Inmate wins retaliation and Eighth Amendment pat-frisk claim against his jailers

This inmate claims that after the objected to sexual abuse in the course of a pat-frisk, he suffered retaliation in the form of solitary confinement as well as a vulgar threat from a correction officer who was present when plaintiff complained about the pat-frisk. But plaintiff only stayed in keeplock for one day. Other prison officials and employees told plaintiff to file further grievances or he would wind up back in the slammer. The retaliation continued when CO's beat up plaintiff, causing him to lose consciousness. He sues under the First Amendment, claiming retaliation for redressing his grievances. 

The case is Hayes v. Dahlke, issued on October 5. Inmates have the First Amendment right to pursue internal grievances over their mistreatment, and any retaliation is actionable against the offending officers if their response would deter a reasonable inmate from filing another grievance. We call that an "adverse action." 

We have a few retaliation claims here. First, plaintiff says he suffered an adverse action when a CO filed a false misbehavior report against him in retaliation for his grievance. The state says the one-day confinement is not enough for an adverse action and that the offending officer did not know that plaintiff had filed a grievance, but the Court of Appeals (Livingston, Sullivan and Nardini) says the jury should resolve these issues. On the adverse action issue, the record is too fuzzy to say with clarity exactly how long plaintiff would have remained in keeplock, as he was also punished for additional misbehavior. The point is that ambiguities are for the jury, not a court to resolve on a summary judgment motion. While the state further argued that there was no connection between the grievance and the adverse action because of the one-month lapse between the two events, that time period is enough to win the case at trial and, besides, plaintiff says the continuous and "sexually-charged verbal harassment throughout the time between the initial grievance and the misbehavior report" further supports plaintiff's claim that the grievance resulted in the adverse action. The moral of the story, the Court of Appeals says, is that "sending a prisoner to keeplock for some indeterminate amount of time could be enough to chill speech of a prisoner of ordinary firmness," especially in light of the other threats that were directed toward plaintiff.

Another claim involves another CO's verbal threats against plaintiff that "maybe all of this would go away" if he stopped filing grievances, and the CO's refusal to file plaintiff's grievance against the jail for a month. These kinds of threats are not sufficiently adverse under the First Amendment to allow plaintiff to proceed with his retaliation claim, even though, as the Court says, these were "implicit threats." But the threats were not accompanied with concrete action. The one-month delay is not enough for plaintiff, who, after all, is an inmate who must tolerate inconveniences that the rest of us do not have to tolerate. 

We also have an Eighth Amendment claim against defendant Dahlke, who, according to plaintiff, sexually abused him during a pat frisk. The district court said this was not enough for a constitutional claim, but the Court of Appeals disagrees, holding that while jails are allowed to conduct pat frisks to ensure security at the jail, "the routine nature of these pat frisks does not shield an officer from liability" if the officer abuses his authority to "gratify his sexual desire" or "humiliate" the inmate. While the trial court said in dismissing this claim that the officer did not penetrate plaintiff's body or fondle his genitals, plaintiff said the pat-frisk was unlike anything he had experienced in his 13-years in the prison system, and that it lasted five to eight minutes, longer than usual. The parties disagree about the invasive nature of this frisk, but such a "swearing match" is for the jury, not the court on a summary judgment motion.

This one goes to the inmates

The Court of Appeals issues this ruling to clarify one of the many issues left open when Congress passed the Prison Litigation Reform Act in the mid-1990s, intended to limit prisoner litigation by requiring them to file internal grievances with prison authorities before they can file suit in federal court. The Court says that while inmates must exhaust this administrative remedy, they do not have to wait for the jailers to take their sweet time in resolving the grievances before they can file suit.

The case is Hayes v. Dahlke, issued on October 5. Plaintiff says he was sexually molested during a pat frisk in jail. He grieved this offense under state regulations that require the internal grievance people to rule on the grievance within 18 days of their receipt of the grievance. If the jail denies the grievance, the inmate may file an internal appeal, which may ultimately land on the desk of the Central Office Review Committee (CORC), which has 30 days to issue a final ruling. What happens when the CORC does not issue a final ruling, making plaintiff wait? Can the inmate just file suit in federal court instead? 

