Inmates have due process rights, too

When the jail charges the inmate with misconduct, and the charges may lead to solitary confinement or some other punishment, the jail has to follow due process to ensure the inmates receive a fair hearing. But a fair hearing is not like the hearings we see outside the prison context, i.e., in public employment. I cannot recall the last time an inmate won an appeal like this in the Second Circuit, but the Court of Appeals holds the plaintiff was denied due process. 

The case is Vidal v. Venettozzi, issued on April 1. The inmate was incarcerated at Green Haven Correctional Facility. The jail charged him with punching a correctional officer in a dispute over when he could bring his legal materials into the A-Block. The jail said that plaintiff then punched a second correction officer who came to assist the first officer. But even if plaintiff is an inmate, the Supreme Court says he is still entitled to defend himself at the disciplinary hearing. 

This hearing lasted nine days. Under the rules, the jail has to assign someone to help the inmate gather witnesses for the hearing. This is a security measure. The inmate cannot just walk through the jail obtaining witness statements and commitments from other inmates to testify. Plaintiff claims he was not permitted to get and introduce certain documentary evidence, including the A-Block logbook. While the assigned evidence-gatherer, Carroll, did not obtain any witness statements, he told plaintiff these witnesses had agreed to testify. Following the hearing, he was found guilty to sentenced to 270 of confinement in the special housing unit, what we call SHU, where he has limited free movement or access to recreation, daily showers, use of the telephone, exercise equipment, social activities., regular visits without restrictions, access to the law library, and other benefits or access to programs at the jail. Plaintiff ultimately served 258 days in SHU. There is an assumption that the plaintiff did not receive a fair hearing, so the question is whether the due process clause required that the jail provide him one. The issue is whether plaintiff had a liberty interest in avoiding solitary confinement.

 

Inmates have a liberty interest under the due process clause to be free from disciplinary segregation without due process. But that right only kicks in if the inmate is subjected to an "atypical and significant hardship" at the jail, a legal standard devised by the Supreme Court in Sandin v. Conner (1995). One prior case holds that 305 days for disciplinary SHU qualifies as an aytpical and significant hardship, but that lesser amounts for administrative confinement may also qualify. The Court of Appeals holds that "the duration of Vidal's disciplinary segregation alone was an aytpical and significant hardship in relation to the ordinary incidents of prison life and thus implicates a protected liberty interest." Other cases hold that lengthy solitary confinement can cause significant psychological hardship, even physical hardship. The Court of Appeals (Robinson and Merriam) rules that plaintiff was entitled to due process. The case returns to the district court to determine if the individual defendant can invoke qualified immunity. 

Speculation will not get you a trial in a discrimination case

This plaintiff asserts she was denied commissions while working at a car dealership because she was pregnant. The argument was that her manager was delaying her commissions because she lost access to a computer program that allowed her to quickly process credit checks for prospective customers, forcing her to rely on her sales manager to process the checks on her behalf, but he intentionally delayed doing so, costing her customers.

The case is Stidhum v. 161-10 Hillside Auto, a summary order issued on March 18. The Court of Appeals holds that plaintiff does not have a discrimination case. While the trial court held that plaintiff did not actually sustain an adverse action even under the Supreme Court's recent case, Muldrow v. City of St. Louis, which relaxed the adverse action standards under Title VII, the Court of Appeals sustains summary judgment against her on different grounds: plaintiff cannot prove she was treated any differently than her male coworkers.

The Second Circuit (Calabresi, Nathan and Vargas [D.J.]) reiterates that one way to prove discrimination is by comparing your adverse treatment to the male workers. If they enjoyed favorable treatment, then you can win the case on the basis that you were singled out because of sex. But the record shows that the manager with access to the credit check software took vacation and no one else at the dealership had the password. This meant that plaintiff "was placed in the same position as every other salesperson at the dealership." Everyone suffered a delay in recovering their commissions. Plaintiff tries to get around this by arguing that the male salespeople sold more cars at this time, which can only mean they must have experienced shorter wait times for their credit checks. This may be true, but you need evidence to prove it. That's what summary judgment motions are all about: what evidence do you have that can justify a verdict at trial? Plaintiff could only speculate that "their customers were taken or tended to a little more promptly." That kind of speculation will not be enough in opposing a summary judgment motion.

Plaintiff argued that since the dealership destroyed the weekly sales records, thus preventing her from proving her case, that kind of spoliation argument will not work here because the records were destroyed prior to plaintiff's filing this lawsuit. There was therefore no bad faith in destroying the records. Had plaintiff been able to prove such bad faith, she might have gotten an "adverse inference" in her favor on this point.

Some guidance on authenticating medical records at trial

What we learn from this case is that evidentiary rulings at trial are difficult to challenge on appeal. The standard of appellate review is “abuse of discretion,” which is deferential to the trial court. While you can get a new trial based on the district court’s evidentiary rulings, that is more true in theory than in practice. Few parties win a new trial based on an objectionable evidentiary ruling.

