21-1941-pr Ash v. Johnston

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 “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 Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 16th day of September, two thousand twenty-four.

PRESENT: JON O. NEWMAN, JOHN M. WALKER, JR., RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ DAMON ASH,

Plaintiff-Appellant,

v. No. 21-1941-pr

CORRECTIONAL OFFICER NATHAN J. JOHNSTON, Correctional Officer, Clinton Correctional Facility, CORRECTIONAL OFFICER SETH M. BOMBARD, Correctional Officer, Clinton Correctional Facility,

Defendants-Appellees, LIEUTENANT J. E. MILLER, Correctional Lieutenant, Clinton Correctional Facility, NURSE D. MACEY, Correctional Nurse, Clinton Correctional Facility,

Defendants. ------------------------------------------------------------------

FOR APPELLANT: MATTHEW B. BYRNE, Gravel & Shea PC, Burlington, VT

FOR APPELLEES: DOUGLAS WAGNER, Assistant Solicitor General (Barbara D. Underwood, Solicitor General, Andrea Oser, Deputy Solicitor General, on the brief), for Letitia James, Attorney General of the State of New York, New York, NY

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 ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Plaintiff-Appellant Damon Ash appeals from a judgment of the United

States District Court for the Northern District of New York (D’Agostino, J.)

related to claims he brought under

. Ash’s complaint alleges that

two corrections officers used excessive force against him in violation of the

Eighth Amendment of the United States Constitution. That claim was tried

2 before a jury, which found in favor of the officers. On appeal, Ash challenges the

District Court’s jury instructions, as well as its pretrial dismissal of his First

Amendment free-exercise and retaliation claims against the two officers and his

Eighth Amendment claim of medical indifference. He further asserts that the

District Court erroneously failed to recognize his Fifth Amendment claim under

the Double Jeopardy Clause that he was denied adequate medical care as

punishment for his underlying offense and his related “Constitutionally

Inappropriate Adjudication Claim.” Appellant’s Br. 12. Finally, Ash challenges

the District Court’s order denying leave to amend his complaint. We assume the

parties’ familiarity with the underlying facts and the record of prior proceedings,

to which we refer only as necessary to explain our decision to affirm.

I. Eighth Amendment Claims

Shortly before trial on Ash’s excessive-force claim, Ash proposed jury

instructions relating to that claim. The District Court accepted his proposed

instructions and delivered them to the jury along with a clarifying instruction

that Ash also proposed. Dist. Ct. Dkt. No. 116, at 12–13 (“In the context of an

excessive force claim, the key inquiry is whether the defendant applied force in a

3 good faith effort to maintain or restore discipline or whether the defendant acted

maliciously and sadistically for the very purpose of causing harm.”).

On appeal, Ash focuses on that part of the jury instructions requiring that

he “prove the prison guards acted ‘maliciously and sadistically.’” Appellant’s

Br. 23. He now argues that the instructions improperly burdened him with

proving “more than [that] the [prison] guards acted in bad faith.” Appellant’s

Br. 23. This argument fails at the outset because Ash cannot challenge on appeal

a jury instruction he requested and to which he failed to object. See United States

v. Quinones,

, 320–21 (2d Cir. 2007); United States v. Ferguson,

(2d Cir. 1985).

To establish a medical indifference claim, a prisoner must prove

“deliberate indifference to [his] serious medical needs,” which requires a

“sufficiently serious” alleged deprivation of treatment and that the defendant

both “kn[ew] of and disregard[ed] an excessive risk to inmate health or safety.”

Chance v. Armstrong,

(2d Cir. 1998) (quotation marks omitted).

Even if we construe Ash’s complaint liberally to assume that the unnamed

“nurse” referred to in the body of his complaint is Nurse Macey, Ash has not

shown that Nurse Macey acted with deliberate indifference. The minimal

4 allegations asserted in Ash’s complaint do not establish that Nurse Macey knew

of and disregarded a serious medical risk to Ash.

II. Fifth Amendment Claims

Nor are we persuaded that Ash’s allegations of inadequate medical care

support his Fifth Amendment double jeopardy claim. See U.S. Const. amend. V.

Even assuming Ash’s complaint can be read to assert such a claim, it fails

because the Double Jeopardy Clause “protects only against the imposition of

multiple criminal punishments for the same offense, . . . and then only when such

occurs in successive proceedings.” Hudson v. United States,

(1997).

The relevant jeopardy “is not present in proceedings that are not essentially

criminal,” Breed v. Jones,

(1975) (quotation marks omitted), and

“the Double Jeopardy Clause does no more than prevent the sentencing court

from prescribing greater punishment than the legislature intended,” United States

v. Khalil,

(2d Cir. 2000) (quotation marks omitted). For these

reasons, we conclude that the Double Jeopardy Clause does not apply to the facts

alleged in Ash’s complaint.

5 Ash’s “Constitutionally Inappropriate Adjudication” claim, Appellant’s Br.

12, fails for a similar reason. Ash has failed to show that an “essentially

criminal” proceeding was carried out by any of the Defendants-Appellees.

III. First Amendment Claims

The District Court dismissed Ash’s two claims arising under the First

Amendment (infringement of his free exercise rights and retaliation for

exercising his religious rights) because, among other defects, the complaint fails

to identify any underlying First Amendment speech or activity that was

burdened by the alleged conduct. We agree.

To assess a free-exercise claim, a court must determine “(1) whether the

practice asserted is religious in the person’s scheme of beliefs, and whether the

belief is sincerely held; (2) whether the challenged practice of the prison officials

infringes upon the religious belief; and (3) whether the challenged practice of the

prison officials furthers . . . legitimate penological objective[s].” Kravitz v. Purcell,

(2d Cir. 2023) (quotation marks omitted). Ash’s claim fails on

prongs one and two because he does not adequately allege what specific

religious practice was burdened, how it was burdened, or that his religious

beliefs were sincerely held. See Farid v. Smith,

(2d Cir. 1988).

6 For similar reasons, Ash’s First Amendment retaliation claim fails because

the complaint does not allege sufficiently specific facts as to what speech or

conduct was protected and the causal connection between any speech or conduct

and the excessive force used. See Holland v. Goord,

, 225–26 (2d Cir.

2014).

IV. Leave to Amend

Finally, we turn to the District Court’s denial of Ash’s motion seeking

leave to amend his complaint, which we review for abuse of discretion. See

Kassner v. 2nd Ave. Delicatessen Inc.,

(2d Cir. 2007). On appeal,

Ash argues that the District Court improperly denied his motion for leave to

amend because it did not provide any reasons for doing so beyond Ash’s

untimeliness. To be sure, the District Court denied Ash’s motion as untimely

without further explanation. We may affirm, however, on any basis in the

record. See Freidus v. Barclays Bank PLC,

, 138 n.2 (2d Cir. 2013).

Based on our review of the record, we conclude that Ash failed to show “good

cause” for not meeting the deadline fixed by the District Court’s scheduling

order. Fed. R. Civ. P. 16(b)(4); see Kassner, 496 F.3d at 243–44. Ash alluded to his

pending state court case as the reason for his delay, but he does not explain why

7 this would prevent timely filing. Accordingly, we conclude that the District

Court did not abuse its discretion in denying leave to amend.

We have considered Ash’s remaining arguments and conclude that they

are without merit. For the foregoing reasons, the judgment of the District Court

is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

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