendations of 7
OMH psychiatrists. 8
Robert Warren was serving a sentence for multiple crimes, including 9
sexual abuse in the first degree, when he was approved for parole and scheduled 10
to be conditionally released from prison on September 27, 2005, under the 11
supervision of Parole. The day before his scheduled release, and without prior 12
notice, two OMH psychiatrists evaluated Warren by conducting short 13
interviews, one of which was done remotely by video, and completing with 14
respect to each of them a so‐called Certification of Examining Physician to 15
Support an Application for Involuntary Admission form. On that basis, they 16
determined that he required involuntary commitment in a psychiatric hospital. 17
On the day of his scheduled release, he was transferred to a state psychiatric 18
institution instead. 19

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Less than two months later, Warren was again examined by a psychiatrist, 1
but this time he was found not to require confinement. On October 23, 2005, he 2
was discharged into the custody of Parole. He was never in fact released on 3
parole, however, nor was he given a parole revocation hearing. Instead, he was 4
returned to DOCS and housed at Clinton, where he remained until October 23, 5
2006—the latest possible expiration date for his original prison sentence.5 6
Charles Brooks had nearly completed serving his eight‐year prison term 7
for burglary and sexual abuse in the second degree when, on Friday, October 7, 8
2005, the last business day before his scheduled release, he was evaluated by two 9
OMH staff psychiatrists, who determined that he required involuntary 10
commitment in a psychiatric hospital. Brooks was then sent to the MPC, where 11
he remained confined pursuant to Article 9 until May 2009, at which time he was 12
5 Warren later challenged his reconfinement as part of a state habeas corpus petition.
The county court that heard the petition deemed his reconfinement to be unlawful, but
found the appropriate remedy to be ʺmerely a judgment directing petitionerʹs re‐release
to parole supervision subject to appropriate conditions imposed b[y] parole authorities,
including special conditions which must be satisfied prior to the petitionerʹs re‐release,ʺ
which in Warrenʹs case encompassed an approved‐residence special condition. Warren
v. Artus, No. 06‐15, at 7‐8 (N.Y. Sup. Ct., Clinton Cty., July 5, 2006), reproduced at Joint
Appendix filed on this Appeal (ʺJ.A.ʺ) 1498‐99. Warren was ultimately unable to obtain
Paroleʹs approval of a residence, and thus remained at Clinton until October 23, 2006.

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committed under the statute that replaced the SVP Initiative, MHL §§ 10.06‐.17 1
(ʺArticle 10ʺ).6 2
Procedural History 3
Brooks, Warren, and several other similarly situated persons filed actions 4
in 2008 in the U.S. District Court for the Southern District of New York seeking 5
compensatory damages for their involuntary civil commitment under the SVP 6
Initiative. The plaintiffs alleged violations of their Fourth Amendment right 7
against false imprisonment, their Fourteenth Amendment rights to equal 8
protection and substantive and procedural due process, and several rights under 9
state law. The actions were designated as related and consolidated for trial. 10
During discovery, the plaintiffs filed notices of depositions for all of the 11
defendants named in the complaints. The district court informed the plaintiffs 12
that they would be permitted to take the depositions of only four senior official 13
defendants of their choice, however, and that each deposition could not exceed 14
6 Brooksʹs confinement under Article 10 was the subject of separate litigation
challenging Article 10ʹs validity, whether the state had jurisdiction over Brooks as a
consequence of his illegal commitment under Article 9, and the adequacy of Brooksʹs
legal representation. The challenges were unsuccessful. See Brooks v. State, 120 A.D.3d
1577, 993 N.Y.S.2d 409 (4th Depʹt 2014), leave to appeal denied, 25 N.Y.3d 901, 30 N.E.3d
164, 7 N.Y.S.3d 273 (2015); Brooks v. Sawyer, No. 9:11‐CV‐248 (N.D.N.Y. Dec. 16, 2013);
State v. C.B., 88 A.D.3d 599, 931 N.Y.S.2d 300 (1st Depʹt 2011), appeal dismissed and leave
to appeal denied, 18 N.Y.3d 905, 963 N.E.2d 790, 940 N.Y.S.2d 213 (2012).

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two hours. The plaintiffs chose to, and did, take the depositions of Pataki, 1
Carpinello, Goord, and Consilvio. 2
On March 31, 2010, the parties filed cross‐motions for summary judgment. 3
The district court issued a ʺbottom lineʺ order granting the defendantsʹ motion in 4
part on statute of limitations grounds, but denying it on the issues of qualified 5
immunity and lack of personal involvement.7 The court also denied the 6
plaintiffsʹ motion in its entirety. The district court later issued two opinions and 7
orders setting forth its reasoning for its summary judgment decisions, which we 8
affirmed on interlocutory appeal. See Bailey v. Pataki, 708 F.3d 391 (2d Cir. 2013). 9
Back in the district court, both sides then filed motions in limine in 10
preparation for trial. Three of th0se motions are relevant to this appeal. First, the 11
plaintiffs moved to preclude the defendants from arguing that the plaintiffs 12
suffered no injury because they would have been confined nonetheless had they 13
received a constitutionally sufficient pre‐deprivation hearing. Second, the 14
plaintiffs moved to preclude evidence concerning their criminal histories, prison 15
disciplinary records, and OMH records, or, in the alternative, to bifurcate the 16
trial. Third, the plaintiffs moved to require the defendants to bear the burden of 17
7 Warrenʹs claim against defendant Paul Annetts was dismissed by the court for lack of
his personal involvement in the events at issue.

