Wrongful death case will go to jury and qualified immunity is denied, for now

This police misconduct case will go to trial because the parties dispute what happened when the police shot and killed a motorist in Troy, New York. The factual disputes prevent the police from claiming qualified immunity, the defense that normally is available when the law at the time of the constitutional violation was not clearly-established.

The case is Thevenin v. French, a summary order issued on March 15. Plaintiff's representative says the officer killed the decedent on a bridge after he refused to be arrested for suspected driving while intoxicated in the course of a low-speed chase. Plaintiff says the victim posed no threat to the police when he pulled the trigger.

Every lawsuit has a defense. In this case, the police say the officer fired the shots because the driver had used his car to pin him between the driver's car and his police vehicle, the officer heard the engine revving, and he thought he was going to die. On the basis of these factual disputes, the district court denied the officer's motion for summary judgment, and the officer appealed, invoking a rare procedure that allows a party to appeal directly to the Court of Appeals when a summary judgment motion is denied. Qualified immunity allows public officials to appeal right away when immunity is denied, in furtherance of the policy that immunity allows the defendant to avoid the lawsuit altogether if, and only if, he deserves immunity.

But a jury must decide what happened here, not a court on a motion for summary judgment. As you can see, factual disputes make it impossible for the court to resolve this case on the cold papers. We need live witnesses to tell the jury what happened. For starters, the law was clearly established at the time of this incident that the police cannot use deadly force to apprehend a fleeing motorist unless the officer has probable cause to believe that force was necessary to prevent a significant threat of death or serious injury to the officer or others. The Second Circuit cites Cowan v. Breen, 352 F.3d 756 (2d Cir. 2003), for that proposition. 

While the driver did resist arrest and took off in his car away from the police, the chase ended when the motorist's car hit a concrete barrier. At that point, an eyewitness said, the officer exited his police car and shot the driver 8 to 12 times without saying a word. The witness said the motorist's car was not moving when the officer shot him. The witness also said that, after the shooting, the motorist's vehicle began rolling forward, causing the officer to be trapped between his car and the motorist's car, and the eyewitness helped to free the officer. The Court of Appeals (Leval, Lynch and Bianco) says under this version of the facts the officer can be held liable for excessive force. 

An interesting footnote says there are also factual disputes about what happened prior to the shooting, when the officer first tried to arrest the victim. The officer who shot the driver is also dead, by the way. While there are no witnesses who can dispute the officer's version of events prior to the shooting, "plaintiff is still free to argue to the jury that French's testimony as to the earlier events should not be credited based upon other evidence in the record and/or credibility issues that plaintiff asserts exists with French's testimony as a whole." The Court cites Reeves v. Sanderson Plumbing, Inc., 530 U.S. 133, 150 (2000), for that proposition. Reeves does say that, but you don't see it quoted for that purpose very often.

Pro se case is reinstated after trial court dismissed it over technicality

This prisoners' rights case was dismissed on the ultimate technicality. The Court of Appeals brings it back, finding the district court improperly threw out the case on the basis that the inmate did not properly update the district court as to his address.

The case is Mayanduenas v. Bigelow, a summary order issued on March 16. Plaintiff brought this case pro se arising from his prison conditions. After the left jail, he was homeless. You can imagine the difficulties he had in updating the court about his address. The case was dismissed for failure to prosecute under Rule 41 after his updated address contained "a small typographical error," as the Court of Appeals (Raggi, Cabranes and Kaplan [D.J.]) puts it. Plaintiff ultimately sent the court his correct address. By then it was too late. The case was dismissed for failure to prosecute. 

When cases are dismissed for failure to prosecute, the Court of Appeals will reinstate the case only if the trial court abused its discretion. That standard of review makes it quite difficult to win the appeal. But the Second Circuit notes that a dismissal for failure to prosecute is particularly harsh result that should be utilized in extreme circumstances, especially when the plaintiff is pro se.