The Second Circuit (Sullivan, Livingston and Nardini) notes this is an issue of first impression: "whether an inmate must wait for a response from prison officials to exhaust administrative remedies." The state regulations require that prison officials resolve the grievance appeal within 30 days. As the Court of Appeals notes, there are "no qualifications" to this requirement. While the state argues this deadline is only "aspirational" and not mandatory, the Second Circuit is not buying this argument. Nor was plaintiff required to file an Article 78 petition to compel the CORC to consider his appeal, and no cases support such a proposition. 

But here is the kicker for plaintiff. He did not actually file this case after the 30-day deadline had expired. He filed this case only 26 days after he filed the grievance appeal. Plaintiff did not actually exhaust the 30-day period. So the claim arising from that grievance is dismissed as a matter of law. So, while plaintiff loses the appeal on this issue, he wins this issue for other inmates who are made to wait interminably for the resolution of their grievances.

Plaintiff's new testimony about discriminatory motive cannot prevent summary judgment for the employer

The plaintiff says she was denied a promotion to Executive Director of the Nassau County Human Rights Commission because of her gender. Her evidence in support of this claim is two-fold: first, she testified in deposition that the Commission Chair, Syed, told her, "I want a man for the position." Plaintiff also says she was better qualified than the selectee. Despite this evidence, she lost the case on summary judgment, and she loses the appeal.

The case is Rodriguez v. County of Nassau, a summary order issued on October 8. How can plaintiff lose the case on summary judgment with Syed's admission that he wanted a man for the job? Here is what happened. In her first deposition in June 2017, plaintiff was asked if Syed said "anything about your gender?" Plaintiff did not testify that he said he wanted a man for the job. Instead, she testified, Syed did not acknowledge her in the past, implying that he was disrespectful to plaintiff because she is a woman. At her second deposition in January 2018, plaintiff testified that Syed told her he want a man for the position. Her affidavit for the summary judgment motion contains the same admission.

A line of cases in the Second Circuit over last last few years says that plaintiffs cannot avoid summary judgment with testimony that contradicts prior accounts during the case, such as during EEOC charges. The most recent published case on this issue is Bentley v. AutoZoners, LLC, 935 F.3d 76 (2d Cir. 2019). I have not seen yet seen a case where the plaintiff's testimony had this kind of discrepancy in the course of two separate depositions, but the Court of Appeals says that plaintiff had the chance to testify about Syed's admission during the first deposition but failed to do so, and that she offers no plausible reason why the second deposition produced this testimony, which under normal circumstances would send this case to a jury and deny the employer's motion for summary judgment motion.

The Court of Appeals (Walker, Leval and Bianco) notes that "we have repeatedly ruled that . . .  a plaintiff who, previously in the litigation, has denied an essential fact cannot resuscitate that fact in defending against summary judgment by giving new testimony that asserts the previously denied fact." The Court of Appeals applies that rule in this case. Since plaintiff has not offered any other testimony to support her claim that she was denied the promotion because of her gender, summary judgment is affirmed and the case is over. While plaintiff testified that she was better qualified than the man who was hired for the position, the Court says that testimony was speculative and not enough to show that plaintiff was denied the job because of her gender.

Second Circuit upholds Trump tax return subpoena

These are the most famous tax returns in history. The President doesn't want to release them, and the District Attorney wants them. Trump has been fighting this for over a year. Earlier this year, the Supreme Court said there is no "absolute" presidential immunity from compliance with a grand jury subpoena, but it allowed Trump to make additional arguments on remand against producing them. The Second Circuit has rejected those arguments, and assuming the Supreme Court does not intervene a second time, Trump will now have to turn them over.

The case is Trump v. Vance, issued on October 8. Some presidents are known for the landmark Supreme Court rulings that bear their name. In United States v. Nixon, the Supreme Court ruled in 1974 that Richard Milhous Nixon must turn over the tape recordings that he made in the Oval Office so the congressional committee investigating Watergate could see what Nixon said behind closed doors about the Watergate break-in. That ruling led to Nixon's resignation a few weeks later. In Clinton v. Jones, the Supreme Court ruled in 1997 that the President has no immunity from civil law litigation for acts done before taking office and unrelated to the office. That ruling forced William Jefferson Clinton to give sworn deposition testimony, during which he lied about Monica Lewinsky, resulting in Clinton's impeachment. You see where I am going with this. Who knows where the Trump tax returns case will lead us?

