Here is how Rule 56.1 statements work on summary judgment motions

Let this case serve as a warning for plaintiff-side lawyers who have to respond to summary judgment motions. Under the rules, the defendant in seeking summary judgment has to provide a list of undisputed facts for the district court to ponder as it determines whether there are enough undisputed facts to take this case from the jury and decide the case from the bench, on the summary judgment papers. The plaintiff has to respond to that statement of facts. When happens when the plaintiff fails to properly do so?

The case is Malarczyk v. Lovgren, a summary order issued on November 21. The statement of undisputed facts is called a Rule 56.1 statement, named after the federal rule governing summary judgment motions. Defendant's Rule 56.1 statement has to be in numbered-paragraph form and cite to the record for each undisputed fact. Example: "Paragraph 10: Plaintiff received a negative performance review on June 15, 2022. See Exhibit A to Affirmation of Joe Blow." Plaintiff can admit or deny this statement, but if he denies it, he must cite to the record as well. Example: "Denied. On June 15, 2022, the performance review was not 'negative' but lukewarm at worst, as Plaintiff received three positive ratings out of eight. See Exhibit 3 to Affirmation of Vincent Barbarino." This rule is so beloved by judges that even the state court system has now adopted it on summary judgment motions as well.

The court's rules in all four federal districts in New York say that failure to controvert the defendant's Rule 56.1 statement means the plaintiff concedes that fact. This is an important rule, obviously, as failure to controvert a disputed fact can cause the trial court to dismiss the case upon finding that plaintiff really did receive a negative performance review on June 15, 2022, only a week prior to his termination, thereby undermining the discrimination claim. The district court in this case dropped a footnote in this case expressing puzzlement as to why plaintiffs continue to (sometimes) violate the Rule 56.1 requirement While the trial court has discretion whether to overlook this kind of mistake, if the court does not overlook it and the case is dismissed, the plaintiff is in trouble on appeal. That's this case. 

Since plaintiff did not controvert the defendant's Rule 56.1 statement, instead filing a document bearing that title without properly citing to the record, all the facts in the Defendant Trooper's Rule 56.1 statement are deemed true for purposes of this case. That ends plaintiff's malicious prosecution claim, which the Trooper challenged on the basis that probable cause existed to arrest plaintiff. 

I note that the facts as set forth in the district court ruling show this episode unfolded just a stone's throw from my office, just up the road from me. The Court of Appeals (Lohier, Nardini and Robinson) says plaintiff loses the case because another officer told the Defendant that plaintiff had alcohol in his motor vehicle, ran a red light, drank the alcohol while driving, failed to stay in his lane, and threw the beer can out the window. As the defendant saw plaintiff's bloodshot eyes and smelled alcohol on his breath, he had probable cause to arrest plaintiff, killing the malicious prosecution claim.

Religious challenge to COVID vaccine mandate fails

COVID-19 religious discrimination cases are now being decided on a regular basis by the Court of Appeals, as the cases that were filed in 2020 and 2021 are being resolved in the district court and reaching the Court of Appeals, which is slowly developing a body of case law on these issues. In this case, the plaintiff loses after claiming a religious exemption to a COVID vaccination mandate.

The case is D'Cunha v. Northwell Health Systems, a summary order issued on November 17. Plaintiff did not want the vaccine and claimed a religious exemption. Management fired her, claiming they were not longer accepting religious exemption requests. 

The religious discrimination claim is dismissed for good. The Court of Appeals (Cabranes, Chin and Kahn) says plaintiff cannot win the case, even under the lenient, pre-discovery Rule 12 standards, because she was working directly with patients.  An exemption would create an undue hardship for this medical defendant, which was required to follow the Department of Health's mandate that all hospital employees be vaccinated by September 27, 2021. 

Undue hardship is an affirmative defense, meaning the employer has to raise and prove that defense to win the case. But the employer can win the case even under Rule 12 if the undue hardship is clear from the plaintiff's allegations in the Complaint. Here, the Court of Appeals holds, the employer wins the undue hardship argument at this early stage because "Title VII [which prohibits religious discrimination] does not require covered entities [like hospitals] to provide the accommodation that Plaintiffs prefer -- in this case, a blanket religious exemption allowing them to continue working at their current positions unvaccinated." It would be an undue hardship for defendant to violate the State vaccination mandate, the Court of Appeals holds, as Title VII cannot require employers to violate binding regulations. 