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disproving that plaintiffs had suffered compensable damages. The district court 1
denied the first two of these motions, and granted the third. 2
A jury trial was conducted between July 9 and July 31, 2013. The parties 3
called twenty‐nine fact witnesses in all, but no expert witnesses. 4
During the trial, the district court entered several judgments as a matter of 5
law in the defendantsʹ favor pursuant to Rule 50: for Artus and Dennison on all 6
claims, and for the other defendants on all state‐law claims except for negligence 7
claims against Carpinello and Consilvio. The district court also entered 8
judgment for the defendants on the false‐imprisonment claims because it deemed 9
them duplicative of the plaintiffsʹ procedural due‐process claims. The court 10
reasoned that the jury would need to find a procedural due‐process violation in 11
order to find that the false imprisonment was not otherwise ʺprivileged,ʺ and 12
that the damages recoverable under both causes of action were the same. J.A. 13
1293 (Trial Transcript (ʺTr.ʺ) 2871:20‐2874:14). 14
After the district court entered judgment for the defendants on the false‐ 15
imprisonment claims, the plaintiffs moved for judgment as a matter of law on 16
their procedural due‐process claims, and noted for the record their view that 17
judgment as a matter of law under Rule 50 would also be appropriate on the 18

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false‐imprisonment claims, whose dismissal they contested. The district court 1
denied the motion. 2
Before the case was submitted to the jury, the plaintiffs withdrew their 3
remaining negligence claims. As a result, the principal disputed issues sent to 4
the jury were whether: (1) the plaintiffs had established violations of their 5
substantive due‐process rights; (2) each defendant proximately caused the 6
procedural due‐process violations at issue; and (3) the plaintiffs were entitled to 7
compensatory or punitive damages, and if so, in what amount or amounts. 8
On July 26, 2013, the district court held a charging conference during 9
which the parties discussed how to instruct the jury on the meaning of proximate 10
causation in the context of a procedural due‐process violation. To establish a 11
section 1983 claim, ʺa plaintiff must establish a given defendantʹs personal 12
involvement in the claimed violation in order to hold that defendant liable in his 13
individual capacity.ʺ Patterson v. Cty. of Oneida, N.Y., 375 F.3d 206, 229 (2d Cir. 14
2004). To proximately cause a procedural due‐process violation, therefore, a 15
defendant must be personally involved in the violation. A plaintiff may establish 16
such personal involvement by making any one of five showings (the ʺColon 17
factorsʺ): 18

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(1) the defendant participated directly in the alleged constitutional 1
violation, (2) the defendant, after being informed of the violation 2
through a report or appeal, failed to remedy the wrong, (3) the 3
defendant created a policy or custom under which unconstitutional 4
practices occurred, or allowed the continuance of such a policy or 5
custom, (4) the defendant was grossly negligent in supervising 6
subordinates who committed the wrongful acts, or (5) the defendant 7
exhibited deliberate indifference to the rights of [the plaintiffs] by 8
failing to act on information indicating that unconstitutional acts 9
were occurring. 10
11
Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995). 12
In preparation for the charging conference, the plaintiffs requested a jury 13
instruction on proximate causation that listed the five Colon factors and 14
explained that each would be sufficient to establish a defendantʹs personal 15
involvement. During the conference, the court proposed an alternative 16
instruction that described the threshold for personal involvement more briefly, 17
with language that tracked only the third Colon factor. The plaintiffs made no 18
objection to the courtʹs proposed instruction on the threshold requirement for 19
finding personal involvement. See J.A. 1304 (Tr. 2915:21‐2916:8). 20
The court subsequently delivered its proposed proximate causation 21
instruction, with one modification not relevant here, to the jury. The court first 22
explained that each defendant could be held liable for violating a plaintiffʹs 23
procedural due‐process rights if he or she took steps that ʺproximately caused 24

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that plaintiff to be involuntarily committed under the sexually‐violent predator 1
initiative.ʺ J.A. 1350 (Tr. 3100:02‐04). The court then addressed the threshold for 2
personal involvement: 3
If a given defendant played a material role, directly or indirectly, in 4
creating or implementing, even in good faith, the aforementioned 5
aspects of the sexually‐violent predator initiative that were 6
constitutionally defective, and that foreseeably would be applied to 7
someone in a given plaintiff[ʹs] position, that would be sufficient to 8
establish that that defendant proximately caused the violation of 9
that plaintiff[ʹs] constitutional right to procedural due process. 10
J.A. 1350 (Tr. 3100:17‐24). 11
On the issue of damages, the district court gave the following instruction: 12
In addition to disputing plaintiffsʹ proof of damages in various 13
respects, defendants also raise a special defense, namely, that even if 14
the given plaintiff you are considering had been given full due 15
process, he would still have been involuntarily committed, and so he 16
did not suffer any actual injury. On this defense, it is the defendants 17
who bear the burden of proving this defense by a preponderance of 18
the credible evidence. If you find that, notwithstanding [] a 19
defendant[ʹs] liability on a given claim, the plaintiff who made that 20
claim did not suffer any injury, you should then award damages of 21
one dollar. These are called ʺnominal damages.ʺ 22
J.A. 1351 (Tr. 3102:20‐3103:05). 23
On July 31, 2013, the jury reached its verdict. It rejected the plaintiffsʹ 24
substantive due‐process claims and found Carpinello alone liable for procedural 25
due‐process violations. It further found that the plaintiffs were not entitled to 26

