Thursday, February 21, 2019

Inmate lawsuit is good enough for Rule 8 pleading requirements

One of the conservative Supreme Court justices said years ago that the problem with pro se inmate lawsuits is that the inmates sometimes become litigation machines who file lawsuit after lawsuit because they have nothing better to do. That may be, but sometimes these cases have merit. At a minimum, sometimes these cases are sufficiently pled so the inmates can proceed with their cases. In this case, the Second Circuit says the inmate's complaint is good enough for discovery.

The case is Harnage v. Lightner, issued on February 15. Plaintiff is an inmate in state prison in Connecticut. He wants to sue over the deliberate indifference to his serious medical needs. The district court said the complaint was not sufficiently detailed and did not satisfy the rule that lawsuits must place the defendants on notice of the claims, but the Court of Appeals (Calabrese, Cabranes and Chin) says the plaintiff actually states a claim.

Under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain "a short and plain statement of the claim showing the pleader is entitled to relief." Under Second Circuit law, the plaintiff must at a minimum "disclose sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery."

While the complaint in this case does not provide definite or specific dates on which plaintiff's requests for medical treatment were made, or any dates when anyone at the jail ignored his requests, the amended complaint "substantially complies" with Rule 8 because it "identifies discrete defendants and the actions taken by defendants that purportedly violated Harnage's Eighth Amendment rights." In particular, plaintiff alleges that he sought treatment from named staff members and that he did not receive effective treatment for his medical condition, i.e., providing the right prescriptions he had been promised. The failure to provide dates is not fatal under Rule 8 where, as here, the plaintiff does not have access to his medical records. So, while the complaint is not great, "it is not the incomprehensible 'labyrinthian prolixity of unrelated and vituperative charges' that Rule 8 was intended to curb."

Tuesday, February 19, 2019

2d Circuit grants habeas petition in murder case

Convicted felons are allowed to file habeas corpus petitions, which claim their state-court convictions were unconstitutional. But these petitions are hard to win, as the case has already been through the state court appellate process, and federal judges are required by law to give state court judges some leeway in interpreting the Constitution. So it's always news when the Second Circuit rules that a conviction was in fact unconstitutional, which is what happened here in this homicide case.

The case is Orlando v. Nassau County District Attorney's office, issued on February 11. The district court rejected the habeas petition, but the Court of Appeals holds that trial errors in state court denied Orlando's clearly-established constitutional right under the Sixth Amendment's confrontation clause.

The jury said Orlando was guilty over his role in the murder of a man, Calabrese, when Orlando and another witness Jeannot, went pay Orlando his huge gambling winnings. Jeannot told the police that Orlando had paid him to kill Calabrese. At Orlando's trial, the police testified that Jeannot himself was the killer, but that Orlando had paid him. Jeannot did not testify at the trial, however, so when the police testified about this "admission," the trial court gave the jury a limiting instruction, telling them that the testimony was only relevant in understanding why Orlando then gave a different account of what happened on the day of the murder.

The Second Circuit (Droney and Jacobs, with D.J. Shea in dissent) says the trial court clearly violated the confrontation clause and that the limiting instruction was not enough to ensure Orlando got a fair trial. After all, this hearsay account pinned the murder on Orlando. Hey, you can't throw a skunk in the jury box and ask the jury not to smell it. The Supreme Court has already stated that "when a non-testifying witness's confession 'expressly' implicates the defendant, 'the risk that the jury will not, or cannot, follow instructions to limit its consideration of the evidence for a proper purpose is so great, and the consequences of failure to vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' When a jury hears such express incriminations, even if given a 'clear' limiting instruction, 'the effect is the same as if there had been no instruction at all.'"

Monday, February 18, 2019

Circuit declines en banc review in no-fly religion case

The Second Circuit almost never hears cases en banc, in which all the judges on the court and not just a three-judge panel convene to decide a case of exceptional importance. But when the court declines to hear a case en banc, the judges sometimes issue decisions of their own either defending the decision not to rehear the case or complaining that the initial three-judge ruling was wrong and the court must sit en banc to correct it. This time around, we have some en banc smackdowns on the issue of when you can sue the federal government over the religiously-motivated placement on the "no fly list"

The case is Tanvir v. Tanzin, issued on February 14. The initial panel said the plaintiffs could sue the government under the Religious Freedom Restoration Act (RFRA), which provides damages for government-sponsored religious discrimination. The court said the plaintiffs could sue the government which placed them on the no-fly list because they would not violate their Muslim principles in refusing to serve as FBI informants to spy on their fellow Muslims. This case has Supreme Court written all over it, as it challenges a federal program and the Court of Appeals weighed in on an issue involving national security and no-fly lists. These en banc opinions probably enhance the certiorari value.