Inmate-plaintiff cannot sue officer who threw juice at him

The inmate sued a jailer under the Eighth Amendment, which prohibits cruel and inhuman treatment. The district court allowed this case to proceed to trial, but the correction officer took his case to the Court of Appeals, which says the CO gets qualified immunity and the case is over. 

The case is Mustafa v. Pelletier, a summary order issued on November 14. Here's what happened: plaintiff says that defendant, while delivering meals, placed a cup of juice on a fold-down tray that allows food to be passed through the cell door. The defendant deliberately catapulted the juice into plaintiff's face. You may think this case is a waste of time, but ask yourself, would you like it if someone thrust juice into your case? That is not the issue, though. The question is whether this was excessive force in violation of the Eighth Amendment.

All public defendants can invoke qualified immunity to avoid suit. This immunity attaches if no prior case was sufficiently similar to this one that the defendant was on notice that he was violating the Constitution. My guess is there is probably no case quite like this one, so that helps the defendant. The problem for plaintiff is that courts have held for decades that not every push or shove by a CO will violate the Eighth Amendment, and the plaintiff has to show the actions were wanton, or malicious. Federal judges are nervous about second-guessing CO decisions inside the jails, which remain dangerous places and require split-second judgments. The question is not whether the plaintiff suffered harm but whether the CO applied force maliciously or sadistically in order to cause harm. 

The Court of Appeals (Leval, Parker and Nardini) holds the CO gets qualified immunity, thereby reversing the district court's contrary order. The Court uses the trial court's words against it in dismissing the case:

As the district court recognized when considering whether Mustafa had alleged a constitutional violation in the first place, “there is a mix of authority” about whether the alleged conduct was de minimis “as a matter of law.” That conclusion should have been dispositive of the qualified immunity question, because where there is nothing more than a “mix of authority” in the case law as to whether alleged conduct might or might not violate the Constitution, it cannot be said that such conduct transgresses clearly established law. We agree with the district court that there is no governing case law indicating that the conduct alleged in this case, if proved, would violate the Eighth Amendment. Accordingly, Officer Pelletier was entitled to qualified immunity.

In other words, when the district court is not sure if the case law really supports the plaintiff in a constitutional claim, then qualified immunity must attach. Now, some cases allow the inmate to sue when a CO throws certain things at him such as in Hogan v. Fischer, 738 F.3d 509 (2d Cir. 2013), where the CO threw feces, vinegar and machine oil at the inmate, burning his eyes and causing physical injuries. But that is a far cry from throwing a cup of juice at the inmate. In a classic understatement, the Court says, "the indignity of being splashed with juice cannot be placed on the same level as being sprayed with a combination of human excrement and noxious chemicals."

Excessive force claim will go to trial

The defendant police officers shot the plaintiff following a pursuit in the City of Albany. The plaintiff sued the officers for excessive force and false arrest. The district court denied the officers' motion for qualified immunity, so the case reaches the Court of Appeals, which splits the baby and issues a ruling for each side. This case once again shows how qualified immunity works in police misconduct cases.

The case is Williams v. City of Albany, a summary order issued on November 13. Officers can invoke qualified immunity if the law was not clearly established at the time of the incident. They get immunity if no prior case law with similar facts said the officers' conduct was likely unconstitutional. Under this generous standard, qualified immunity is granted quite frequently. This immunity is so favorable to law enforcement, and other government defendants, that if immunity is denied at the trial court level, the defendant can file an immediate appeal. Normally, you have to wait for the entire case to play out to take up an appeal on any issue in the case. The catch is that to pursue the appeal, the officer has to concede for purposes of the appeal that the plaintiff's version of events is true and that, based on those stipulated facts, the officer gets the benefit of the doubt and therefore immunity.

This excessive force claim does not lend itself to qualified immunity because the parties still disagree about basic facts, even on appeal, such as how far plaintiff was from the officers when they shot him, whether plaintiff was holding a weapon in his hands such that it would have been visible to the officers during the pursuit, and whether plaintiff ignored the officers' instructions to get on the ground and drop the weapon. The jury will have to resolve these disputed facts before the trial court can issue a definitive qualified immunity determination.