What saves the case for plaintiff is the fact that he was homeless, had mental health struggles, and a limited language proficiency. While the trial court did apprise him of the need to notify it of his change of address, that directive was sent to the correctional facility after plaintiff had been released from jail. Prior to his release, plaintiff had kept the court apprised of his address. And, there is no prejudice to the state in this case as a result of plaintiff's failure to comply with the court's rules, as the delay did not increase the likelihood that evidence favorable to the state in this case would have been lost because of the delay. Discovery was not even scheduled to conclude when the case was dismissed. Plaintiff's case is back on the docket. 

Disability discrimination claims under Obamacare carry a four-year statute of limitations

Did you know that Obamacare includes provisions that allow people to sue over certain forms of disability discrimination? It does. The Affordable Care Act does many things, but it also allows for certain lawsuits. Like this one. The question here is what is the statute of limitations. The answer is four years.

The case is Vega-Ruiz v. Northwell Health, issued on March 24. Plaintiff is hearing-impaired. She accompanied her brother to the hospital and requested a Spanish-speaking sign-language interpreter to help fulfill her duties as her brother's proxy as he underwent surgery. She was denied the sign-language interpreter and instead given someone who communicated to her through written notes and lip reading. 

The case does not ask whether plaintiff has a case under the ACA. The question is whether she waited too late to bring this lawsuit, three years and three months after the incident. The district court dismissed the case, holding the statute of limitations is three years because her case was made possible by the Rehabilitation Act of 1973, a disability discrimination statute which carries that deadline. 

The Court of Appeals (Newman and Pooler) says this is really an ACA case, not a Rehabilitation Act case. The ACA does not articulate a statute of limitations. In the face of such an omission, the courts look to a law that Congress passed in 1990, 28 U.S.C. 1658(a), which provides a catch-all statute of limitations for laws that don't have one. The deadline under Section 1658(a) is four years for any act of Congress that was enacted after December 1, 1990.

The Court takes the time to examine the Americans with Disabilities Act, the Rehabilitation Act and the Affordable Care Act to determine what statute really applies in this case for purposes of the statute of limitations. It looks like the ACA provides greater rights to plaintiffs than the ADA and the Rehabilitation Act. And, the Court holds that ACA plaintiffs have a different case than those brought under the ADA. That means the plaintiff has a four-year statute of limitations, and her case is timely.  

Excessive force case against Mount Vernon will go to trial

It all started when plaintiff Ketcham, a former police officer, was approached by the police on the street. The police thought plaintiff had an outstanding warrant. Not seeing their badges or identification, plaintiff thought the officers were trying to mug or abduct him, so he called out for bystanders to call the police. At that point, officer Patterson overpowered Ketcham, grabbing his wrist. Patterson then "twisted Ketcham’s arms behind his back, threw him into a nearby chain link fence, and snapped handcuffs tightly around his wrists, causing him substantial pain." When "Ketcham told Patterson that the handcuffs were hurting his wrists, Patterson ignored the complaints, and the officers then slammed Ketcham's head into the car's door frame. The police then realized they had the wrong person and they let him go.

The case is Ketcham v. City of Mount Vernon, issued on March 29. The case was dismissed on summary judgment even though plaintiff claimed the officers had used excessive force against him. Of course, the officers gave a different account of what happened. Normally, cases like this proceed to trial without the defendants even filing a motion for summary judgment, as the factual disputes are so obvious there is no way for the municipal lawyers to argue that no jury can find for the plaintiff. But such a motion as made in this case, and the district court dismissed the case. The Court of Appeals reverses and returns the case to the district court docket.

What the district court got wrong was to hold that the plaintiff suffered minimal injuries and therefore cannot proceed with his case. The district court also saw the evidence from defendant's point of view in granting summary judgment, but that was improper. The Court of Appeals (Pooler, Wesley and Carney) writes:

Drawing all inferences in Ketcham’s favor, as required when considering a summary judgment motion, a reasonable factfinder could determine that Patterson, who acknowledged he did not feel that he was in any danger, unnecessarily threw Ketcham against a wall, placed him in overtight restraints despite his protestations, and deliberately pushed Ketcham’s head into the car door. We have held in similar cases that this type of judicial evidence weighing constitutes reversible error. 

