Pro se inmate wins excessive force, retaliation appeal

This inmate claims that correction officers smacked him around for no good reason. The district court dismissed the case from the outset, but the Court of Appeals reinstates the claim, ruling that the plaintiff has sufficiently alleged the officer hit him without justification, and that he did so in retaliation for the inmate's free speech.

The case is Fabricio v. Annucci, a summary order issued on November 6. It is not uncommon to see the Court of Appeals reinstate lawsuits like this. The trial courts often dismiss Section 1983 civil rights claims filed by inmates, many of who prosecute their appeals pro se, without a lawyer. This guy wins the appeal on his own. He alleges the following facts:

The excessive-force claim centers on Fabricio’s allegations that Officer Long “smack[ed]” him in the eye after several officers had subjected Fabricio to a search. Fabricio alleged that the officers’ stated reason for singling him out at first — that he was wearing too many layers of clothing — was pretextual, and that the real reason was that he had reported a correction officer’s misconduct at another prison. The officers then searched Fabricio who, believing the reasons for the search to have been pretextual, “start[ed] looking for [the officers’] names,” at which point one of the corrections officers told him to “go and sit down on [a] metal chair.” Fabricio did so, and then got up again, at which point that corrections officer pushed him back into the chair and said, “don’t miss[]pell my name.” Officer Long then “smack[ed]” Fabricio “hard . . . on his right eye.” Fabricio also alleged that, after Officer Long hit him, Officer Long warned Fabricio not to file a grievance or to seek medical attention lest he “go to the box” for an “assault on staff.”

Sounds like a case, no? To survive a motion to dismiss, inmates have to allege that the violence was not done "in a good-faith effort to maintain or restore discipline." While plaintiff did allege that one of the officers told him to sit down, which might suggest that he failed to comply with a directive, "Fabricio also alleged that another officer had already shoved him back in the chair, supporting an inference that no additional force was necessary to restore discipline, even assuming any had been necessary to begin with. Officer Long’s threat about what would happen if Fabricio sought medical attention, meanwhile, further supports a reasonable inference that Officer Long was not acting in good faith — as does Fabricio’s allegation that he was singled out in the first place because he had reported officer misconduct at another prison."

We also got a retaliation claim. Plaintiff's prior grievance against the correction officer. "Fabricio alleged that Officer Long warned him that 'if he [wrote] a grievance about” Officer Long’s alleged use of force, Fabricio would have to 'deal with the consequences.' After Fabricio filed such a grievance, and while Fabricio was waiting to be released from his cell so that he could go to the gym, Officer Long told him that he was 'on hold,' and added that he had 'got the grievance' and made an off-color remark about what he planned to do with it. We have little trouble concluding that Fabricio’s complaint sufficiently alleges protected conduct and, in light of Officer Long’s alleged comments, a causal connection between that conduct and the action alleged to have been retaliatory."

If you want First Amendment protections, join the union

In 2013, the Court of Appeals held that union membership is free speech activity. This means that management cannot retaliate against employees because they belong to a public employee labor union. The question is now whether non-union members who are represented by a union during collective bargaining also have First Amendment rights to associate with the union.

The case is Donohue v. Milan, issued on November 18. The 2013 decision was State Employees Bargaining Agent Coalition v. Rowland, 718 F.3d 126 (2d Cir. 2013). In this case, the plaintiffs were let go in a reduction-in-force in around 2012. They worked for the New York State Thruway Authority, which had to implement cost-saving measures around the time it was financing a replacement for the Gov. Malcolm Wilson Bridge, also known as the Tappan Zee Bridge. Some of the layoffs were non-union members, also called agency fee payers (AFP's). Can the AFP's sue under the First Amendment in a retaliation case? The Court of Appeals says they cannot.

The issue on this appeal is: “Under Rowland, do employees enjoy First Amendment protections merely because they are represented by a union during collective bargaining such that an employment decision based on that representation is subject to strict scrutiny?” Why is this? Because, the Second Circuit says, "the First Amendment protects the practice of persons sharing common views banding together to achieve a common end.” But that case "did not say that being represented by a labor union during collective bargaining by itself conferred First Amendment protection and the heightened scrutiny that comes with it." The Court adds for good measure, "we have never held that anyone who is represented during collective bargaining is for that reason alone entitled to First Amendment protection from government interference, and we decline to do so now."