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compensatory damages or punitive damages, and awarded nominal damages of 1
one dollar to each plaintiff. 2
On August 8, 2013, the plaintiffs renewed their motion for judgment as a 3
matter of law pursuant to Rule 50(b), which the district court summarily denied. 4
This appeal followed. 5
DISCUSSION 6
I. Standards of Review 7
A. Judgment as a Matter of Law 8
We review the district courtʹs decision to grant or deny a Rule 50 motion 9
for judgment as a matter of law de novo. SEC v. Ginder, 752 F.3d 569, 574 (2d Cir. 10
2014). 11
B. Jury Instructions 12
We review ʺa claim of error in jury instructions de novo, reversing only 13
where appellant can show that, viewing the charge as a whole, there was a 14
prejudicial error.ʺ United States v. Tropeano, 252 F.3d 653, 657‐58 (2d Cir. 2001). 15
ʺʹAn erroneous instruction requires a new trial unless the error is harmlessʹ . . . 16
[and a]n error is harmless only if the court is convinced that the error did not 17
influence the juryʹs verdict.ʺ Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 116 (2d 18
Cir. 2000) (quoting LNC Invs., Inc. v. First Fid. Bank, N.A. N.J., 173 F.3d 454, 460 19

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(2d Cir. 1999)). If an instruction improperly directs the jury on whether a party 1
has satisfied its burden of proof, ʺit is not harmless error because it goes directly 2
to the [merits of the] claim, and a new trial is warranted.ʺ Id. (quoting LNC Invs., 3
Inc., 173 F.3d at 462). 4
C. Discovery Rulings 5
ʺWe review a district courtʹs discovery rulings for abuse of discretion.ʺ 6
Moll v. Telesector Res. Grp., 760 F.3d 198, 204 (2d Cir. 2014). ʺA district court has 7
abused its discretion if it has (1) based its ruling on an erroneous view of the law, 8
(2) made a clearly erroneous assessment of the evidence, or (3) rendered a 9
decision that cannot be located within the range of permissible decisions.ʺ Lynch 10
v. City of New York, 589 F.3d 94, 99 (2d Cir. 2009) (internal quotation marks 11
omitted). 12
D. Evidentiary Rulings 13
We review the district courtʹs evidentiary rulings for abuse of discretion. 14
Manley v. AmBase Corp., 337 F.3d 237, 247 (2d Cir. 2003). We ʺgive district court 15
judges wide latitude in determining whether evidence is admissible at trial.ʺ 16
Meloff v. N.Y. Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001) (internal quotation 17
marks omitted). Even if we conclude that the district court abused its discretion, 18
however, ʺan erroneous evidentiary ruling warrants a new trial only when a 19

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substantial right of a party is affected, as when a juryʹs judgment would be 1
swayed in a material fashion by the error.ʺ Lore v. City of Syracuse, 670 F.3d 127, 2
155 (2d Cir. 2012) (internal quotation marks omitted). We ʺwill not grant a new 3
trial if we find that the improperly admitted evidence was ʹharmless—i.e., [that] 4
the evidence was unimportant in relation to everything else the jury considered 5
on the issue in question.ʹʺ Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 6
2010) (brackets in original) (quoting United States v. Germosen, 139 F.3d 120, 127 7
(2d Cir. 1998)). ʺAn error is harmless if we ʹcan conclude with fair assurance that 8
the evidence did not substantially influence the jury.ʹʺ Cameron, 598 F.3d at 61 9
(quoting United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992)). In civil cases, the 10
burden falls on the appellant to show that the error was not harmless and that ʺit 11
is likely that in some material respect the factfinderʹs judgment was swayed by 12
the error.ʺ Tesser v. Bd. of Educ. of City Sch. Dist. of City of N.Y., 370 F.3d 314, 319 13
(2d Cir. 2004) (internal quotation marks omitted). 14
II. Jury Instructions on Personal Involvement 15
The plaintiffs now argue, for the first time, that the district court made a 16
prejudicial error in the portion of its proximate‐causation instruction that 17
described the standard for personal involvement. The plaintiffs contend that the 18
instruction improperly took into account only the third of the five Colon factors, 19