The false arrest claim, however, is dismissed on qualified immunity grounds. The Court of Appeals (Lohier, Nardini and Robinson) reverses the trial court in holding the officers have "arguable probable cause," which is the test in immunity cases in the false arrest context. The opinion is not clear on this but it appears plaintiff ran away when the officers tried to arrest him for brandishing a weapon in a commercial establishment. The officers had arguable probable cause because the parties agree on the following facts that allowed them to arrest plaintiff:

Here, it is undisputed that Appellants had knowledge of a 911 call in which a witness reported that a man wearing a “grey hoodie and dark faded jeans,” who had a gun, “was threatening people” outside of a store “and threw glass and water bottles at the front door” of the store. It is also undisputed that Williams matched the physical description of the suspect; that Williams was seen by the officers on a street corner near the store shortly after the 911 call; that Williams ran away when the officers approached him; that the officers later learned before arresting Williams that the store owner and another store employee each made a statement to police that the suspect flashed a gun and told the store owner that he would “put a burner in [him],” and that the store owner later identified Williams in a photo lineup as the suspect. 

These facts are enough to arrest plaintiff for criminal possession of a weapon in the fourth degree. The trial at the district court will therefore not have any claims for false arrest but will instead focus on the excessive force claim arising from the police officers' shooting plaintiff following the pursuit.

 

Circuit clarifies rules for religious discrimination cases

Inmates have rights, too. This one claims jail officials at Green Haven Correctional Facility prevented him from attending religious services in violation of the Free Exercise Clause of the First Amendment. The district court dismissed his case, holding that the services denial did not substantially burden his religious practices. The Court of Appeals reverses and  plaintiff can proceed with his case.

The case is Wiggins v. Griffin, issued on November 20. While plaintiff complained to jail employees that he had not been able to attend religious services ever since they relocated him to a different part of the jail, no one took action to fix the problem. While the district court thought plaintiff's inability to attend these bible study classes was de minimis in that he only occasionally missed the religious services, the Court of Appeals (Kearse and Menashi) disagrees, noting that it has held in the past that preventing a prisoner from engaging in congregational prayer constitutes a substantial burden on the prisoner's religious exercise. 

The Court notes that the Second Circuit has never determined whether the "substantial burden" test survived the Supreme Court's ruling in Employment Division v. Smith (1990), which said that governmental practices that incidentally burden religious practices do not violate the Free Exercise Clause if the practices are generally applicable to everyone, not just the religious practitioner. So we have a 33 year mystery. But the Court of Appeals does not answer that question in this case because the government concedes that the burden on plaintiff's rights was substantial. 

The Court also holds for the first time that plaintiffs in these cases must show the governmental defendants were deliberately indifferent to their religious rights. This state-of-mind test applies in other Circuits, and now it applies in the Second Circuit. Negligence will not win a case like this. Nor must the plaintiff show the defendants outright intended to violate their rights. Deliberate indifference is a middle-ground test, which plaintiff satisfies here since it appears jail officials ignored his complaints that he was not able to attend religious services.

Interesting concurrence by Judge Menashi, who says that plaintiffs in these cases should not be required to show they were substantially burdened in their religious practices, and that any burden violates the Free Exercise Clause. He reaches this opinion based on language in Supreme Court religion cases, including Smith, which seemed to have dispensed with that requirement. Yet, courts still apply that requirement. He advises that in a future case, the Second Circuit should rule that plaintiffs need only show a burden on their religious practices, not a substantial burden. "Three decades is too long for federal judges to be telling litigants which of their religious beliefs are 'unimportant.'"

FELA plaintiff gets her day in court against Amtrak

Today's case involves the Federal Employer's Liability Act, which allows federal employees to sue their employers who failed to provide them with a safe place to work. I do not believe New York has a counterpart, which means you have to seek workers' compensation for these injuries. FELA is one of the benefits of working for the federal government. The Court of Appeals says plaintiff has a case.

The case is Sierra v. National Railroad Passenger Corp., a summary order issued on November 17. National Railroad Passenger Corp is also known as Amtrak. Plaintiff suffered injuries while cleaning a bathroom on the train. 