Simply put, the AFP's did not "engage[] with others in a collective effort on behalf of shared goals." What this means is that "AFPs who affirmatively disassociated with a union by objecting to paying for a union’s political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union." On the other hand, the union member plaintiffs can proceed with their case. They did affirmatively join the organization and therefore enjoy the benefits of the Rowland decision.

Prison class-action consent decree is revived

In 1982, a consent degree was entered that required Green Haven Correctional Facility to provide inmates with adequate health care. An independent monitor then audited the health care at Green Haven to ensure that it satisfied constitutional standards. The consent decree was lifted in in 2015, after class counsel advised the district court that the state had represented that it would meet with plaintiff's expert to enable him to present his expert findings with respect to medical care. One inmate has now challenged the termination of the consent decree. The Court of Appeals agrees with him, and the consent decree is operative again.

The case is Irvin v. Harris, issued on November 19. Consent decrees became a thing in the 1970s and 1980s when plaintiffs' lawyers were able to prove that jails and prisons were not in compliance with constitutional standards. The decree meant that the institutions had to submit to monitoring from outside experts and lawyers. Under the Prison Litigation Reform Act of 1995, Congress made it easier for institutions to have the decrees lifted. As you can see from above, the Green Haven decree was lifted in 2015. But there were problems in lifting the decree. It appears the plaintiffs' class counsel did not adequately consult with Green Haven inmates about termination of the decree. One of those inmates is Irvin, who brought asked Southern District of New York to reopen the decree. The SDNY denied that motion, but the Court of Appeals (Pooler, Lohier and Carney) agrees with Irvin.

Irvin's arguments are as follows:

Irvin argued that the termination should be rescinded because, among other arguments: (1) if class counsel had just “taken the time to come to the prison and seen for themselves, by interviewing some of the class members themselves, they would have gotten completely different opinions,” (2) class counsel “lacked enough information and the authority to withdraw the opposition to the termination,” and (3) class counsel withdrew their objections to termination “without consulting with any of the individual members of the class, especially, those inmates housed in the Unit for the Physically Disable[d].”

The Court first rules that Irvin has standing to bring this motion. He satisfies the high burden associated with standing to reopen the case. The Second Circuit states that "it is undisputed that no named representatives were present to protect the interests of the class during termination proceedings, because none of them were still incarcerated at Green Haven and no new representatives had been substituted in. This exemplifies 'extraordinary circumstances in which a non‐party had interests on which the outcome of the proceedings had significant consequences . . . yet those interests had not been adequately represented during litigation, because of the peculiar structure of [the] case.'” And, Irvin is still connected with the suit and is therefore bound by the judgment terminating the consent decree. This case is Irvin's business, and that means he has standing.

On the merits, the Court notes that “the Due Process Clause ,. . . requires that the named plaintiff at all times adequately represent the interests of the absent class members.” The decree is so old that none of the named class representatives were still incarcerated at Green Haven when the termination proceedings were underway. This means none of the named class representatives retained interests in common with the class. "In short, named representatives of a Green Haven inmate class certified 35 years before the relevant proceedings do not adequately represent the class when they are no longer Green Haven inmates and have not continued to pursue the litigation." The Court concludes that, based on the lack of notice about the terminating proceedings, the class of current inmates were not adequately represented when the consent decree terminated.

How to plead discrimination under Title VII

A few years ago, the Second Circuit issued a ruling that had important consequences for pleading Title VII violations in federal court. The court seemed to make it more difficult to dismiss these cases for failure to state a claim, which in turn would make it easier for plaintiffs to proceed with discovery. This case demonstrates how it all works.

The case is Khanna v. MUFG Union Bank, a summary order issued on November 19. Note that this is a summary order that reverses the Rule 12(b)(6) dismissal. Normally, a Second Circuit ruling that reverses the district court is a big deal -- trial court judges in the federal system are not dummies, after all -- but I've noticed the Court of Appeals often reverses Rule 12 dismissals through short, summary orders that do not detail the facts or the reasoning. What the Court of Appeals is telling us is that some of these reversals are not that complicated. The message to the district courts is that these cases are not to be dismissed lightly. If you really want to get rid of the case, wait until the defendant moves for summary judgment.