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and that the district court improperly added the terms ʺmaterialʺ and 1
ʺforeseeablyʺ to the third Colon factor, thereby increasing the plaintiffsʹ burden of 2
proof. Blue 33‐36. The plaintiffs waived these arguments by failing to object to 3
the instruction at trial, and we accordingly affirm as to this issue. See United 4
States v. Bradley, 812 F.2d 774, 778 (2d Cir.) (a ʺfailure to object at trialʺ to a jury 5
instruction ʺresult[s] in a waiver of any claim of error on appealʺ), cert. denied, 484 6
U.S. 832 (1987). The plaintiffs had previously requested a substantially different 7
proximate‐causation charge as to their procedural due‐process claims, which 8
included all five Colon factors. When the district court proposed its shorter 9
alternative, however, the plaintiffsʹ counsel made no mention of Colon or the 10
inclusion of the terms ʺmaterialʺ or ʺforeseeably.ʺ8 Instead, the plaintiffsʹ counsel 11
objected only to the omission of the words ʺwithout counselʺ from another 12
portion of the instruction. After the district court agreed with this objection, the 13
plaintiffsʹ counsel stated, ʺ[a]nd thatʹs all we had for that one.ʺ See J.A. 1304 (Tr. 14
2915:21‐2916:8). 15
8 The plaintiffsʹ counselʹs failure to object to the inclusion of the terms ʺmaterialʺ and
ʺforeseeablyʺ in the proximate‐cause instruction was understandable, because the
proximate‐cause inquiry is focused on whether ʺthe causal connection between the
defendantʹs action and the plaintiffʹs injury is sufficiently direct,ʺ Gierlinger v. Gleason,
160 F.3d 858, 872 (2d Cir. 1998), and the district courtʹs use of those terms was therefore
apt.

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We ʺwill disregard the failure to object where there is plain error affecting 1
substantial rights that goes to the very essence of the case, or where the partyʹs 2
position has previously been made clear to the trial court and it was apparent 3
that further efforts to object would be unavailing.ʺ Anderson v. Branen, 17 F.3d 4
552, 556‐57 (2d Cir.) (citations omitted), rehʹg denied, 27 F.3d 29 (2d Cir. 1994). 5
Neither condition is met here. As to the former, a substantial right is not 6
implicated if there is no likelihood that the error or defect affected the outcome of 7
the case, see, e.g., Tesser, 370 F.3d at 319, and there is no evidence in the record 8
before us sufficient to establish that the plaintiffs could have demonstrated any 9
of the other four Colon factors. As to the latter condition, when the plaintiffsʹ 10
counsel requested an instruction as to all of the Colon categories early in the trial, 11
the district court judge responded that he ʺagree[d] . . . weʹre going to have to 12
spell this out in some detail in the final instructions.,ʺ J.A. 706 (Tr. 542:07‐08). 13
That hardly suggests that further objections would have been unavailing. 14
Accordingly, the plaintiffsʹ arguments as to the personal‐involvement instruction 15
have been waived. 16

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III. Judgment as a Matter of Law on the Plaintiffsʹ Procedural Due‐ 1
Process Claims 2
The district court properly granted judgment as a matter of law to 3
Dennison and Artus pursuant to Rule 50(a). The district court also properly 4
denied the plaintiffsʹ renewed judgment as a matter of law against Consilvio, 5
Goord, and Pataki under Rule 50(b). 6
Judgment as a matter of law is appropriate ʺonly if [the court] can 7
conclude that, with credibility assessments made against the moving party and 8
all inferences drawn against the moving party, a reasonable juror would have 9
been compelled to accept the view of the moving party.ʺ Zellner v. Summerlin, 10
494 F.3d 344, 370‐71 (2d Cir. 2007) (emphasis removed and internal quotation 11
marks omitted). A Rule 50 motion may only be granted if ʺthere exists such a 12
complete absence of evidence supporting the verdict that the juryʹs findings 13
could only have been the result of sheer surmise and conjecture, or the evidence 14
in favor of the movant is so overwhelming that reasonable and fair minded 15
[persons] could not arrive at a verdict against [it].ʺ Ginder, 752 F.3d at 574 16
(brackets in original) (quoting Tepperwien v. Entergy Nuclear Operations, Inc., 663 17
F.3d 556, 567 (2d Cir. 2011)). 18

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The district court properly dismissed the action against Artus and 1
Dennison pursuant to their Rule 50(a) motion. They were defendants only as to 2
Warrenʹs claim that he was improperly returned to prison rather than released 3
on parole after he was found not to require further civil commitment. There was 4
no evidence that either defendant was responsible—either directly or 5
indirectly—for Warrenʹs continued imprisonment. To be sure, Warren testified 6
that he wrote to them to lodge complaints about his reconfinement, but that 7
testimony was an insufficient basis for a reasonable juror to conclude that Artus 8
and Dennison knew of Warrenʹs plight, let alone had the ability or responsibility 9
to do something about it. 10
The district court also correctly declined to hold as a matter of law that 11
Consilvio, Goord, and Pataki were liable for violating the plaintiffsʹ procedural 12
due‐process rights. The evidence does not compel a finding that these 13
defendants proximately caused the procedural due‐process violations allegedly 14
suffered by the plaintiffs. The evidence at trial established that Consilvio—who 15
was the Executive Director of the MPC in 2005—was aware that the plaintiffs 16
were being committed under Article 9, but only handled the logistics for civil 17
confinement at the facility. She was not otherwise involved in planning or 18