Trump says the subpoena is illegal because it is overbroad and it was issued in bad faith. These arguments can repel a grand jury subpoena if the objecting party has a legitimate basis to assert them. Not this case. The Court of Appeals (Leval, Lohier and Katzmann) notes that Trump challenges the subpoenas not through a motion in criminal court to quash but through a civil lawsuit in which he must satisfy the heightened pleading requirements the Supreme Court set forth in Ashcroft v. Iqbal (2009), requiring the plaintiff to advance non-conclusory and plausible allegations. "A bare allegation of improper motive will not suffice if there is an obvious alternative explanation for the conduct alleged," the Court of Appeals says, quoting from Iqbal. 

First, the Court says, the subpoena is not overbroad. Settled law tells us that a grand jury investigation is broad in scope "and may expand easily over time." Trump only speculates that the grand jury is only examining the Michael Cohen issues (you know what they are), and, in any event, "Grand juries routinely issue multiple subpoenas seeking different information from different recipients during the course of their investigations, because, after all, they have a duty to follow every available clue wherever it may lead."

What about the bad faith argument? That fails also. Trump does not plausibly argue that the subpoenas were issued out of malice or intent to harass. While Trump says the subpoenas were issued in retaliation for his refusal to produce tax returns in response to a prior subpoena, like the overbroad argument, this is speculative and therefore fails the plausibility test under Iqbal. Nor does Trump argue that the DA issued the subpoena out of partisanship. 

For now, the Second Circuit's order to produce the tax returns is stayed while the Trump legal team seeks relief in the Supreme Court, which is not required to hear the case.

No discretionary immunity in police shooting case, and a question about "special duty" under state law

This police misconduct action involved a no-knock warrant. The police entered a house looking for someone who had allegedly robbed drug dealers. When they got in the house early in the morning, they saw plaintiff Ferreira, who was an overnight guest. They shot plaintiff in the stomach, claiming he was a threat. As for the shooting, the jury entered a verdict for the officer, Miller, but also said the City of Binghamton was liable for its negligent failure to prepare for the raid, causing plaintiff's injuries. The jury found against the city on this claim, awarding plaintiff $3 million in damages. The trial court took away that verdict, and now the case has been handed off the New York Court of Appeals to decide a tricky state law question.

The case is Ferreira v. City of Binghamton, issued on September 23. When the case ended in the district court, plaintiff's claims were all lost, as the trial court (as noted) overturned the verdict against the city, holding that plaintiff did not show any "special relationship" between him and the city that would have allowed him to proceed against the city under state law. The trial court also said the city was not liable because it had discretionary authority to plan for the botched raid.

On the discretionary immunity argument, the Court of Appeals (Leval, Pooler and Livingston) summarizes the law in this area: this immunity only applies when a public employee is negligent in performing a discretionary as opposed to a ministerial act (which would involve a governing ruling with a compulsory result). That's a fine distinction that allows public employees to do their jobs without fear of a lawsuit. There is no discretionary immunity when a police officer violates acceptable police practice. Under this legal rule, 

The actions of City police officers in planning the raid were discretionary (and not ministerial) in nature because they involved the exercise of judgment, not “direct adherence to a governing rule or standard with a compulsory result. The doctrine of discretionary immunity therefore protects the City unless its officers’ actions “violat[ed] [the City’s] own internal rules and policies,”or “acceptable police practice.”

Under this principle, the jury had a basis to render a verdict against the city on the negligence claim, and the city cannot invoke discretionary immunity. The trial court was wrong to conclude otherwise. The Court of Appeals says "the jury could have reasonably concluded 16 that the City was not only negligent but further violated acceptable police practice by failing to conduct adequate pre-raid surveillance and failing to seek to obtain a floor plan of the residence." Police practice in the city dictated that the police obtain a floor plan to ensure they do not needlessly expose members of the public to any harm. That negligent failure led to plaintiff's injury. Also, the police did not properly surveil their intended target to ensure that he was even in the house at the time of the raid. The failure to properly conduct surveillance left the police unaware of who, if anyone, would be in the house at the time of the raid. 