The Court of Appeals (Lee, Perez and Merriam) opens its discussion with the following: "Any Amtrak passenger knows that passenger train bathrooms look quite different at the beginning of a trip compared to the end." I do not even want such an image in my head, but the suggestion is the Amtrak bathrooms are pretty nasty when the railroad trip reaches its conclusion. Plaintiff was responsible for cleaning the bathrooms after each journey. "As Sierra describes it, the only way to remove these stains and the smell is to '[s]crub the floor really good. Really wet. . . . Wet, wet, mop, mop, scrub really hard.' The goal? To 'leave the premises impeccable.'” This required her stand on a very wet floor, a potential hazard. While that approach is against Amtrak rules, her supervisors knew she was standing on the wet floors and never intervened. 

A relaxed standard guides these cases. As the Court of Appeals notes, "It 'has been accepted as settled law for several decades, that the standard to be applied by the jury in a FELA case 'is simply whether the proofs justify with reason the conclusion that  employer negligence played any part, even the slightest, in producing the injury or death for which damages are sought.'” That is not your usual negligence standard in slip-and-fall cases in state court. 

While the trial court dismissed the case on summary judgment on the basis that the record does not show that Amtrak had actual or constructive notice of the slippery conditions of the train bathrooms or that the methods required to clean the bathrooms created unsafe and slippery conditions, the Court of Appeals remands this case for trial because plaintiff testified that her supervisors knew how she was cleaning the bathrooms and never intervened. The jury will have to sort this out at trial.

Excessive force case against Albany police will go to trial

This police misconduct case was cleared for trial by the district court, but the police officers took their arguments to the Court of Appeals, claiming they are entitled to qualified immunity. That is one of the few ways you can appeal a pre-judgment trial court ruling in the federal system: arguing that qualified immunity attaches and the defendant police officers are immune from suit. Here, the excessive force claim will go to trial, but the false arrest is dismissed on immunity grounds.

The case is Williams v. City of Albany, a summary order issued on November 13. If disputed factual issues make it impossible for the trial court to grant the officers qualified immunity, then the district court's ruling cannot be appealed. What will happen at trial is the jury will tell the trial court what happened factually and the trial court will then determine if those facts entitle the officers to immunity. Here, disputed fact issues about the excessive force will have to be sorted out by the jury. In this case, officer Olsen shot plaintiff Williams, who claims the gunshot was excessive. But the facts are disputed at this point. Here's why:

the parties dispute the following facts, among others: whether Williams was holding a weapon in his hand such that it would have been visible to the officers at any point during the pursuit, ignored Detective Olsen’s instructions to get on the ground and drop the weapon, and ran toward Detective Olsen at any point. On appeal, the parties also continue to dispute the distance between Detective Olsen and Williams when Detective Olsen shot Williams.

While that claim will go to trial, the false arrest claim will not. The officers are entitled to qualified immunity on that claim. Here is how the Court of Appeals (Lohier, Nardini and Robinson) summarizes the evidence:

Here, it is undisputed that Appellants had knowledge of a 911 call in which a witness reported that a man wearing a “grey hoodie and dark faded jeans,” who had a gun, “was threatening people” outside of a store “and threw glass and water bottles at the front door” of the store. It is also undisputed that Williams matched the physical description of the suspect; that Williams was seen by the officers on a street corner near the store shortly after the 911 call; that Williams ran away when the officers approached him; that the officers later learned before arresting Williams that the store owner and another store employee each made a statement to police that the suspect flashed a gun and told the store owner that he would “put a burner in [him]”; and that the store owner later identified Williams in a photo lineup as the suspect.

These undisputed facts gave the police arguable probable cause to arrest Williams. While the Fourth Amendment says you need probable cause to arrest, in the qualified immunity equation, arguable probable cause is enough to avoid a lawsuit. This gives the police some room for error and immunizes them from suit unless the probable cause violation is obvious. 

 

 

Inmate wins cigarette smoke health-risk appeal

This case was filed by an inmate in the New York corrections system. He claims that jail officials were deliberately indifferent to his medical needs in violation of the Eighth Amendment. He argues that cigarette smoke in the prison was harmful to his health. The district court dismissed the case on summary judgment. The Court of Appeals gives him a second chance.

The case is Braxton v. Bruen, a summary order issued on November 13. The Court of Appeals (Livingston, Parker and Nardini) holds it was premature for the district court to grant summary judgment on this claim without plaintiff an opportunity for additional discovery that might prove his claims. Plaintiff's theory of the case was that he complained about this health risk to the Central Office Review Committee (CORC) but that this committee ignored the letters. On the summary judgment motion, the individual defendants named in the lawsuit said they did not serve on the CORC but had designated others for that task. But plaintiff says he does not know who these designees are. The Court of Appeals says plaintiff deserves the right to find out their identities.