The judges who did not want en banc review and defend the three-judge ruling (Pooler and Katzmann) write that the pro-en banc judges are wrongly characterizing the initial panel ruling as a Bivens case. Under the Bivens doctrine, you can sue the federal government for constitutional violations only in rare instances. But, these judges say, this is not a Bivens case. It's a RFRA case. And since RFRA contains an express right of action with an express provision for "appropriate relief," the initial three-judge panel faithfully applied that statute in holding the plaintiffs could sue the federal government for damages over the religiously-motivated no-fly determination.

Writing for the pro-en banc judges, Judge Jacobs (joined by Judges Cabranes and Sullivan) writes that a comparable religious discrimination statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA), which applies to the states, does not provide for a private right action against the government for money damages, as per Washington v. Gonyea, 731 F.3d 143 (2d Cir. 2013). The three-judge holding in Tanvir undermines the Washington holding, Judge Jacobs says, and the three-judge panel essentially created a new Bivens cause of action, which the Supreme Court has forbidden. The end result, Judge Jacobs says, is that government officials will be gun-shy in discharging their duties out of fear of litigation, and they cannot always rely on qualified immunity, such that "the safest course for a government employee in doubt would be to avoid doing one's job, which is not a choice in need of encouragement." Of course, that might be the case if the damages come out of the government employee's pocket, but the government usually pays out the damages award, or else -- let's face it -- no one would work for the government. Jacobs punctuates his opinion with a final slap: "the panel opinion is quite wrong and actually dangerous."

Friday, February 15, 2019

Redacted court ruling vacates guilty plea based on ineffective assistance of counsel

The Court of Appeals has ruled that a criminal defendant was denied the effective assistance of counsel who failed to tell him about the immigration consequences of his guilty plea. What makes the case interesting is that (1) portions of the case are redacted and (2) the federal government flip-flopped on whether to support the defendant's arguments or not.

The case is Doe v. United States, issued on February 14. The facts are not that unusual. Doe pleaded guilty to a crime but his lawyer, who was not well-versed in immigration law, did not tell him he faced mandatory deportation if he pleaded guilty. The case reaches the Second Circuit because the district court rejected the ineffective assistance argument. The government initially opposed Doe's application for coram nobis relief. Then it changed its mind and asked the district court to rule in Doe's favor. But then, on appeal, the government came out against Doe's position. This troubles the Court of Appeals (Katzmann, Kearse and Chin). The unspoken reality is this flip-flop was probably a Trump administration maneuver. But the Court of Appeals does quote from former Attorney General Robert Kennedy, who said the Justice Department is supposed to seek justice and not just convictions. In the end, based on how the Court views the record and Doe's desire to clear his name and fight the charges, had Doe known about the immigration consequences of his plea, he might not have taken the plea. 

Portions of the Second Circuit ruling are blacked out, so we don't know (1) the identity of lawyers representing Doe or even the federal government; (2) which district court this case originated in; (3) what crime Doe pleaded guilty to; (4) the dates certain things in the case happened


Thursday, February 14, 2019

No injunction for inmate who remains in administrative segregation

This is a tough case for the Second Circuit, asked to overrule prison officials who plan to keep an inmate confined in "administrative segregation" for the foreseeable future even though he has not committed a violent incident in jail in more than 20 years. The Court of Appeals rules against the inmate.

The case is H'Shaka v. O'Gorman, a summary order issued on February 13.While the plaintiff has not committed a violent infraction in prison in more than 20 years, he did kill someone for no apparent reason before he turned 18, he attacked a correction officer with a razor blade, severely slashing his face, and committed four other assaults between 1996 and 1999. He remains in administrative segregation under a regulation that permits that if officials think his "presence in general population would pose a threat to the safety and security of the facility." That means plaintiff is in his cell 23 hours a day without access to prison programs or worship, and his one-hour-a-day recreation is spent in a cage.

Plaintiff sought an injunction in the district court, claiming the continued confinement violates the Constitution. The district court denied the injunction and the Second Circuit (Katzmann, Hall and Lynch) says plaintiff cannot satisfy his heavy burden in showing the trial court clearly erred. The leading case in this area is Proctor v. LeClaire, 846 F.3d 597 (2d Cir. 2017), which requires prison officials to meaningful review his segregated status under the Due Process Clause. This involves a balancing test, with prison security on one side of the equation. The decisionmakers submitted declarations stating they are open to freeing up plaintiff inside the prison at some point in the future, but they were never cross-examined, "so we are in a poor position to judge their credibility at this stage, let alone to second-guess the district court's assessment," the court says. In any event, it does look like the jail considered plaintiff's recent behavior.

While the Second Circuit notes "the well-documented and devastating psychological and physical effects that prolonged isolation can have," the record does not speak to the specific harms that plaintiff will face if he remains in "ad seg," as they say in the prison world. Overall, maybe the record will shape up differently in discovery, the Court of Appeals says, but for now, plaintiff is not entitled to a preliminary injunction.