But there is more. In New York, there is no municipal liability unless the police violate a "special duty" between the police and the victim. To show a special duty,

a plaintiff must show “(1) an assumption by the municipality, through promises or actions, of an affirmative duty to act on behalf of the party who was injured; (2) knowledge on the part of the municipality’s agents that inaction could lead to harm; (3) some form of direct contact between the municipality’s agents and the injured party; and (4) that party’s justifiable reliance on the municipality’s affirmative undertaking.”

The problem is that state law is not clear on this issue when the harm is committed by governmental actors. The classic special duty case arises when the plaintiff is injured by someone else and the government does not intervene. The Second Circuit, after reviewing the state law cases in this area, says that the mid-level appellate rulings on this issue are all over the place, and that "Applying the special duty requirement to cases of government-inflicted injury would appear to extend the rule far beyond its underlying rationale, as articulated by the Court of Appeals, which recognized the need for some limitation because 'the government is not an insurer against harm suffered by its citizenry at the hands of third parties.'” In cases like this, the Second Circuit will send this issue over to the State Court of Appeals to issue a definitive ruling on a state law issue. When that happens, the Second Circuit will take on this case against and resolve the case under the new State Court of Appeals ruling.

For appellate buffs only (and police misconduct buffs also)

This is a huge case that took more than 18 months to decide, and it addresses a number of important issues relating to police misconduct litigation, but for now I will address a procedural issue that only an appellate practitioner can love, though trial lawyers should take note, because it reminds us that trial, and not the Court of Appeals, is usually where the action is.

The case is Ferreira v. City of Binghamton, issued on September. The plaintiff was an unarmed man who was shot in the stomach by the police when they entered the house on a no-knock warrant. (The police were actually looking for someone else, and plaintiff happened to be in the house when the raid took place). The jury rendered a verdict against the City, but it also found in the officer's favor, ruling he was not liable. That verdict threads the needle in ways that most clients will probably never understand, I am sure. But for now, we will talk about the verdict against the officer, Miller. At trial, Miller and plaintiff gave different accounts of what happened when the police entered the house upon getting a tip that the person they were looking for in the house had robbed some drug dealers. Miller said plaintiff approached him, ignoring police commands to get down, and he thought plaintiff had a gun. Plaintiff testified that he raised his arms above his head and the police shot him anyway.

The jury credited Miller's testimony on this part of the claim. But it found for plaintiff on his claim against the City, awarding him $3 million. Post-trial, plaintiff moved for a new trial, claiming the verdict in Miller's favor was against the weight of the evidence. These motions are very difficult to win; we let the juries decide what happened at trial, and trial judges really don't want a second trial on the same issue. As the Court of Appeals summarized the trial court's reasoning in denying the motion:

the court reasoned that Miller entered the residence with reason to believe he would encounter a dangerous person, and the jury could have reasonably accepted Miller’s testimony that he believed as he entered that he was in fact menaced by an armed and dangerous person. The SWAT team had been informed, based on the tip from the informant, that Pride may have had a weapon. A jury could reasonably credit Miller’s testimony that he saw Ferreira advancing on him with a device in his hand that appeared to be a gun, and discredit Ferreira’s testimony to the contrary. Although Miller’s belief that he had encountered a dangerous person appears to have been mistaken, the court ruled that, given the dangerous circumstances, the mistake and resultant shooting do not “indicate that he violated the standard 4 of care in a manner in which no reasonable juror could fail to assign him liability.” The court further concluded that even if Miller was negligent, discretionary immunity would protect him from liability because his actions did not violate acceptable police practice and were therefore protected by 8 discretionary immunity.

