Wednesday, July 27, 2016

Habeas petition is granted in rape case

This is a complicated habeas corpus case where a man was found guilty of rape but he challenges the constitutionality of that conviction because the prosecution never turned over the victim's psychological report, which would have allowed the defendant's lawyer to impeach her and to support the defendant's claim that the sexual contact was consensual.

The case is  Fuentes v. Griffin, decided on July 15. Fuentes met the victim at an arcade in New York City. He says they had a consensual one-night stand but that she yelled at him at the subway station after the sexual contact when he said he did not want to see her again. She said he raped her. At the criminal trial, Fuentes's lawyer realized that the victim's psychiatric records were turned over at the last minute. Those records said she had pre-existing depression, suicidal thoughts and frequent crying spells. Defense counsel asked for (but was denied) a mistrial.

He argued that the cross-examination he could have conducted if he had known of the ROC "would have had a major effect on th[e] jury's opinion of [G.C.'s] credibility in this case." Further, G.C.'s mental health history as shown in the ROC would have substantiated Fuentes's account of G.C.'s erratic behavior at the subway station, and thus supported Fuentes's version of the events. Counsel also pointed out that during her trial testimony, G.C. "broke down on the stand and cried many times. And the jury could have very easily been led to believe the reason she was crying was the result of this incident. Now, after looking at this psych. record, we find she was crying well before the events of that evening . . . ."
Before you can bring a federal habeas corpus petition, you have to exhaust all appeals in the state system. For most people, that means going to the Appellate Division, and then asking the State Court of Appeals to take up the case, which it can reject without comment because the State's highest court can pick and chose what cases it wants to hear. But in this case, the State Court of Appeals did hear the case and it upheld the conviction. But the Second Circuit finds that the State Court of Appeals had actually misread part of the victim's psychiatric records in upholding the conviction. In the end, the Second Circuit (Kearse and Straub with Wesley in dissent) says, the State Court of Appeals did not reasonably apply settled constitutional law in upholding the conviction. It's been at least a few years since the Second Circuit has said this about the State's highest court, which is considered among the most prestigious in the country.

The Second Circuit grants the habeas petition in holding that Fuentes had a clearly-established constitutional right to receive psychiatric records like this as Brady material, which the prosecution must turn over to the defense before trial. The Circuit also says that the Confrontation Clause in the U.S. Constitution allows defendants to challenge a witness's credibility by challenging their ulterior motives, i.e., vindictiveness or malice. Psychiatric evidence allows you to challenge the witness's credibility in this regard. Here is the crux of the Second Circuit's reasoning:

The suppressed psychiatric record stated unambiguously that on January 27, 2002, G.C. told the hospital psychiatrist that she had been depressed and suicidal for two years. This information was consistent with the Record of Consultation's notation of "Dysthymic Disorder", a condition whose "essential feature," according to the American Psychiatric Association's Diagnostic & Statistical Manual of Mental Disorders (Fourth Edition) ("DSM-IV") -- which is "an objective authority on the subject of mental disorders," is a "chronically depressed mood that occurs for most of the day more days than not for at least 2 years," with symptoms that may include "low self-esteem." Among "the most commonly encountered symptoms in Dysthymic Disorder may be feelings of inadequacy" and "excessive anger," and the "chronic mood symptoms may contribute to interpersonal problems or be associated with distorted self-perception,"

Thus, while the Court of Appeals majority, not recognizing the actual content of the psychiatric record, viewed its impeachment value as "at best, minimal," the information as to G.C.'s chronic depression and Dysthymic Disorder would have, inter alia, provided a way to cross-examine G.C. as to her mental state, and potentially corroborated Fuentes's account of her behavior as "unstable" and "erratic" when he declined to see her again, to wit, being angry and volubly upset at being rejected. And, importantly, timely disclosure of the ROC would have provided defense counsel with an opportunity to seek an expert opinion with regard to the ROC's indication of other significant symptoms, in order to establish reasonable doubt in the minds of the jurors because of G.C.'s predisposition toward emotional instability and retaliation--an opinion he was able to obtain after he eventually learned of the psychiatric record but not in time to present it to the jury.

Tuesday, July 26, 2016

Flawed PLRA grievance process means Inmate can bring excessive force case

Inmates can no longer just run to court when something bad happens inside the jail. They have to file an internal grievance first. After that grievance is ignored or thrown away, they can then file suit in federal court. This results from a law that Congress passed during the Clinton presidency. The law was intended to reduce the number of inmate lawsuits. But courts are still figuring out how it all works.