The case is Penzo v. Consolidated Edison of New York, a summary order issue on April 2. This disability discrimination case went to trial in the Southern District of New York. The plaintiff prevailed at trial, as the jury found she was terminated from her position in retaliation for engaging in protected activity under the New York City Human Rights Law. The jury awarded approximately $200,000 in damages for lost wages, but no damages for pain and suffering. The argument on appeal was that the trial court erred in disallowing plaintiff from introducing her medical records that would have proved she sustained damages for pain and suffering resulting from the retaliation.

The trial court declined to admit the medical records because they were not authenticated. The trial judge has to ensure the medical records are true and accurate, that is, they are authentic. Otherwise, the records are inadmissible hearsay. The way to do that is to have the doctor or someone affiliated with the medical practice testify at trial that the records are authentic. Or you can get a written certification that the records are real. But, as the Court of Appeals states, “Penzo did neither of those things.”

Plaintiff argues on appeal that, as the patient, she can authenticate the medical records: that she could have laid the necessary foundation for the documents, and/or the trial court should accepted her belated certifications that the documents were authentic. But the Court of Appeals (Kearse, Lee and Komitee [D.J.]) disagrees. Parties cannot authenticate their own medical records. Trial courts have said as such, and the Court of Appeals – which I guess has never squarely ruled this way – cites those district court cases to support its holding in this case. We don’t see too many district court cases cited in appellate rulings, but the Second Circuit will do so when it thinks the rulings make sense and there is nothing at the appellate level to that effect. The district court rulings are logical to the Court of Appeals because “authentic medical records are not created by the patients themselves, nor do they maintain them.” Plaintiffs are not in a position to tell the jury that the records are real.

What about the second argument: that the plaintiff belatedly but nonetheless offered a written certification that the records are authentic? The Court of Appeals says the trial court did not abuse its discretion in rejecting the late certifications. “[A] district court is not required to permit a plaintiff to present evidence in clear violation of the Rules of Evidence. And the relevant evidentiary rule clearly requires that certifications must be provided to the opposing trial ‘before the trial." Since plaintiff “did not submit her certifications until trial was well underway . . . the district court did not abuse its discretion by declining  to accept those certifications and excluding the evidence in question.”

Plaintiffs cannot sue Sean Combs anonymously

These plaintiffs sued Sean "Puffy" Combs, the famous hip-hop artist, claiming various acts of sexual abuse dating to 1991-1997. These claims were facilitated by a recent law in New York that reopened the statutes of limitation for otherwise stale sex abuse claims. But this appeal does not determine whether Combs is liable. Rather, it addresses whether plaintiffs may litigate their claims under pseudonyms, i.e., Jane Doe. They cannot.

The case is Doe v. Combs, a summary order issued on March 17. The district court said the plaintiffs have to litigate these cases under their real names, not Jane Doe aliases. The Court of Appeals (Park, Nardini and Kahn) affirms. The federal rules assume that plaintiffs must use their real names, but there are exceptions for John Doe pseudonyms if the plaintiffs can meet certain criterion, including whether the cases involve highly sensitive subject matter, whether identifying themselves poses a risk of retaliation to that party or to innocent non-parties, whether the defendant will suffer any prejudice from anonymity, etc. The Court of Appeals articulates a 10-part test, making this inquiry unpredictable.

While plaintiffs raise claims involving a highly sensitive and personal nature, they cannot prove any risk of harm in using their real names, such as possible retaliation, and they cannot show any mental harm if they cannot proceed as Jane Does. Instead, they assert threats of retaliation made to other litigants, but not themselves, and while one plaintiff said that Combs threatened her with violence when he assaulted her, that was more than three decades ago, the Court notes, and she does not identify any present threat of physical harm. Do you see how hard it is to proceed under a pseudonym?

Another reason the plaintiffs lose this appeal is that if they proceed anonymously, Combs would be highly prejudiced "because of likely asymmetries in fact-gathering." Courts have held that "concealing the name of a party could deprive a litigant and the court of the chance that a yet unknown witness would . . . upon learning of the case, know to step forward with valuable information about the events or the credibility of witnesses." The loss of such witnesses would be particularly prejudicial in this case because the events of this case took place more than 30 years ago, and the case would "be difficult to defend even with information about Plaintiffs' identities." In other words, while the defendants in this case do know who the plaintiffs are, the public does not, and the public might have evidence relevant to the case. 

Inmate wins sexual abuse appeal against correction officer

The plaintiff in this case alleges that, while he was a pre-trial detainee in the Connecticut system, a correction officer sexually assaulted him. Plaintiff sues under the Fourteenth Amendment. The trial court said that, assuming the plaintiff's allegations are true, the defendant officer cannot invoke qualified immunity, that is, avoid litigation because he did not violate clearly-established law. The officer appeals from that ruling and the Court of Appeals affirms, sending this case to trial to resolve disputed factual issues.