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carrying out the SVP Initiative. A reasonable juror would not have been 1
compelled to conclude, based on this evidence, that Consilvio proximately 2
caused any of the alleged violations of the plaintiffsʹ constitutional rights, given 3
her mere logistical role in one of the intermediate steps of the civil commitment 4
process. 5
The evidence at trial with respect to Goord established that while he was 6
involved in the implementation of the SVP Initiative—by overseeing the sharing 7
of information between DOCS and OMH about soon‐to‐be‐released inmates and 8
assisting with the transportation of inmates to psychiatric facilities—he played 9
only a minor role in designing it. Although Goord participated in several 10
planning meetings, this evidence, standing alone, was not so powerful that it 11
would compel a reasonable juror to conclude that Goord proximately caused the 12
relevant harm: the plaintiffsʹ confinement without notice or a pre‐deprivation 13
hearing. 14
Finally, a reasonable juror would not have been compelled to conclude 15
that Pataki played a material role in creating, coordinating, or implementing the 16

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specific aspects of the SVP Initiative that were constitutionally defective.9 Pataki 1
testified that he ʺdirected [his] team to work with OMH and to work with 2
[DOCS] to put in place the program,ʺ J.A. 1071 (Tr. 1988:02‐03), and that he ʺgave 3
a green light to go forward with the program,ʺ J.A. 1070 (Tr. 1987:04‐05). But 4
with respect to the degree of his knowledge and involvement, he testified: 5
Before there was a court decision, I did not understand any of the 6
specifics of the initiative other than that there were three medical 7
professionals who had to evaluate and conclude that the inmates 8
were mentally ill and posed an imminent threat to themselves or 9
others, and that they were entitled to a hearing. Beyond that, I 10
didn’t know any of the other details. I didn’t know what section of 11
law was being used; I didn’t know even what article of law was 12
being used. That was left to the professionals to determine. 13
J.A. 1073 (Tr. 1999:11‐20). He testified further that he ʺdidn’t know whether the 14
hearing was before or after the commitment.ʺ J.A. 1073‐74 (Tr. 1999:25‐2000:03). 15
Pataki had admitted earlier in the course of the litigation that he ordered 16
DOCS and OMH to use the MHL § 9.27 standard for evaluating individuals 17
under the SVP Initiative and to follow the procedures laid out in Article 9. The 18
district court cautioned the jury, however, that none of these admissions 19
9 In Bailey, we explained that the SVP Initiativeʹs use of the procedures set forth in
Article 9 did not provide for adequate due process protections, because ʺabsent exigent
circumstances . . . it was unconstitutional to civilly commit inmates to a psychiatric
facility prior to any notice or adversarial hearing.ʺ 708 F.3d at 408.

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ʺnecessarily mean[t] that he personally ordered that.ʺ J.A. 1087‐88 (Tr. 2055:22‐ 1
2056:01). In light of this evidence, and accepting Patakiʹs testimony as credible, a 2
reasonable juror would not have been compelled to conclude that Pataki played 3
a material role in creating, coordinating, or implementing the defective aspects of 4
the SVP Initiative. 5
In sum, the district court did not err in granting the defendantsʹ Rule 50(a) 6
motion for judgment as a matter of law as to Artus and Dennison or in denying 7
the plaintiffsʹ Rule 50(b) renewed motion for judgment as a matter of law against 8
Consilvio, Goord, and Pataki. 9
IV. Actual Damages 10
The plaintiffs argue that the district court erred in denying them judgment 11
as a matter of law as to whether the defendantsʹ alleged due‐process violations 12
caused the plaintiffsʹ injuries, and therefore whether they were entitled to actual 13
damages instead of only nominal damages. The defendants counter that the 14
district court improperly shifted the burden of proof on this issue to them. We 15
conclude that the district court did not err in denying judgment as a matter of 16
law to the plaintiffs on the causation question and submitting it to the jury. 17
Because the defendants shouldered the burden of proof on this issue, we need 18

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not reach their arguments as to whether the district courtʹs decision to shift this 1
burden to them was permissible. 2
It is well‐settled that ʺ[a]bsent a showing of causation [of the plaintiffsʹ 3
injuries by the defendantsʹ unconstitutional acts] and actual injury, a plaintiff is 4
entitled only to nominal damages.ʺ Miner, 999 F.2d at 660 (citing Carey v. Piphus, 5
435 U.S. 247, 263, 266‐67 (1978); Patterson, 905 F.2d at 568). At trial, the 6
defendants asserted what the parties term a ʺno harm, no foulʺ defense10—they 7
argued, in essence, that even if the plaintiffs had been provided constitutionally 8
adequate pre‐confinement process they would nonetheless have been committed. 9
The plaintiffs argue that the district court erred in denying them judgment as a 10
matter of law on this issue, and that because the defendants did not call any 11
expert witnesses to opine on what might have happened in a hypothetical pre‐ 12
deprivation hearing in 2005, the defendants could not satisfy their burden of 13
proof. The plaintiffs further assert that the jury would have to engage in 14
10 We reject the plaintiffsʹ argument that the defendants waived their ʺno harm, no
foulʺ defense because they failed to plead it as an affirmative defense. Causation is a
requirement for establishing a viable section 1983 procedural due‐process claim, not an
affirmative defense that must be raised in the pleadings. And in any event, the
defendantsʹ failure to plead this defense was excusable because it was not clear at the
outset that they would bear the initial burden on this issue, as the district court correctly
recognized. See J.A. 555‐56 (Tr. 60:22‐61:03).