The jury can instead find, that "Patterson used unnecessary force to restrain an unresisting individual and deliberately attempted to harm Plaintiff when he was already in handcuffs." While “[n]ot every push or shove, even if it may later seem unnecessary in the peace of a judge’s chambers, violates [an individual’s] constitutional rights,” cases hold that unnecessary handcuff tightening and pushing an arrestee’s head into a police car door can constitute excessive force. 

The district court also got it wrong in holding that plaintiff has no case because his injuries were minimal. The Court of Appeals provides some good language for plaintiffs' lawyers on this issue:

we have never held that a court may grant summary judgment to officers on an excessive force claim merely because the injuries were. minor even where the force was unreasonable. Any such holding would violate the rule announced in Graham and would grant a windfall to officers who commit misconduct but could escape liability based upon the hardiness of their victims. While the absence of serious injury is certainly a matter that the jury can consider in assessing both the reasonableness of the force and potential damages from any misconduct, a district court should not grant summary judgment on this basis alone.

 

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Sex-stereotyping claim involving sexual harassment allegations fails

Fact patterns like this often reach the office of plaintiffs' lawyers. Someone over the age of 40 is fired unfairly, or so the caller says. We now have a potential claim for age discrimination. There may be more to the story, but that's the case. Turns out the extra facts are that the ex-employee was accused of sexual harassment in the workplace. Now what?

The case is Bockus v. Maple Pro, Inc., a summary order issued on March 19. Plaintiff worked for the company for 13 years. He was let go when management told him they had received complaints about "some inappropriate behavior" toward other employees, and that the investigation uncovered a "pattern of disrespectful and inappropriate conduct." Plaintiff says management never even provided him with details of these complaints, and the state Department of Labor found these allegations were "unsubstantiated." Does plaintiff have a case?

The Court of Appeals (Leval, Lynch and Bianco) says he does not. This case was dismissed under Rule 12(b)(6), and the Second Circuit has relaxed pleading standards for discrimination claims, as per Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015). But even under these pleading standards, plaintiff cannot make out a plausible case of age or sex discrimination.

As for the sex discrimination, the Second Circuit in Sassaman v. Gamache, 566 F.3d 314 (2d Cir. 2009), said it is unlawful for an employer to presume that male employees were guilty of sexual harassment allegations and then to act upon that presumption, i.e., firing the man on the basis of that stereotype. I have not seen too many cases (if any) that have been sustained under the Sassaman principle, and this case fails as well. This is not a sex-stereotyping case, the Court of Appeals says, because (1) plaintiff does not allege that anyone at the company ever said or did anything that suggested the company treated men less favorably than women, and (2) his threadbare complaint "does not even identify the gender of the co-workers allegedly subject to harassment by him."

As for age discrimination, the case fails because "other than listing his age and date of birth, the complaint does not contain any allegations whatsoever relating to his age." While plaintiff contends that his "clam of bot sex stereotyping-plus-age discrimination is a claim of 'intersectional discrimination,'" the complaint simply does not allege enough facts to entitle the plaintiff to some discovery, and Being fired over the age of 40 is not enough to proceed under the Age Discrimination in Employment Act.

Evidence fabrication claim is revived on appeal as Court of Appeals says trial court misled the jury

This case implicates an unsettled area of constitutional law involving the fabrication of evidence against criminal defendants and when they can sue the police for that misconduct. The Court of Appeals holds the the plaintiff may sue the police because the criminal charge against him was dismissed in criminal court as facially insufficient, and the prosecutor ended up abandoning the charge altogether.

The case is Ashley v. City of New York, issued on March 26. The Second Circuit has long recognized the right to bring a fabrication of evidence claim. It has never held that the plaintiff must show the charges against him terminated in his favor, a necessary requirement for the different claim of malicious prosecution. But a recent Supreme Court case, McDonough v. Smith, 139 S.Ct. 2149 (2019), contains language that municipal defendants now think added the malicious prosecution-style "termination in favor of the accused" element to fabrication claims. 