The case is Williams v. Priatno, decided on July 12. This guy was jailed at Downstate Correctional Facility. He says the prison guards kicked the hell out of him. Under the grievance procedures in the federal system, you not only grieve bad food or other uncomfortable occurrences but your beatings. Think about that for a minute ("I would like to file a grievance about my beating"). Williams asked a correction officer to file the grievance on his behalf. The problem here was that the jail says the CO never filed that grievance for Williams. The jail's grievance rules were not a model of clarity regarding how to file an internal appeal of your grievances once the jail denies them at the first level. Rather, the Court of Appeals says, "the regulations only contemplate appeals of grievances that were actually filed. ... The regulations give no guidance whatsoever to an inmate whose grievance was never filed." Williams argues that even if the CO did not file the grievance for him, that omission cannot be held against him because the rules are too opaque with respect to his obligation to file an appeal of any grievance denial.

In 2004, the Second Circuit issued a series of rulings that interpreted the 1996 law that addressed inmate grievances. The leading case in this trilogy, Hemphill, said we consider whether administrative remedies inside the jail were available to the inmate. We then consider whether the jail forfeited the affirmative defense of exhaustion by failing to preserve it in litigation or their own actions in the jail made it impossible for the inmate to exhaust internal remedies. The third factor under Hemphill asks whether any special circumstances would excuse the inmate from having filed an internal grievance. But in 2016, the Supreme Court in Ross v. Blake, 136 S. Ct. 1850, essentially rejected the "special circumstances" rule, so that part of Hemphill is overruled.

Still, Williams can win the appeal and proceed with his lawsuit, the Second Circuit says, if the "regulatory scheme providing for the [grievance] appeal is so opaque and so confusing that no reasonable prisoner can use it." The Circuit draws that language from the Ross decision. That exception applies here. The rules at Downstate were not clear on how to appeal or exhaust internal administrative remedies, which normally must be exhausted before you can sue in court. As the regulations "do not describe a mechanism for appealing a grievance that was never filed," and the options offered by the State in defending itself on appeal are too confusing, Williams's case is reinstated and he can litigate his excessive force claim in court.

Monday, July 25, 2016

No pepper emergency in drug stop

A Terry stop happens when the police search your person on the street based on the "reasonable suspicion" that criminal activity is afoot. That's a low standard for the police to satisfy, but if you're arrested following a Terry stop, you will probably ask the judge to rule that the police exceeded their authority and that the fruits of the unlawful search -- usually drugs or a gun -- should be suppressed. That's what this guy did. But the Second Circuit says the stop was legal.

The case is U.S. v. Compton, decided on July 19. Compton was driving near the Canadian board, where the police had set up a checkpoint. Compton slowed down his SUV as he approached the checkpoint and abruptly veered into a the driveway of a vegetable stand. Compton and his brother then got out of the vehicle and each bought a pint of peppers. And by peppers, I mean the kind that grow in the ground. A police officer heard about Compton's maneuverings and peered into the SUV. He saw a blanket in the back that looked like it was concealing something. The police then got out the drug-sniffing dog, which found 145 pounds of marijuana in duffle bags. Was this warrant-less search legal? It was.

In determining whether a Terry stop is legal, we look at the totality of the circumstances. Beware of the totality of the circumstances test. It means the court can emphasize one fact over another or just look at the "big picture" in reaching a conclusion. With tests like this, we know lawfulness or unlawfulness when we see it. Here, the officer's suspicion was legitimate because (1) Compton avoided the checkpoint, (2) the checkpoint was near the border and (3) the brothers attempted to conceal the avoidance in a peculiar way.

While avoiding a checkpoint is usually not enough by itself to authorize a Terry stop (as some people simply don't like interacting with the police), we can still consider that factor in the analysis. Proximity to the border is relevant because "national borders uniquely implicate various criminal activities -- including contraband smuggling and illegal entry," according to the Supreme Court. The concealment attempt was also suspicious. As Judge Walker puts it, we consider "the peculiar circumstances surrounding the precipitous pepper purchase." Not the alliteration. If you think the Court is getting cute here, you are correct. The Court writes:

Because Gottschall had already determined that the SUV had made the abrupt turn into the vegetable stand in order to avoid the checkpoint, Gottschall could reasonably interpret the pepper  purchase to be an attempt to conceal that avoidance. He could reasonably discount the probability of an alternate explanation, such as a sudden pepper emergency (such predicaments occur infrequently) or a simple desire to avoid a delay (taking the extra time to park a car and go shopping is hardly consistent with a motorist who avoids a checkpoint because he or she is in a hurry). And he could reasonably be suspicious of individuals who appeared to be taking steps to actively deceive law enforcement.