Thursday, February 7, 2019

Wrongful discharge to refusing to drive too-heavy truck on interstate highway

This case acquaints us with a wrongful discharge claim that most of us are not familiar with. Under the Surface Transportation Assistance Act, a trucking company cannot fire a truck driver for refusing to drive a truck on an interstate highway that exceeds the federal weight limit. That's what happened to the plaintiff in this case, and a jury in New Haven awarded him compensatory and punitive damages. That verdict is upheld on appeal.

The case is Kennedy v. Supreme Forest Products, a summary order issued on February 6. Plaintiff was directed to drive a truck that exceeded 80,000 pounds. The truck was carrying a load of mulch. This was in April 2014; springtime is a good time to deliver mulch. But this was too much mulch, so plaintiff objected, and was fired as a result. The jury awarded him nearly $12,000 in compensatory damages and $425,000 in punitive damages, which the trial court reduced to $250,000, the statutory cap. The company challenges liability and the size of the punitive damages award.

Management says the verdict was rooted in speculation because plaintiff never testified that he would have operated the truck on an interstate highway. But there was no speculation, the Court of Appeals (Cabranes, Calabresi and Wesley) says, because plaintiff testified that he understood the federal weight limitation applied only to the "federal highway system" and he did not want to break "the overweight law." Also, "common sense and geography" supports the verdict, says the Second Circuit. Two of the judges on the panel are from Connecticut, so this was the wrong panel to suggest the jury got it wrong on this issue. Testimony demonstrated the plaintiff refused to transport two loads, originating in Southington, Connecticut and destined for Bridgeport and Hartford. The most direct route for these trips involves the interstate highway system, and "a local jury (as this one was) would not even have needed a map" to know this. I guess if you live in the area, everyone knows this. As Judge Calabresi said at oral argument, "Connecticut only has so many highways" and it is unlikely plaintiff would have driven on "dirt roads."

What about the punitive damages? The $250,000 is the cap under federal law for these claims, and the jury was able to find that defendant was motivated by greed and repeat offenses. As for liability for punitive damages, the evidence shows defendant tried to cover up what happened, telling HR that plaintiff had quit his job (and was not fired). And, the employee handbook discusses the applicable regulations, demonstrating that it knew the law, such that it "discriminated in the face of a perceived risk."

What this case tells us is that it is quite difficult to challenge a jury verdict on appeal, and that arguments that the verdict was rooted in speculation are equally difficult. Here, we inferred that defendant wanted plaintiff to drive his truck on the interstate highway, even though, I guess, no one directly testified to that fact. But we can draw inferences so long as they are not unreasonable.

Wednesday, February 6, 2019

Intern at cosmetology school not entitled to salary under the FLSA

From time to time, the Second Circuit puts further gloss on the legal doctrine that says some entities do not have to pay their interns any salary. This case falls under that category. The Second Circuit says a student at a for-profit cosmetology school who had to perform barbering and other cosmetology services to the public at discounted prices.

The case is Velarde v. GW GJ, Inc., decided on February 5. The seminal case in this area is Glatt v. Searchlight Pictures, 811 F.3d 528 (2d Cir. 2015), which says the intern is not entitled to any compensation under the Fair Labor Standards Act if the intern is the "primary beneficiary" of the relationship. If the intern's employer is the "primary beneficiary" of the relationship, then the entity is an employer under the FLSA and the intern has to receive compensation.

Velarde is the lead plaintiff in a potential class action. After finishing eight weeks in the classroom, plaintiff worked at the salon run by the school, performing cosmetology services for the public. He also had to perform janitorial and clerical work. Under state law, to offer cosmetology services in New York, you have to complete 1,000 hours of coursework in various subject areas, like hair styling and presumably shampoo, like the beauty school dropout in Grease.

Plaintiff said the beauty school was the primary beneficiary of the relationship because it derived revenue from the work he performed for paying customers. He says that any training and skills he received from providing those services are "besides the point." The Second Circuit (Cabranes, Carney and Caproni [D.J.]) disagrees. The Court first holds that the "primary beneficiary" test applies in cases involving vocational schools or vocation-related programs. It then holds that plaintiff was the primary beneficiary of this relationship because he received significant benefits from his work at the Salon, as he was required to complete 1,000 hours of coursework, and he did so under the supervision of the school's instructors. And the school actually had plaintiff work exactly 1,000 hours, consistent with state licensing requirements. While plaintiff says he also performed clerical and janitorial duties, the Second Circuit has already held that relatively menial or repetitive tasks may legitimately comprise part of the intern relationship for which the intern receives no pay. And, while plaintiff points out the Salon earned money from his cosmetology work, "the Academy has no obligation not to turn a reasonable profit on its operations" and "this is not a case in which a business uses the facade of a vocational school to deceive students into working unexpectedly long hours without compensation, replacing the labor of its paid employees, or working hours well beyond long-standing state requirements."