Court of Appeals revives inmate's due process claim

This case has been kicking around forever. The plaintiff-inmate claims that prison officials retaliated against him for speaking out against the prison grievance system. The retaliation took the form of contraband planted in his cell. He also has a due process claim that relates to the retaliation claim. After the district court dismissed the case prior to trial, the Court of Appeals reinstated it, and the plaintiff lost the retaliation claim at trial. The case returns to the Second Circuit, which affirms the jury verdict but remands the case to the district court again, this time in finding the plaintiff has a due process claim that the district court had overlooked.

The case is Kotler v. Jubert, issued on January 19. In this appeal, we have some procedural issues that would mostly be of interest to federal practitioners, but they should also interest anyone who marvels at how slowly the system of justice mete out justice. For the practitioners, though, this case clarifies (1) what the party must do when an opposing party dies during litigation, and (2) when a party has abandoned a claim on appeal such that the district court may ignore that claim on remand. Our plaintiff here wins on the second issue but loses on the first.

Issue 1: when the Jail Superintendent died mid-litigation, plaintiff did not move the district court to name the estate's executor as the defendant. Under the rules, when a party dies, the decedent's attorney lets the other side know about it, and the latter party has 90 days to make that motion. If that motion is not made within 90 days, the case against that "defendant" is dismissed. Plaintiff says that deadline does not really count because the Superintendent's attorney did not let him know who the estate's executor was. Plus plaintiff notes that inmates are sometimes given a break in complying with the procedural rules. Not this case. The Court of Appeals (Pooler, Lohier, and Nardini) says this rule applies across-the-board, even for inmates, and that there is no requirement that the Superintendent's attorney identify the executor. If plaintiff needed more time to make that motion in order to identify the executor, he could have done so, but he did not, the Court observes. While a case from 1969 out of the D.C. Circuit might support plaintiff's position, the Second Circuit declines to follow that case, Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969).

Issue 2: when the district court originally dismissed plaintiff's case in its entirety, he went to the Court of Appeals, which to get it reinstated. One of plaintiff's claims was a due process action, which was premised in part on his retaliation claim. The Court of Appeals remanded the case back to the district court, specifically addressing the retaliation claim but not affirming the dismissal of the due process claim either. The due process was sort of impliedly revived on appeal. But the district court overlooked that implied ruling and said the due process claim was gone for good because plaintiff had abandoned it on appeal. The Second Circuit, in this second appeal, says the due process claim never actually died and that plaintiff did not actually abandon it. Although plaintiff focused on the retaliation claim during the first appeal, he noted that his due process claim was related to the retaliation claim. And when the Court of Appeals in the first appeal reinstated the retaliation claim, it vacated the entire district court judgment, which necessarily included the due process claim. So while the jury rejected the retaliation claim on remand, it will now take up the due process claim on the second remand.