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impermissible speculation in order to resolve this question. We disagree. There 1
was sufficient evidence before the jury to support a finding that Warren and 2
Brooks would have been committed even if they had received due process, and 3
therefore that the defendants had carried their burden on this issue. 4
The plaintiffs were constitutionally entitled only to ʺnotice and an 5
adversarial hearing prior to civil commitment.ʺ Bailey, 708 F.3d at 405. Principles 6
of due process did not require the defendants to provide the plaintiffs with a 7
hearing conducted pursuant to Correction Law § 402, nor were they 8
constitutionally entitled to call a physician, psychiatrist, or expert witnesses 9
favorable to them, no matter that their ability to call such witnesses might have 10
rendered the proceedings fairer. Thus, in establishing their ʺno harm, no foulʺ 11
defense, the defendants were not required to present evidence—either through 12
expert testimony or otherwise—establishing that the plaintiffs would have been 13
confined under Correction Law § 402 or under Article 10, or that the plaintiffs 14
would have been committed in the face of testimony by favorable witnesses. 15
Rather, the defendants needed only to have presented some evidence sufficient to 16
enable a jury to conclude that the plaintiffs would have been civilly committed 17
following an adversarial proceeding on notice. 18

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This the defendants did. As the district court correctly noted, the trial 1
itself replicated the presentation of proof at a constitutionally adequate pre‐ 2
commitment hearing, allowing the jury to evaluate what the strength of the 3
Stateʹs evidence at such a hearing would have been. J.A. 1301 (Tr. 2905:19‐22). 4
Further, as the plaintiffs acknowledge, Pls.ʹ Br. at 45, the examining OMH 5
psychiatrists testified regarding information that they were given in 2005 and 6
conclusions that they drew based on that information, which is presumably what 7
an examining OMH psychiatrist would have testified to at a properly convened 8
and conducted pre‐commitment hearing. The cross‐examination by the 9
plaintiffsʹ counsel of the examining OMH psychiatrists—which the district court 10
described as ʺpiercing,ʺ J.A. 1301 (Tr. 2903:07‐08)—permitted the jury to see 11
ʺwhat would [have] happen[ed] if the plaintiff[s] had had counselʺ at a pre‐ 12
commitment hearing in 2005. J.A. 1300 (Tr. 2899:01‐05). The jury was well aware 13
that the psychiatrists were employed by OMH, and it was free to take that fact 14
into account in assessing damages. Even though the jury did not have before it 15
the testimony of any court‐appointed or plaintiff‐retained psychiatrist, it could 16
nevertheless infer from the state psychiatristsʹ testimony what other psychiatrists 17
might have recommended. 18

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Permitting the defendants to establish their defense based on such 1
evidence might, of course, have placed the plaintiffs at a decided disadvantage in 2
light of the fact that the defendants effectively deprived the plaintiffs of evidence 3
that would have been relevant to establishing causation: a contemporaneous pre‐ 4
deprivation psychiatric evaluation by an independent party. But once the 5
defendants carried their burden, the plaintiffs had an obligation to rebut it. The 6
plaintiffsʹ challenge in mounting a rebuttal, while perhaps difficult, was not 7
necessarily impossible to overcome. For instance, they might have presented 8
expert testimony on the variability of medical opinions,11 or testimony based on a 9
contemporary medical examination that cast doubt on the 2005 evaluations of the 10
OMH doctors. They did not pursue either possibility, or use any alternative 11
approach. 12
In light of the evidence at trial, then, a juror would not have been 13
compelled to accept the plaintiffsʹ view that the defendants had failed to carry 14
their burden on their ʺno harm, no foulʺ defense. The district court therefore did 15
11 As the Supreme Court has recognized, ʺ[t]he subtleties and nuances of psychiatric
diagnosis render certainties virtually beyond reach in most situations.ʺ Addington v.
Texas, 441 U.S. 418, 430 (1979). We have also acknowledged that ʺsome psychiatrists
tend to favor institutionalization more often than others who tend to favor release.ʺ
Goetz v. Crosson, 967 F.2d 29, 34 (2d Cir. 1992).

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not err in denying the plaintiffs judgment as a matter of law on this issue and 1
submitting it to the jury. 2
V. Judgment as a Matter of Law on the False‐Imprisonment Claims 3
We conclude that the district court did not err in granting judgment as a 4
matter of law for the defendants on the false imprisonment claims on the basis 5
that these claims duplicated the plaintiffsʹ procedural due‐process claims. The 6
district court reasoned that the false‐imprisonment and procedural due‐process 7
claims were duplicative on the grounds that, first, the jury would need to find a 8
procedural due‐process violation in order to conclude that the false 9
imprisonment was not otherwise ʺprivileged,ʺ and second, the damages for both 10
claims were necessarily the same. See J.A. 1293 (Tr. 2871:20‐2874:14). As to the 11
first basis for the courtʹs decision, the fact that two claims share a common 12
element of proof does not necessarily render them duplicative, and because the 13
plaintiffsʹ procedural due‐process claims were submitted to the jury, the first 14
ground was, standing on its own, insufficient to support the entry of judgment as 15
a matter of law for the defendants on the false‐imprisonment claims. Perhaps it 16
is usually the better practice to allow all liability claims to go to the jury, with 17
careful instructions not to award duplicative damages. But the district court was 18
correct here that the plaintiffs could not have obtained any additional damages if 19