In the world of Rule 12 dismissals, things got easier for plaintiffs in 2015, when the Court of Appeals issued Vega v. Hempstead Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), which is a must-read for any Title VII lawyer. In that case, the court said that "“Under Iqbal and Twombly, . . . in an employment discrimination case, a plaintiff must plausibly allege that (1) the employer took adverse action against [her] and (2) [her] race, color, religion, sex, or national origin was a motivating factor in the employment decision.” Iqbal and Twombly are the Supreme Court rulings from 2007 and 2009 that said the plaintiff must plead a plausible claim to avoid dismissal under Rule 12. While most plaintiffs' lawyers dislike Iqbal and Twombly (which made it easier to dismiss cases from the outset), the Vega standard is not burdensome, and it revives Khanna's case. The district court said plaintiff had no case for this reason: "“While it is true that many industries are dominated by white men, being out-numbered or the lone minority in an office setting is not enough, without more, to give rise to a gender or race-based discrimination claim.” But the Second Circuit (Sack, Hall and Bianco) sees it differently:

The District Court’s conclusion overlooks Khanna’s claims that she was treated less favorably than her white male coworkers. Khanna alleged that she was provided fewer resources, given fewer responsibilities, and held to a higher standard than her white male coworkers. Khanna also alleged that Nolen spoke to her in a patronizing manner and was pleasant and personable to her white male colleagues. For example, in a meeting about Khanna’s work performance, Nolen reminded Khanna in a condescending tone that she should say “please” and “thank you” at all times. Khanna further alleges that she was replaced by a white male the day after her termination.

In sum, the facts alleged in Khanna’s Second Amended Complaint show the sort of “mosaic” of intentional discrimination based on “bits and pieces” of evidence that we expect to see in a discrimination claim because “clever men may easily conceal their motivations.”

I have found that evidence like this is hard to prove: that the employer's office manner was more hostile to black or female employees than white or male employees. It's just tough to quantify this kind of evidence. But that kind of treatment does violate Title VII. Plaintiff will now have to prove it in discovery.

Arbitrator had authority to make class action determination

This case involves people who worked for Sterling Jewelers who claim the company discriminated against them the basis of gender by paying them less money than male workers. The problem for the employees is that they signed an arbitration agreement when they commenced employment with Sterling. That arbitration agreement has been the subject of extensive litigation over the years, and this is the fourth time this case has reached the Court of Appeals, which issued its first ruling in this dispute in 2011. The litigation is still raging, as demonstrated by this opinion.

The case is Jock v. Sterling Jewelers, Inc., issued on November 18. The arbitration clauses are called RESOLVE agreements. Employers like arbitration because they are less expensive to litigate than full-blown lawsuits, as they proceed more quickly than federal or state court cases, and the disputes are resolved by an arbitrator, not some sympathetic jury who might throw the book at the employer and then issue a huge damages award on the theory that management has deep pockets.

This time around, the dispute concerns what to do about the arbitrator's determination that the RESOLVE agreement prohibits class arbitration. That's another reason management likes arbitration agreements. They usually prohibit class litigation and instead require the disgruntled employee to litigate her case individually, which is more burdensome for the employee who does not have strength in numbers. In this appeal, management says the arbitrator improperly interpreted the RESOLVE agreement to allow for a class action. From that argument, management asserts that employees who did affirmatively opt in to the arbitration proceeding are not part of the class.

So the appeal boils down to whether the arbitrator had any authority to find that the RESOLVE agreement authorizes class actions. The plaintiffs argue that since all Sterling employees signed that agreement, they agreed that, if any of them initiated a class proceeding, the arbitrator in that particular proceeding would be empowered to decide class arbitrability and, if she deemed it appropriate, to certify a class encompassing other employees' claims.

The Court of Appeals (Hall, Carney and Koeltl [D.J.]) agrees with the employees. A general rule in arbitration cases is that courts do not like to second-guess arbitrator judgments and rulings. The whole point of arbitration is to keep the case out of court. If courts second-guess arbitration rulings, that defeats the purpose of arbitration, which is to streamline disputes. While the district court in this case rejected the arbitrator's judgment on the class action issue, the Court of Appeals revives it. The reasoning is in two parts:

First, "Although the absent class members have not affirmatively opted in to this arbitration proceeding, by signing the RESOLVE Agreement, they consented to the arbitrator’s authority to decide the threshold question of whether the agreement permits class arbitration."

Second, "Further supporting the conclusion that absent class members authorized the arbitrator to decide whether the arbitration may proceed on a class basis, the RESOLVE Agreement provides that '[q]uestions of arbitrability' and 'procedural questions' 'shall be decided by the arbitrator.'” The Supreme Court has assumed without deciding that "the availability of classwide arbitration is a 'question of arbitrability." 