Pro se litigants are a serious disadvantage when it comes to discovery. That was the case here. The Court of Appeals gives plaintiff the opportunity to identify these officers who may have received his letters. The Court of Appeals said in Davis v. Kelly, 160 F.3d 917 (2d Cir. 1998), that special rules guide cases brought by pro se inmates who are trying to identify the right defendants in their civil rights cases. Davis is the controlling precedent here, and plaintiff gets that opportunity on remand. Discovery will be reopened for that purpose. The Court of Appeals assigns pro bono counsel for that purpose.

Student athlete has retaliation claim against Syracuse University

The Supreme Court decided almost 25 years ago that Title IX discrimination cases against universities for sex discrimination are going to be much harder for plaintiffs to win than Title VII discrimination cases against employers. To win the case, a Title IX plaintiff must show the university was deliberately indifferent to the student-on-student discrimination. That is a difficult burden, far higher than other discrimination cases. We see how it all plays out in this case against Syracuse University. Bottom line: the plaintiff loses her discrimination case under Rule 12, but her retaliation case -- which is not bound by the deliberate indifferent test -- will proceed to discovery.

The case is Doe v. Syracuse University, a summary order issued on November 8. I assisted in briefing the appeal, which was argued by James Aliaga, Esq. Doe was a student-athlete whose boyfriend, Scanlan -- a star athlete at the University -- abused her physically. This was a highly-publicized case in central New York. Even his teammates protested what the boyfriend did to Plaintiff and how the University responded to her complaints.  

Doe complained to university authorities about Scanlon. She claims the institution failed to properly respond to her complaints, but the district court found (and the Court of Appeals affirms) that however we might criticize the University's response, it was not deliberately indifferent to her rights as a female student-athlete. 

The abuse allegations fall into two categories. Pre-April 2021, and post-April 2021, when plaintiff's boyfriend assaulted her. The Court of Appeals (Park, Lynch and Subramanian [D.J.]) reasons that, when plaintiff reported the abuse prior to the assault, the Title IX Office promptly provided Plaintiff with information about its policies, resources (including safety escorts and counseling), and the complaint process; set up virtual meetings to discuss her situation; and sent follow-up emails to check in with Doe and to offer further support. And SU promptly entered a No Contact Order binding Scanlan, the remedy that Doe wanted. While the University did not conduct an independent investigation, that was not deliberate indifference, the Court says, because "the relevant federal regulations caution against school intervention when a complainant declines to pursue further action. The Court observes that plaintiff did not want further action. I would note that in the employment context, courts will hold the employer failed to protect the female employee in not investigating, even if she told management she did not want an investigation. The rules guiding universities are different, as you can see in this case. 

Plaintiff complained again, this time to campus police, after her boyfriend assaulted her in April 2021. Campus police waited one week before they contacted the City police. But that is not deliberate indifference under Title IX. "The approximately one-week delay between the April 2021 assault and the Syracuse Police Department and the District Attorney of Onondaga County being notified was not 'lengthy and unjustified.' The district court correctly recognized that much longer delays have not been found to be clearly unreasonable."

Plaintiff does convince the Court of Appeals that she has a retaliation claim. After she reported Scanlon's abuse, Deputy Athletics Director Keenan-Kirkpatrick and a women's lacrosse coach directed a hostile message toward her. These individuals messaged to plaintiff that she was "no longer welcome at SU Athletics by New Coach and [an] intimidating statement regarding ‘burning bridges’ or leaving in a ‘nasty way’ from Keenan-Kirkpatrick.” The Court of Appeals holds that "Doe plausibly alleges that these conversations were threats that “could well dissuade a reasonable [student] from making or supporting a charge of discrimination.” Moreover, the Court says, "it is plausible that these threats were made in retaliation for her sexual assault reporting or anticipated pursuit of legal action against SU." Plaintiff ultimately left the University. The retaliation claim will proceed to discovery.

The retaliation portion of this ruling draws from Title VII employment discrimination precedents, not Title IX educational discrimination precedents. So the burden of proof is more lenient for plaintiff on the retaliation claim than the underlying discrimination claim. 