Moreover, the improbability of a pepper emergency occurring immediately upon the appearance of a border checkpoint rendered the brothers’ ruse even more suspicious. A person who resorts to an odd and poorly conceived concealment measure to avoid contact with law enforcement authorities is more likely to be desperate to avoid detection of unlawful activity.
No one really has a pepper emergency, do they? Unless you are hosting a barbeque, which these guys were not. Which is why the defendant gets nailed on a drug charge.

Thursday, July 21, 2016

Small-town constitutional retaliation claim is reinstated

Small-town politics once again makes it way to the U.S. Court of Appeals, which decides that a jury may find that a town in Dutchess County retaliated against a police captain for supporting the incumbent Town Supervisor (who lost her re-election campaign) and was then demoted by the Town Board.

The case is Bierce v. Town of Fishkill, a summary order issued on July 13. Bierce supported Pagones, who sought re-election. Pagones lost. LaColla won. Afterwards, plaintiff was demoted. The case was dismissed, but the Court of Appeals (Jacobs, Chin and Droney) brings it back in an unpublished decision that could easily have been a precedential ruling. I say that because this decision is a mini-tutorial on what it takes to win a political retaliation case under the First Amendment.

Plaintiff had the First Amendment right to support Pagones in her re-election campaign. The town did not have the right to retaliate for plaintiff's political activity. The town argued that the town board voted to demote plaintiff, and that he did not prove that a majority of the board took action against him in retaliation for his political activity. There is logic to this argument. But the Court of Appeals previously held in another case that "plaintiff 'may prevail—and, at the very least, should survive summary judgment—even when the plaintiff has not presented evidence that a majority of the individual members of [a] body acted with unconstitutional motives.'” The defendant has the burden of showing a majority did not intend to retaliate against the plaintiff.

Plaintiff can win the case because the board voted to demote him only one month after LaColla took office. That short time-gap permits the inference of retaliation. Also, the board did not follow its usual procedures in eliminating plaintiff's position, more evidence of illicit motive, since violating procedural rules to hurt the plaintiff suggests the defendants were bending the rules for an ulterior motive. What's more, two other Pagones supporters also lost their jobs after the election. There is also some direct evidence. "After finding out that Bierce supported Pagones politically, LaColla warned him that 'police and politics don’t mix.'”

Tuesday, July 19, 2016

A cornucopia of reasons to reinstate a teacher's Title VII claims against an upstate school district

This is a 20 page summary order issued by the Court of Appeals in resolving an upstate school-teacher's employment discrimination claim. Summary orders are normally four to five pages, but this one goes on and on because the district court made various mistakes that require extended discussion. Buried in the otherwise routine analysis is an interesting discovery ruling in which the district court abused its discretion.

The case is Carter v. Syracuse City Sch. Dist., issued on July 11. Here are the rulings in bite-size chunks:

1. Plaintiff did not have to file a notice of claim against the district in order to preserve her state law claims. The Second Circuit cites a recent State Court of Appeals ruling that "a notice of claim need not be filed for a Human Rights Law claim against against a municipality." That is so because HRL claims are not torts claims.

2. Plaintiff has plead a racial and gender discrimination claim against the district under Title VII. The district court got it wrong in holding that she had to plead a prima facie case of discrimination in order to thwart a Rule 12(b)(6) motion. She pleads a claim in alleging her negative performance review was a sham that caused her to be placed on an "assistance plan" for deficient teachers and rendered her ineligible for certain teaching programs that would have paid her cash money. Lest there be any doubt, the Vice Principal allegedly told plaintiff the negative performance review "was due to her race and gender." Did the Vice Principal really say this? Will a jury believe plaintiff's testimony that he did? That's what trials are for. If plaintiff said it happened in her complaint, then the district court has to believe it's true for purposes of ruling on the Rule 12 motion.