You can't sue the judge

Every plaintiff's lawyer from time to time fields a potential case intake that seeks to sue the judge. We tell the potential clients that you can't sue the judge. They say that you can because the judge did something outside his jurisdiction. Then you politely tell this individual that you can't take the case. It's not often that this issue reaches the Court of Appeals, but it did in this case.

The case is Deem v. DiMella-Deem, issued on October 30. This case arose from a divorce proceeding. The plaintiff is a lawyer, and his wife is the defendant, along with a family court judge and their marriage counselor. The family court entered an order temporarily preventing Deem from having contact with his children. The lawsuit claims the defendants conspired to violate his intimate association with his children. The lawsuit was dismissed, and the Court of Appeals affirms that dismissal.

Any judge who acts in her judicial capacity cannot be sued over her decisions. That's the rule in Mireles v. Waco, 502 U.S. 9 (1991). When Deem filed this lawsuit against the family court judge, the judge recused herself, adjourned an upcoming hearing to a date two months out, and transferred the case to a different judge. The family court judge also extended the temporary order of protection until the next court date. At that point, Deem amended the complaint in alleging that the TRO extension was outside the family court's judicial capacity.

I guess the argument was that after the family court judge recused herself, she acted outside her judicial authority in extending the TRO. That's a creative argument, but the Court of Appeals (Sullivan, Winter and Pooler) is not buying it. "even assuming that Judge Gordon-Oliver erred in extending the temporary protection order against Deem shortly after recusing herself, any such error falls far short of an act 'taken in complete absence of all jurisdiction.'" We got a Fifth Circuit case that applied judicial immunity for a state court judge who set an execution date after recusing himself. That policy now applies in the Second Circuit.

Second Circuit: Prez has to produce his tax returns

The Second Circuit has ruled that the President produce his tax returns to the Manhattan District Attorney, who is investigating whether various individuals connected to the President committed criminal acts. In ruling this way, the Court of Appeals holds that the President cannot assert any immunity from disclosing these tax records.

The case is Trump v. Vance, issued on November 4. While the DA's office served the subpoena on Trump's accountants, Trump brings the lawsuit. This stems from Trump's extramarital sexual relationships with a Playboy bunny and a pornographic movie actress, and what the Court of Appeals calls "hush money" payments to these women in order to keep these events out of the public eye in advance of the 2016 presidential election.

The Court (Katzmann, Chin and Droney) starts by addressing a dry procedural issue, Younger abstention, a doctrine created by the Supreme Court in the 1970's as a means to prevent the federal courts from interfering with ongoing state court proceedings. Under this rule, federal courts have to abstain from federal lawsuits where a related, ongoing proceeding is unfolding in state court. But the Second Circuit holds for the first time that Younger abstention does not apply when the federal government is trying to invoke the jurisdiction of the federal courts. The Court holds that when the President invokes federal jurisdiction "to vindicate the superior federal interests embodied" in the Constitution. Bottom line is that while there is a grand jury proceeding in state court that is dealing with these possible criminal acts, the federal court has authority to take up the issues raised in this case. So Trump wins that battle.

But he loses the war. Trump asserts presidential immunity in trying to keep his tax returns private. The President invokes "what he described at oral argument as 'temporary absolute presidential immunity,''' which would mean that "he is absolutely immune from all states of state criminal process while in office, including pre-indictment investigation," and that the tax return subpoena "cannot be enforced in furtherance of any investigation into his activities." No one has ever heard of "temporary absolute presidential immunity," and the Court of Appeals tastefully decides a narrow issue, concluding only that "presidential immunity does not bar the enforcement of a state grand jury subpoena directing a third party to produce non-privileged material, even when the subject matter under investigation pertains to the President."

There is very little case law that guides this issue, but the Second Circuit relies on United States v. Nixon, decided in 1974, the year President Nixon resigned the presidency to avoid impeachment after Oval Office tape recordings captured Milhous plotting to interfere with a federal investigation into the Watergate break-in, until now the most exciting presidential scandal we ever had. As the Second Circuit sees it, if the Supreme Court in the Nixon case said that Nixon had to turn over the tapes relating to his own conversation with aides and advisors for use in a criminal trial against high-level presidential advisors, then there is no persuasive reason for Trump to object to a grand jury subpoena served on a third-party (the accountants) relating to an investigation that has nothing to do with Trump's presidential duties but instead involves a private rendezvous that predated his presidency.