Damages for pain and suffering are much lower in the State Division of Human Rights

Not every employment discrimination gets filed in court, either state or federal. Some are filed in the New York State Division of Human Rights, which has authority to investigate and settle claims, and if settlement fails, the DHR can hold an evidentiary hearing and award damages if the plaintiff wins the case. But litigants should know that damages are limited in the DHR, including damages for pain and suffering.

The case is Town of Hempstead v. New York State Division of Human Rights, a Second Department ruling issued on April 26. This is a disability/reasonable accommodation case. The plaintiff alleged, and the DHR judge agreed, that following her work-related injury, plaintiff suffered discrimination because her municipal employer refused to accept her medical documentation that she was fit to return to work full time and eliminated her position in retaliation for her litigation before the DHR. The hearing officer awarded plaintiff damages as follows: (1) back pay of approximately $27,000 for a 10-month period (August 2013 to June 2014), (2) $40,000 in mental anguish, and (3) a civil fine against the Town in the amount of $35,000. The civil fine is similar to punitive damages. The DHR Commissioner increased plaintiff's back pay to nearly $70,000 (covering November 2012 to June 2014) but dismissed the retaliation claim. The Commissioner held firm on the pain and suffering damages and the civil fine.

Off to the Appellate Division, which affirms the finding of liability but reduces the damages. Plaintiff does not get back pay dating to November 2012 because the Town was unable to accommodate her at that time because she was unable to perform an essential job function -- typing on a computer -- at that time. She does get back pay from August 2013, when she sought reinstatement and the Town denied that request, but the Workers' Compensation benefits she received at this time should have been offset against the backpay award to prevent a double recovery. The back pay is reduced from nearly $70,000 to approximately $17,700. That's a big reduction.

The pain and suffering award of $40,000 is too high, says the Appellate Division. In federal court, a jury may award, and the judge may subsequently accept as reasonable, a much higher damages award for this kind of discrimination, perhaps up to $100,000 for what we call "garden variety" pain and suffering not involving medical or psychiatric intervention. But the state system awards much less than federal courts in my experience, and the Appellate Division thinks plaintiff should only recover $10,000. There is no federal judge in the SDNY or EDNY who will reduce a pain and suffering award to $10,000. But the Appellate Division treats this as a simple issue. The Court says that plaintiff's diagnosis of major depressive disorder occurred in March 2013, prior to the discriminatory conduct of August 2013, and was not initially related to her medical condition which gave rise to the disability discrimination claim. Even without that timeline, $10,000 is low for a discrimination case in federal court. But here we are in state court, and things are different in cases litigated in the DHR.

What about the civil fine? It drops from $35,000 to $10,000 because the retaliation claim, upon which the civil fine was partly based, was dismissed in the Appellate Division.

Habeas corpus petition denied despite hearsay eyewitness testimony

This habeas corpus petition alleged that the petitioner's murder conviction in state court was unconstitutional because the trial court committed certain errors that deprived him of a fair trial. We see in this case how difficult is it win habeas petitions ever since Congress in the mid-1990s tightened the standards for challenging your state court convictions in federal court. The defendant loses the habeas petition.

The case is Wilson v. Capra, a summary order issued on November 1. Based in part on two eyewitnesses, and police testimony about out-of-court statements from two other eyewitnesses, the jury convicted Wilson of fatally shooting someone outside a residential building in 2006. The trial court determined that Wilson caused the two latter eyewitnesses to avoid testifying in court. The habeas petition challenges the sufficiency of the evidence to convict Wilson, the hearsay testimony, the lack of any missing witness instruction, and the trial court's instruction on witness credibility.

To win a habeas petition in federal court, it is not enough to show that unconstitutional things happened during the criminal trial. That was the rule prior to the mid-1990s, when Congress said the criminal defendant has to show the questionable trial court rulings violated clearly-established Supreme Court authority. That standard gives state courts, including the state appellate courts which can independently review the convictions, some leeway to interpret the Constitution so long as they do not run afoul of specific Supreme Court holdings.  Wilson does not meet that difficult standard, the Court of Appeals (Parker, Bianco and Rakoff [D.J.]) holds.

On the evidence sufficiency claim, the Second Circuit defers to the jury's credibility findings against Wilson even though the two eyewitnesses had credibility issues. While Wilson said "their trial testimony was inconsistent with their prior statements and other evidence in the case, and that one eyewitness . . . had received financial benefits and lodging from prosecutors for several months and was hoping they would help her with her parole application," the jury was still able to rely on their eyewitness accounts. Credibility issues are almost always for the jury.