3. She also has a retaliation claim. Plaintiff does not have to plead a prima facie case of retaliation, the Second Circuit reminds us. After she filed a discrimination charge with the State Division of Human Rights, plaintiff asked the district to relocate her to another school, which could have been done without difficulty, and requests like this are routinely honored. The district did not relocate her. I am sure the district's lawyers argued that this was not an adverse action because the denial did not affect the terms and conditions of her employment, and teachers do not have the right to demand a transfer. But the Court of Appeals says the relocation denial qualifies as an adverse action because it would have dissuaded a reasonable teacher from complaining about discrimination again, as the relocation would have moved her away from co-workers who were causing her work-related stress. This is actually an interesting holding which might deserve further analysis, as I have not seen this before in a Second Circuit ruling.

4. The district court abused its discretion in rejecting plaintiff's request for additional discovery when she sought leave to depose the Vice Principal after he backed away from his initial willingness to sign an affidavit that plaintiff's counsel had prepared in opposition to the summary judgment motion; he was afraid to sign because he feared retaliation from the district and refused further contact with plaintiff's lawyer. The Veep instead signed an affidavit in support of the district's summary judgment motion. Of course, plaintiff says the affidavit that Vice signed had false information. The district court says plaintiff could have taken this guy's deposition in discovery, but the Court of Appeals says that's not a good reason to deny the request for a late deposition under the circumstances. The Second Circuit goes on to reason as follows:

Although the District Court concluded that the affidavits [in support of the application to reopen discovery] did not contain any explanation that justified Carter’s failure to depose Vice Principal Frazier during discovery, this finding is untenable in light of the detailed allegations contained in the affidavits. The affidavits establish that Carter did not depose Vice Principal Frazier at an earlier date during the discovery period because, up until the submission of Defendants’ reply brief, Carter was under the impression that Vice Principal Frazier was going to serve as a witness in support of her case, not Defendants’, and therefore she previously had no reason to depose her own witness. It therefore follows that she was not afforded a reasonable opportunity to obtain information within the control of Defendants. Moreover, the sworn affidavits also identify the potentially discoverable evidence that would raise a genuine issue of material fact as to Carter’s claims, thereby satisfying the requirements warranting additional limited discovery.
This is a fascinating holding that you never see in the Court of Appeals, which hates to get its fingers dirty in discovery disputes and will normally defer to the district court's judgment on these issues. Not this case.

 5. The case is sent back to the district court with additional instructions on how to give the plaintiff a fair shake on the next summary judgment motion. It notes that negative performance evaluations may in fact constitute adverse employment actions in certain circumstances. The Circuit also notes that there may be evidence of discriminatory motive because the Principal told plaintiff that white teachers, including the Principal himself, were intimidated by her because she is a "tall, Black, well-spoken, educated professional woman" and that this was happening to her because she is a "well-educated Black woman." You do not see blatant allegations like this very often in employment discrimination cases. Other teachers also made racist statements in plaintiff's presence; one said black students were fighting with each other because it was "cultural." I am sure the defendants deny making any such comments, but that is what trials are for, and that is why these cases go to mediation. Comments like this turn the case into a crapshoot. If the jury believes plaintiff, she wins the case.

Monday, July 18, 2016

Court reinstates ADA claim in student suicide case

Student suicide cases are making their way through the courts, as lawyers are finding ways to argue that the schools should have done more to prevent them, usually caused by incessant peer-on-peer bullying. The Court of Appeals has yet to issue a definitive ruling on when the school is responsible for a student suicide, but this case tells us when a student has a disability under the Americans with Disability Act. It was that disability, the family claims, that caused the bullying.

The case is Spring v. Allegheny-Limestone Sch. Dist., a summary order decided on July14. According to the district court,

This action follows the tragic suicide of high school student Gregory Spring on June 17, 2013. As described in the Amended Complaint, Gregory was a special education student who suffered from disabilities including, but not limited to, Tourette’s Syndrome, ADHD, and Callosum Dysgensis. Plaintiffs allege that for an extended period of time during middle school and high school, Gregory “was subjected to numerous acts of fear and intimidation including, but not limited to, teasing, taunting, bullying, name calling, violence, offensive touching, hitting, interference with relationships, and public and private humiliation – conduct motivated in whole or part by his disabilities.” This conduct was “minimized, dismissed and ignored by the school district’s staff and officials, including the named Defendants.”
The constitutional claims were dismissed against the district, but the family also asserted a claim under the ADA. The district court said the student did not have a disability under federal law, but the Court of Appeals (Wesley, Livingston and Lynch) disagrees, noting that the ADA Amendments Act -- enacted in 2008 -- broadens the definition of "disability." Plaintiffs adequately alleged that the student's condition "susbtantially limited him in a major life activity."