Plaintiff appeals from that ruling, but the Court of Appeals (Leval, Livingston and Pooler) holds that the Court has no jurisdiction to even hear the appeal. "The denial of a new trial on the ground that the verdict was not against the weight of the evidence is not subject to appellate review." Case authority for that proposition is Stonewall Ins. Co. v. Asbestos Claims Mgt. Corp., 73 F.3d 1178 (2d Cir. 1995). While you can appeal if the trial judge rejects a jury's verdict as against the weight of the evidence, you cannot do so "in the far more frequent circumstance where a trial judge denies a 'weight of the evidence' challenge and leaves in place a jury verdict supported by legally sufficient evidence." While plaintiff tried to get around this by arguing that the verdict was a "miscarriage of justice," that is another way of saying the verdict was against the weight of the evidence. On issues like this, the place to win the case is trial, not the Court of Appeals.

Disparate impact claim under Title VII fails in divided ruling

We don't see a lot of disparate impact cases these days. The Supreme Court recognized the disparate impact theory in racial and other discrimination cases under Title VII back in 1971, holding that facially-neutral employment practices can violate Title VII if they produce a disparate impact against blacks, women, etc., and the employer cannot articulate a good reason for the disparate impact. In this case, the Court of Appeals decides for the first time how disparate impact cases should be pled at the outset of the case.

The case is Mandala v. NTT Data, Inc., issued on September 21. Plaintiffs are black men whose offers of employment were revoked because the employer learned they had criminal records. Plaintiffs argue this violates Title VII because national statistics shows that African Americans have higher arrest and incarceration rates than whites. The district court dismissed the complaint (prior to discovery) and the Court of Appeals agrees the plaintiffs have not sufficiently pled their case.

Along the way, the Court of Appeals (Sullivan and Nardini) sets for the legal standard guiding disparate impact cases under the Iqbal pleading standard that the Supreme Court devised in 2009, which requires that plaintiffs assert a "plausible" claim for relief, putting to rest the "notice pleading" that had been in effect since 1957. While the Second Circuit has held that pleading requirements for disparate treatment cases under Iqbal only require the plaintiff to set forth "enough facts to provide at least minimal support for the proposition that the employer was motivated by discriminatory intent" (Vega v. Hempstead School Dist., 801 F.3d 72, 86-87 (2d Cir. 2015))," that is not the standard for disparate impact claims. The requirement for disparate impact claims is the plaintiff "must at least set forth enough factual allegations to plausible support each of the basic elements of a disparate impact claim." The Circuit cites Adams v. City of Indianapolis, 742 F.3d 720 (7th Cir. 2014), for this proposition, which is now Second Circuit law.

What this means for this case is that plaintiffs have not properly pled a disparate impact case. While national statistics may show that African Americans have a disproportionate incarceration rate, "the statistical analysis must, at the very least, focus on the disparity between appropriate comparator groups." In other words, "the statistical analysis must reveal disparities between populations that are relevant to the claim the plaintiff seeks to prove." The complaint fails because "Plaintiffs provide no allegations to demonstrate that national arrest or incarceration statistics are in any way representative of the pool of potential applicants qualified for a position at NTT. All Plaintiffs offer is the conclusory and unsupported assertion that these figures are so stark that they must hold true for this (or any) segment of the population. But that is not a plausible -- or, for that matter, logical -- inference."

Judge Chin dissents. I try not to get political here, but this case shows the ideological divide that is now taking shape at the Second Circuit. The majority judges in this case are Trump appointees. Judge Chin was appointed by Obama. In addition to objecting to the heightened pleading standard that the majority adopted for disparate impact claims, he writes:

As the statistics show, there are significant racial disparities in arrest, conviction, and incarceration rates in this country.  As scholars and the EEOC have recognized, criminal history screens can have a substantial adverse disparate impact based on race,  and, as discussed above, a number of courts have denied motions to dismiss disparate impact claims using general  population statistics to challenge such policies, concluding that plaintiffs had plausibly stated a disparate impact claim under Title VII.  Some states, including New York, recognize the harm that blanket criminal history screens can cause, forbidding companies from denying employment solely because a job applicant has a criminal record, and instead requiring employers to engage in an individualized consideration.  If the facts alleged in the complaint are true, then Mandala and Barnett are vivid examples of the adverse impact an absolute convictions bar can have on individuals generally -- and African Americans in particular -- seeking employment.