On the police testimony drawing from eyewitness statements from witnesses who did not testify at trial, the first witness recanted his statement that he saw the shooting because two men told his father he was a "snitch" and that Wilson himself told the witness he should "do the right thing." The other eyewitness told the police that Wilson's cousin asked him about his name being on the witness list. The Second Circuit defers to the trial court's finding that Wilson had commissioned these people to scare the witnesses from testifying, and the trial court's analysis, while did not use the magic words in its analysis, was enough to show it had thoughtfully analyzed this issue in allowing the police to testify about these outside witnesses' account implicating Wilson.

Get the picture? This is a long ruling for a summary order because Wilson raised a series of issues, and since the federal district court issued a certificate of appealability, which allows you to appeal an adverse habeas ruling to the Second Circuit, Wilson's issues were not frivolous. But they were not strong enough to get around the strict habeas corpus rulings now in place. 

Title VII reverse sex-stereotyping claim fails

From time to time, male plaintiffs bring an action against their employer under Title VII claiming they were illegally stereotyped as sexual harassers. These cases are difficult to win and most such cases are dismissed. This case is one of them.

The case is Lorefice v. State of New York, a summary order issued on November 3. Plaintiff was fired from his 20-year job as a biologist with the Department of Environmental Conservation over his interaction with a female colleague. After the woman declined to go on a hike with plaintiff, he sent her numerous Facebook messages to which she did not reply. The messages "were expressions of affection towards DK and also 'proposed a life together.'" The way Facebook works is that if you are not Facebook friends with someone, your messages may get lost into the spam folder. That's probably what happened here. One day, DK discovered all the messages and she reported plaintiff to her supervisor, who suspended plaintiff. As the Court of Appeals tells the story, here is what happened next:

Lorefice then participated in a disciplinary arbitration where the DEC claimed he had demonstrated a pernicious pattern of pursuing women he met at the workplace. Several years earlier, Lorefice had pursued another co-worker at the DEC and was told to halt communication with her. The arbitrator found Lorefice guilty of the majority of the charges involving DK, including sexual harassment, and recommended he be terminated. The DEC adopted the arbitrator’s recommendation and terminated Lorefice accordingly.

The district court and Court of Appeals reject plaintiff's theory under Title VII that his termination was "a stereotypic response to his conduct" and that the agency wanted "to show fake solitary with the 'me too' movement" and, as such, the agency's response to his conduct was "gender stereotypic" in assuming that plaintiff was "aggressive and could not control himself" and that "a female is timid and unable to speak up for herself." The court say in this case that the complaint, even under Rule 12 standards, does not assert a plausible sex discrimination claim.

As the Second Circuit (Newman, Lee and Nathan) sees it, even accepting the allegations in the complaint as true, plaintiff has not asserted any facts showing gender discrimination. No statements or actions from management permit any inference gender stereotyping. Moreover, even if plaintiff did not engage in sexual harassment, there is no such inference of stereotyping. The Court writes, "Lorefice does not cite to, nor are we aware of, any case law in which an employee’s termination due to an erroneous accusation of sexual harassment by itself gives rise to an inference of gender stereotyping." What is more, the Court says, the complaint itself suggests that DEC had grounds to fire him because plaintiff conceded that "he sent messages to DK proposing a life together, made her feel uncomfortable, and had previously engaged in similar behavior towards another coworker. This conduct itself provided reasons for the DEC to terminate Lorefice, independent of however the DEC may have viewed him in relation to his gender."

Inmate may sue jail for contracting COVID-19

COVID-19 cases will be with us for years to come. This case involves an inmate who alleges he was placed in a jail block even though jail officials knew inmates in that block had COVID-19 and disregarded medical advice in placing him there. Does plaintiff have a case?

The case is Nazario v. Thibeault, a summary order issued on October 31. Plaintiff sues under the Eighth Amendment, which prohibits cruel and inhumane treatment of inmates. The following is a summary of plaintiff's factual allegations:

Nazario claims, among other things, that Thibeault knew there were inmates in E-Block exhibiting Covid-19 symptoms and disregarded medical advice by transferring him there. Therefore, we assume that the district court correctly concluded that a reasonable jury could find that Osborn failed to follow Department of Correction (“DOC”) Covid-19 policies, including policies regarding the quarantine of inmates with Covid-19 housed in E-Block; that Thibeault knew of Covid-19 positive and/or symptomatic inmates in E-Block and disregarded the risk associated with Nazario’s transfer there; and that Thibeault failed to provide Nazario with personal protective equipment (“PPE”) knowing that Nazario was at  heightened risk of contracting Covid-19 because he lacked the necessary PPE to perform his laundry job.