In this case, the plaintiff's criminal case ended after the criminal court found the charges against the plaintiff insufficient and the prosecutor did not persist in pursuing the charge of marijuana possession. The city argues this dismissal was not a "favorable termination" because the prosecution's failure to proceed with the charge does not imply a lack of reasonable grounds to prosecute him. That language draws from "favorable termination" cases in our jurisdiction.

The Court of Appeals revives the fabrication claim following the district court dismissal without determining whether McDonough changes the landscape in adding a "favorable termination" element to these claims. Instead, it finds that, even if there is such a requirement, the jury may find the charges did terminate in plaintiff's favor because, while it was dismissed for facial insufficiency, the criminal court was super-critical of the charge, the prosecutor's second attempt at filing a clean charge was rejected, and then it abandoned the charge altogether. While facial insufficiency dismissals are not usually "favorable terminations," the problem with the prosecution's case, the Court of Appeals (Calabresi, Carney and Katzmann) says, is that the criminal court did not think the prosecution had any case against the plaintiff in the first place. 

The fabrication case originally went to trial in the Southern District. Plaintiff lost the jury verdict. But the Court of Appeals revives the claim and remands for a new trial because the jury charge was improper. The trial court told the jury that, in determining whether the police had a constitutional or fabricated basis to  arrest plaintiff for drug possession, it told the jury that paperwork errors, or mere mistakes by a police officer in making a written record, does not give rise to a constitutional violation. This was wrong, the appellate court says, because it could cause the jury to mistakenly believe "that fabrication turns in part of the severity of the error rather than simply the knowing falsity of the statement" used against the plaintiff. Since a fabrication claim only requires a knowing falsity against the plaintiff, this bad jury charge could have made a difference at trial. 

Collateral estoppel: how it works

Every dispute must end one way or another. One unhappy ending for the plaintiff is collateral estoppel, which means that a state court says something happened between the parties, the losing party in that case cannot bring another lawsuit in a different court that would challenge that initial adverse finding. So that plaintiff loses twice. This case shows us how it all works.

The case is Watley v. Department of Children and Families, issued on March 22. Plaintiffs are the parents of a child who was the subject of child neglect proceedings in Connecticut. The mother has significant disabilities, including narcolepsy, schizotypal personality disorder, antisocial personality disorder, etc. The state claimed the mother was not capable of raising the child, and sought to terminate her parental rights. The mother ultimately lost that battle. The plaintiffs then had two boys, and the state sought to terminate those parental rights under a "predictive neglect" theory, which I have never heard of but is self-explanatory. The plaintiffs lost their rights over the boys under state-law proceedings, as well. While the plaintiffs' defense to these proceedings invoked their disabilities, the state proceedings rejected those arguments on the basis that the Americans with Disabilities Act does not create special obligations in either termination or neglect proceedings. 

After the parents lost their cases in Connecticut court, they sued in federal court under the ADA and the Rehabilitation Act, claiming their rights under these statutes were violated, and they wanted a TRO to get the children back. They lost in the district court and appealed to the Second Circuit, which holds the factual findings in the state proceedings are binding on the federal court and cannot be challenged in the federal forum. 

That brings us to collateral estoppel. Under that rule, you cannot challenge state court findings in federal court when the state court resolved the same or a similar issue as the federal claim. The key to collateral estoppel is the identity of the issues in the state and federal cases. This is why the plaintiffs lose on that theory. While the state court proceedings did not consider the ADA or Rehabilitation Act defenses, they did consider the parent's mental condition in resolving this dispute. In other words, the arguments that plaintiffs advance in federal court were, for all intents and purposes, already resolved in the state court proceedings. So the plaintiffs lose.

A sad case all around, as the Court of Appeals (Pooler, Parker and Lynch) recognizes at the end of the opinion. But the Court notes that the Full Faith and Credit Clause under the Constitution compels this result and implicitly recognizes the collateral estoppel principle.