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37
their false imprisonment claims had been submitted to the jury, and therefore no 1
new trial is warranted. 2
ʺRights, constitutional and otherwise, do not exist in a vacuum. Their 3
purpose is to protect persons from injuries to particular interests, and their 4
contours are shaped by the interests they protect.ʺ Carey, 435 U.S. at 254. 5
Damages awards in section 1983 suits therefore ʺmust be considered with 6
reference to the nature of the interests protected by the particular constitutional 7
right in question,ʺ and accordingly, ʺthe elements and prerequisites for recovery 8
of damages appropriate to compensate injuries caused by the deprivation of one 9
constitutional right are not necessarily appropriate to compensate injuries caused 10
by the deprivation of another.ʺ Id. at 264‐65. Thus, the compensatory damages 11
calculation for different constitutional violations turns on the nature of the 12
injuries suffered even though the amount of compensatory damages awarded is 13
in any event limited to the actual injuries suffered by the plaintiff. 14
In the procedural due‐process context, actual damages are based on the 15
compensation for injuries that resulted from the plaintiffʹs receipt of deficient 16
process. See Poventud v. City of New York, 750 F.3d 121, 135‐36 (2d Cir. 2014) (en 17
banc). To calculate such damages, courts must determine whether a different 18

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38
outcome would have been obtained had adequate procedural protections been 1
given. If the outcome would not have been different, the plaintiff is 2
presumptively entitled to no more than nominal damages. See id.; see also Carey, 3
435 U.S. at 262‐63. If, however, a plaintiff can show that he suffered mental and 4
emotional distress caused by the denial of procedural due process itself (as 5
opposed to the mental and emotional distress caused by, for instance, the 6
incarceration that would have occurred absent the due‐process violation), he is 7
entitled to recover actual damages only to that extent. See Carey, 435 U.S. at 263 8
(distinguishing between distress attributable to ʺthe justified deprivationʺ and 9
that caused by ʺdeficiencies in procedureʺ). 10
In the false‐imprisonment context, ʺupon pleading and proving merely the 11
unlawful interference with his liberty, the plaintiff is entitled to ʹgeneralʹ 12
damages for [proved injuries arising from] loss of time and humiliation or 13
mental suffering.ʺ Kerman v. City of New York, 374 F.3d 93, 125 (2d Cir. 2004) 14
(some internal quotation marks omitted).12 15
12 The compensatory damages that may be awarded for false imprisonment
fall into two categories: general damages and special damages. General
damage is a harm of a sort inseparable from the unlawful restraint. . . .
Items of special damage commonly include physical discomfort, shock, or

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Although at first blush these categories of damages appear to be different, 1
in this case, all of the damages that the plaintiffs could have sought from a false 2
imprisonment claim were also available on the plaintiffsʹ procedural due process 3
claim, and were rejected by the jury. The defendants were able to prove to the 4
juryʹs satisfaction that the plaintiffs would have been confined even if they had 5
been given a pre‐confinement hearing. That barred any award of compensatory 6
damages for the plaintiffsʹ loss of time outside confinement, under both a 7
procedural‐due‐process and a false‐imprisonment theory. 8
It is possible that other claims for compensatory damages remained viable. 9
For example, the plaintiffs alleged injuries related to the humiliation and mental 10
suffering caused by the unlawfulness of their confinement. J.A. 205‐08. But, if 11
actually proven, those injuries would have been similarly available under a 12
procedural due process theory, as Carey makes clear. See Carey, 435 U.S. at 264 13
(recognizing that ʺmental and emotional distress caused by the denial of 14
procedural due process itself is compensable under § 1983,ʺ even when proper 15
procedures would have had the same result). The jury, by awarding no such 16
injury to health, loss of employment, and injury to the plaintiffʹs
reputation or credit, and must be specifically pleaded and proven.
Kerman, 374 F.3d at 125 (citations, internal quotation marks, and alterations omitted).
The plaintiffs here did not seek special damages.

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damages, necessarily concluded that the plaintiffs had failed to prove any such 1
injury. Remanding this case to the district court to allow the plaintiffs to pursue 2
such damages on a false imprisonment claim would be, in effect, an invitation to 3
retry questions already presented to, and rejected by, a jury. 4
Because the jury found that the plaintiffs suffered no compensable injury 5
that could be linked to their false imprisonment claim, no new trial on their false 6
imprisonment claim is necessary. We therefore affirm the judgment of the 7
district court on this claim. 8
VI. Discovery and Evidentiary Issues 9
Lastly, the plaintiffs challenge the district courtʹs decision to limit the 10
plaintiffs to four two‐hour depositions of the defendants; its decision to permit 11
the defendants to make several statements to the jury that the plaintiffs 12
characterize as inflammatory, irrelevant, and cumulatively prejudicial; and its 13
admission of evidence regarding Brooksʹs Article 10 hearing in 2009. We reject 14
all three arguments. 15
A. Limitation on Depositions 16
ʺA district court has wide latitude to determine the scope of discovery, and 17
we ordinarily defer to the discretion of district courts regarding discovery 18
matters.ʺ In re ʺAgent Orangeʺ Prod. Liab. Litig., 517 F.3d 76, 103 (2d Cir. 2008) 19