In short, plaintiff was placed at risk of contracting COVID-19 because defendant ignored medical advice and transferred him to a risky part of the jail. The decision is not clear whether plaintiff actually got COVID, but the district court ruling gives us the details:

While living in E-block, Plaintiff contracted COVID-19. As a result, he was transferred to F-Block on April 29, 2020. The next day, he was transferred to Northern, where his condition deteriorated, and he was put on a breathing machine.  On his first day at Northern, Plaintiff was transferred to UCONN Medical Center, where his condition continued to deteriorate. He remained at UCONN Medical Center for a week as he recovered from COVID-19 and was then transferred back to Northern, where he experienced “after-effects of COVID-19,” including damage to his heart and circulatory system. On May 13, 2020, Plaintiff had a heart attack at Northern, leading paramedics to transport him to the ICU at Hartford Hospital, where he underwent multiple stent procedures. At the hospital, Plaintiff's heart stopped twice, and hospital staff revived him both times. Due to his heart attack, Plaintiff had a pacemaker permanently implanted in his chest.

While living in E-block, Plaintiff contracted COVID-19. [Dkt. 27-2 (Add. Mat. Facts) ¶ 23; Dkt. 1 ¶¶ 32–34]. As a result, he was transferred to F-Block on April 29, 2020. [Dkt. 27-2 ¶ 29]. The next day, he was transferred to Northern, where his condition deteriorated, and he was put on a breathing machine. ([Dkt. 27-2 (Add. Mat. Facts) ¶¶ 23–24; Dkt. 1 ¶¶ 34–35].¹² On his first day at Northern, Plaintiff was transferred to UCONN Medical Center, where his condition continued to deteriorate. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 36–37].¹³ He remained at UCONN Medical Center for a week as he recovered from COVID-19 and was then transferred back to Northern, where he experienced “after-effects of COVID-19,” including damage to his heart and circulatory system. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 38–41.])¹⁴ On May 13, 2020, Plaintiff had a heart attack at Northern, leading paramedics to transport him to the ICU at Hartford Hospital, where he underwent multiple stent procedures. [Dkt. 27-2 (Add. Mat. Facts) ¶ 24; Dkt. 1 ¶¶ 42–44]. At the hospital, Plaintiff's heart stopped twice, and hospital staff revived him both times. [Id.]. Due to his heart attack, Plaintiff had a pacemaker permanently implanted in his chest.

Nazario v. Thibeault, No. 3:21-CV-216-VLB, 2022 WL 2358504, at *3 (D. Conn. June 30, 2022)

The district court denied the State's summary judgment motion, ruling that disputed facts preclude any qualified immunity defense as a matter of law. This immunity gives State officials the benefit of the doubt -- and relieves them of any litigation burdens -- if the defendant did not violate clearly-established law. Many cases are dismissed on qualified immunity grounds, and the defendant may ultimately enjoy that immunity once all the evidence is presented at trial, but the district court and Court of Appeals hold that if the jury credits plaintiff's version of the facts, it may find the defendant, a deputy warden, violated clearly-established law under the Eighth Amendment. So the lawsuit will proceed to trial unless the parties settle.

The Court of Appeals does not squarely address this, but what is the clearly-established law prohibiting jail officials from placing an inmate in a jail location that poses a COVID-19 risk? The law is clear that you cannot demonstrate deliberate indifference to serious medical needs. But the qualified immunity analysis usually requires a case on point from the Court of Appeals with facts that resemble this case. I don't think the Second Circuit has applied the Eighth Amendment in the context of jailhouse COVID-19 decisionmaking. The district court did address this issue, noting that "The Second Circuit has 'held that correctional officials have an affirmative obligation to protect inmates from infectious disease.'” The citation for this is Jolly v. Coughlin. 76 F.3d 468, 477 (2d Cir. 1996). Jolly is a pre-COVID case, but it is close enough to plaintiff's case that he can bring this lawsuit.