This is the case, by the way, where Trump's lawyer told the Court of Appeals that, so long as he is President, Trump could not be investigated even if he shot someone on Fifth Avenue. The Court of Appeals does not make reference to that argument in its ruling, but folks, if you are in the Court of Appeals, don't make arguments like this. Hypothetical questions may seem pointless when you're at the podium, but they do give the Court a flavor about the consequences of your legal position. Arguments like this suggest that your client is above the law. What this case confirms is that no one is above the law, not even the President.  

Case of five black Ulster County corrections officers to move ahead

November 2, 2019

KINGSTON – The US Court of Appeals on Friday reinstated a racial discrimination lawsuit filed by five Ulster County corrections officers who claim the county jail was rife with racist comments and abuse from coworkers and supervisors.

The appellate court ruled that a jury must determine if the officers endured a hostile work environment and whether the county is legally responsible for the work environment.

The plaintiffs are Norman James, Tyrone Brodhead, Alphonso Lacey, Pamela Lancaster and Timothy Ross. The racist comments took place in 2007-2008 and 2014-2015, when Paul Van Blarcum was sheriff, prior to the 2016 election of current Sheriff Juan Figueroa.

The Second Circuit Court of Appeals stated, “The record is replete with evidence of racially derogatory language from coworkers and supervisors. There is little doubt that many, if not all, of the comments made – such as the naming of a police K-9 ‘Mandingo Hunter,’ Wenzel’s joke about black men jogging, and Officer Brook’s joke that black officers or ‘niggers’ could not become sergeants — are egregious. Some of these comments, such as the references to Lancaster as ‘Buckwheat,’ were made by a sergeant.” Other evidence included a “colored girl” comment by Sgt. Polacco and use of the words “nigger” and “jigaboo.”

The court observed that “In total, there were at least 12 instances of racial slurs during the 2014-2015 and 2007-2008 period, though there is evidence that some of these comments had also been made previously or were made ‘constantly’ and ‘all the time.’”

The jury may find the county liable for the work environment, the court ruled, because “there is no evidence that after [plaintiffs] reported a number of incidents . . . anyone spoke with the officers who made these comments.” In addition, “while in a limited number of instances [plaintiffs] did not report slurs, County Personnel Director Sheree Cross did learn of some of these incidents. There is no evidence she investigated, and awareness followed by a failure to act can result in a finding of liability.”

The five plaintiffs are represented by Nathaniel Charny, of Charny & Wheeler in Rhinebeck, and Stephen Bergstein, of Bergstein & Ullrich, LLP, in New Paltz.

In a joint statement Charny and Bergstein said, “This decision reminds us that racism has no place in a public facility. The law prohibits racial hostility in the workplace. The racial harassment at the Ulster County Jail was extensive. We look forward to presenting our evidence to a federal jury on behalf of our clients, who have suffered this racism for years.”

U.S. Courthouse security officers have valid due process claims

The plaintiffs in this employment case were security officers who worked at federal courthouses in upstate New York. After they were terminated from their positions, they sued under the due process clause. The Court of Appeals finds they both have a case.

The case is Atturbury v. United States Marshals Service, issued on October 25. One plaintiff worked at the courthouse in Rochester. The other worked at the courthouse in Poughkeepsie, which mostly handles bankruptcy cases. They were both actually employed by a private security company, Akal, which the Marshals Service used for security services at federal courthouses. So you learn something new every day. I thought the security officers worked directly for the U.S. government. They do not. They worked for private firms that contract with the government.

That employment relationship raises questions about whether plaintiffs can challenge their terminations under the due process clause, which only regulates government action, not private action. A Wal-Mart employee has no due process rights, only certain government employees. In an earlier appeal in this case, the Second Circuit stated that "an employee of a government contractor may under certain circumstances have a constitutionally protected property interest in continued employment." That case was Atturbury v. U.S. Marshals Service, 805 F.3d. 398 (2d Cir. 2015). These cases return to the Second Circuit, which now holds that language in the collective bargaining agreement, which says that employees cannot be terminated without "just cause," gives the plaintiffs a property interest in their continued employment, triggering due process protections.

The question now becomes whether the plaintiffs can actually win their due process claims on the merits. The Court of Appeals (Newman, Cabranes and Lynch) says they can. The procedures the Marshals Service used in firing these guys "have thus far not comported with the requirements of due process," the Court of Appeals says. While the plaintiffs were informed of their alleged misconduct that gave rise to Akal's investigations, the Marshal's Service did not explain the reasons for removing them from the Court Security Officer program. That's not due process. And, since there were disputed facts with respect to plaintiffs' cases, they was entitled to "some form of hearing" on those issues. The Marshal's Service must consider their cases anew.