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(brackets and internal quotation marks omitted), cert. denied sub nom. Isaacson v. 1
Dow Chem. Co., 555 U.S. 1218 (2009), and Stephenson v. Dow Chem. Co., 555 U.S. 2
1218 (2009). We see no reason to second‐guess the district courtʹs decision to 3
limit the plaintiffs to four depositions of no longer than two hours each of the 4
key players involved in the SVP Initiative. Because of the number of defendants, 5
the number of people involved in the case, and the breadth of its subject matter, 6
the district courtʹs eagerness to keep the discovery process on a tight leash is 7
easily understood. Moreover, as the district court pointed out, the plaintiffsʹ 8
inability to depose certain witnesses before trial was mitigated by the plaintiffsʹ 9
counselʹs ability to request permission to depose witnesses during the trial— 10
which requests the district court granted as to other witnesses—or to question 11
them outside the presence of the jury. J.A. 1170 (Tr. 2385:13‐20). We therefore 12
decline to disturb the judgment on this basis. 13
B. Inflammatory Statements 14
In their opening statements, defense counsel referred to the plaintiffsʹ 15
ʺserious sex offenses like rape and sexual abuse of children,ʺ J.A. 577 (Tr. 28:20‐ 16
21), ʺunspeakable crimes,ʺ J.A. 583 (Tr. 49:20), and ʺsickening backgrounds,ʺ J.A. 17
583 (Tr. 51:09‐10), as well as the ʺcrimes you cannot even imagineʺ committed by 18
ʺpeople like the plaintiffs,ʺ J.A. 583 (Tr. 49:09). Similarly, in their summation, 19

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defense counsel graphically described the plaintiffsʹ sex offenses; described the 1
plaintiffs as among ʺthe worst criminals in society,ʺ J.A. 1345 (Tr. 3078:21‐22); and 2
implored the jury to remember that the ʺsix or more victims of these plaintiffs, 3
they are not just numbers; they are mothers, wives, and daughters,ʺ J.A. 1347 (Tr. 4
3086:02‐03). Defense counsel also made several statements to which the plaintiffs 5
objected as inaccurate, including that Warrenʹs ʺplea was based on his having 6
been charged [with] raping his 8‐year‐old stepdaughter.ʺ J.A. 580 (Tr. 39:09‐10). 7
The plaintiffs argue that the district court abused its discretion in permitting 8
defense counsel to dwell on and so characterize the plaintiffsʹ sex offenses, which 9
the plaintiffs argue was both irrelevant and cumulatively prejudicial. 10
While we are troubled by the specter of a jury deciding this case on the 11
basis of revulsion against the plaintiffsʹ crimes rather than strictly on the 12
evidence of the alleged deprivation of their constitutional rights, we must 13
nonetheless affirm. First and most important, the plaintiffs did not object to 14
these comments at the time of opening or closing statements. The plaintiffsʹ 15
arguments in this regard were therefore waived. Cf. United States v. Terry, 702 16
F.2d 299, 317 (2d Cir.) (defendant waived claims based on statement in 17
summation by failure to contemporaneously object), cert. denied sub nom. 18

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43
Guippone v. United States, 464 U.S. 992 (1983), and Williams v. United States, 461 1
U.S. 931 (1983). Second, as to closing statements, both plaintiffs had earlier 2
opened the door to information about their past through their counselʹs broad 3
questioning of them on direct examination.13 4
C. Admission of Evidence of Brooksʹs Article 10 Hearing 5
We also reject the plaintiffsʹ argument that the district court abused its 6
discretion in admitting evidence regarding Brooksʹs Article 10 hearing in 2009. 7
The fact that Brooks was civilly committed following that hearing is probative of 8
whether he would have been committed in 2005. Indeed, the evidence at 9
Brooksʹs Article 10 hearing overlapped substantially with the evidence reviewed 10
by the examining OMH psychiatrists in 2005. The outcome of Brooksʹs Article 10 11
13 For example, as the district court recognized:
THE COURT: The door was clearly opened to virtually
anything in his past that you have a good‐faith basis for
asking him. I am once again surprised that after I spent
many minutes yesterday going through all this, that plaintiff
then chose to elicit broad statements from Mr. Brooks that
opens, it seems to me, opens the door to anything in his past.
The one thing that was not opened is the fact that he is
presently incarcerated and being held on a burglary charge.
Clearly that is just a charge.
J.A. 859 (Tr. 1146:09‐17).

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hearing was thus probative as to what the results of a 2005 hearing that complied 1
with the Constitutionʹs due‐process requirements would likely have been. 2
Moreover, the district court issued a cautionary instruction to ʺclue [the 3
jury] in as to why Article 10 may, in [the juryʹs] discretion, be relevant.ʺ J.A. 869 4
(Tr. 1186:16‐18). The district court explained that Article 10 employs different 5
substantive standards; that information may have been available in 2009 that was 6
not available in 2005; and that the plaintiffs contended that it was ʺtoo 7
speculative to assume that because someone was confined several years later 8
under Article 10, that they would have been confined if given due process under 9
Article 9.ʺ J.A. 868‐69 (Tr. 1185:12‐1186:14). Inasmuch as the jury was thus fully 10
equipped to assess the import of the Article 10 hearing on Brooksʹs claim for 11
damages, the district court did not abuse its discretion in admitting this 12
evidence. 13
CONCLUSION 14
For the foregoing reasons, the judgment of the district court is AFFIRMED. 15

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