We conclude that in holding that the proposed amendments did not allege a qualifying disability through specific facts about Gregory, the District Court clearly misconstrued the amended pleadings and misapplied the law. The proposed second amended complaint explicitly identified the effects of Gregory’s conditions on his major life activities of, inter alia, “speaking,” “learning,” “concentrating,” and “communicating,” identifying “a long‐standing record of suffering with a variety of motor and vocal tics” with a specific list of examples including “outbursts,” “involuntary knee slapping and eye blinking tics,” “repetitive utterance of foul language,” and “repetitive questioning.” It further alleged that the effects intensified “during periods of stress or unfamiliar settings or situations” and that his disabilities "substantially limited his ability to communicate” because “he was unable to recognize emotions communicated by tone of voice and misunderstanding of social cues.”

Taken together, the proposed amendments alleged sufficient facts to make plausible that the impact on Gregory’s learning ability, which also prompted a need for special education services, constituted a substantial limitation. On the facts alleged, therefore, we conclude that these proposed amendments would have sufficed to meet the requirements of a qualifying disability, particularly given the ADA Amendments Act of 2008’s significant relaxation of the standard for substantial limits on major life activities. 

Friday, July 15, 2016

Does Rule 68 apply when defendant takes up the appeal?

If you litigate in federal court, then you are familiar with Rule 68. This rule says that if defendant serves the plaintiff with an Offer of Judgment and the plaintiff prevails at trial but recovers less money than set out in the Offer of Judgment, then plaintiff has to pay the defendant's costs incurred after the Offer was served. Costs include attorneys fees under Rule 68, which means the plaintiff's lawyer does not recover any fees for work that transpired after the Rule 68 offer was served. Rule 68, then, forces plaintiff to think hard about whether to proceed with the litigation or whether to take the money and run. Rule 68 is not always so simple, however.

The case is Luo v. L & S Acupuncture, a case out of the Eastern District of New York. This unpublished attorney's fees ruling was issued on July 8. This FLSA case went to trial, and plaintiff recovered about $4,000. Plaintiff's counsel was John Troy, Esq. FLSA cases often do not yield large damages awards, so the district court had no problem awarding the Troy firm over $60,000 in attorneys fees. The problem was that defendant had previously served a Rule 68 offer on plaintiff in the amount of $18,000. Since plaintiff's damages award and attorneys fees accrued through the time of the Rule 68 offer fell below $18,000, in theory, the attorneys fees should have been cut off from the time the offer was served. Except that, in opposing the attorneys' fees motion in the district court, defendant neglected to tell the court about the Rule 68 offer.

After the district court issued the fees ruling, defendant took up an appeal. I handled the appeal. The Court of Appeals upheld the attorneys' fees ruling. I then moved for attorneys fees for the time I spent handling the appeal. Defendant opposed that motion, arguing that the Rule 68 offer was still in effect and that plaintiff should not recover any attorneys fees for the successful appellate work. Interesting argument for which there is no case law that addresses this issue one way or the other. On one hand, Rule 68 punishes the plaintiff for continuing the litigation even after defendant makes a fair offer to settle. Appeals arguable qualify as continued litigation. But defendant did not present the Rule 68 offer to the district court during the first round of fee litigation. And it was defendant and not plaintiff who took up the appeal, which means defendant prolonged the litigation at that point, not plaintiff.

While no case law addresses the issue of whether a Rule 68 offer prevents the prevailing plaintiff from recovering any fees in fighting off an appeal initiated by the defendant, the Judge Cogan saw this as a simple issue. The court wrote, "the Rule 68 offer, made prior to this Court’s award of attorneys’ fees, has nothing to do with the right to recover attorneys’ fees incurred on appeal. Rather, the Rule 68 offer was the issue (or at least the major issue) on appeal. It was defendants that chose to take that appeal. Obviously, plaintiff had to oppose the appeal, and she won. I reject defendants’ effort to convert the Second Circuit’s affirmance into a pyrrhic victory."