The case is Russell v. Scott, issued on March 19. While plaintiff says the officer grabbed his genitals under the false pretense of searching for contraband, the officer says this never happened. In order to decide this case, the Second Circuit (Bianco, Perez and Merriam) summarizes the rules guiding these cases. Since plaintiff was not yet convicted of anything and was still a pre-trial detainee, he enjoys more rights than the convicts. His case arises under the Fourteenth Amendment -- which protects pretrial detainees -- and not the Eight Amendment -- which regulates treatment of inmates who were sentenced for committing crimes.

Under the Fourteenth Amendment, the inmate cannot be punished in any manner. As this case is comparable to an excessive force claim, the Second Circuit considers when the inmate was punished without any legitimate penological reason, even if that punishment was not the cruel and unusual punishment prohibited under the Eighth Amendment. One of the leading cases in this area -- protecting the rights of pretrial detainees -- is Darnell v. Piniero, 849 F.3d 17 (2d Cir. 2017), a case I briefed 10 years ago.

The lengthy discussion in this case on how to analyze plaintiff's claim involving sexual abuse under the Fourteenth Amendment will make this the leading case on this issue. The result is that if the jury believes the plaintiff's version of events, he can win the case under the Fourteenth Amendment. The jury can find there was no reason for defendant to grab plaintiff by the genitals, invading his privacy and bodily integrity and causing pain that lasted for quite some time. 

That brings us to qualified immunity. Even if the court says that plaintiff's rights may have been violated in this case, that does not mean it was apparent that the officer was violating the Constitution. Was it clearly-established, through case law, that the officer was violating the Fourteenth Amendment? It is not enough to say that plaintiff has the right to be free from unjustified punishment. The qualified immunity inquiry requires the court to frame the issue more narrowly, taking into account the context of the case.

Not only was it clearly established at the time of this case that the Fourteenth Amendment forbids objectively unreasonable treatment of pretrial detainees, but cases have already held that sexual contact with inmates -- without any penological purpose but instead to gratify the officer's desire or to humiliate the inmate-- violates the Eighth Amendment. Cases also hold that plaintiffs suing under the Fourteenth Amendment can win the case even without showing the officer was acting to gratify himself or to humiliate the inmate. This means that, if the jury finds he grabbed plaintiff in this manner, the officer in this case was on notice that he was violating the Fourteenth Amendment. This case will thus proceed to trial to resolve the disputed issue of whether the defendant grabbed plaintiff this way. 

Clean up the olive oil spill in aisle 3 before someone brings a lawsuit!

This case is a routine slip-and-fall claim against Wal-Mart Stores, where someone slipped on milk (or something in the milk aisle) and sued the store because it was on constructive notice that a dangerous condition could have led to a customer's injury. The district court threw out the case, but the Court of Appeals brings it back, and it will proceed to trial unless the parties settle.

The case is Marquez v. Was-Mart Stores, Inc., a summary order issued on March 17. Not all hazardous conditions at the supermarket will subject the store to liability. The plaintiff has to show the condition was in place long enough for the store to be aware of it, or that store employees should have known about it, such that the failure to timely fix the problem was the foreseeable result of someone's injury.

Anyone who ever worked in a supermarket will tell you that slippery and other dangerous conditions are commonplace. The store has a duty to clean up the spill quickly, lest someone slip and fall and file a lawsuit. I am sure the supermarket managers are trained by a risk-management expert who advises that there are lawsuits to be had when no one feels like cleaning up the mayonnaise or olive oil spill and employees instead walk right past it -- or even over it -- pretending not to see it because it's too much of a hassle to get the mop from the back room to wipe up the spill and, besides, my break starts in 15 minutes and I don't have time for it and someone else will take care of it and they don't pay me enough to do this anyway.

In this case, what the Court of Appeals (Livingston, Sack and Lohier) calls "the liquid on the milk aisle floor" -- could have been milk or yogurt or pudding or anything slippery -- was visible long enough for the jury to find against the store. Cases hold that "as little as five minutes can be sufficient for a defendant to discover and remedy a hazard, depending on the circumstances." Here, video evidence -- those cameras are all over the place at the supermarket, just look up at the ceiling -- shows customers looking at the spill and gesturing to other customers to stay away from it, and "a young girl may be seen sliding in the vicinity of the liquid." This allows the jury to find the liquid was on the floor long enough for workers to clean it up pronto. It will all be up to the jury.

Circuit Court certifies sex-abuse issue to the New York State Court of Appeals

The Me-Too movement led to new laws allowing sex abuse victims to sue their abusers long after the statute of limitations had expired. In New York, the Legislature passed the Child Victims Act. But years earlier, in New York City, the City Council had already enacted the Victims of Gender-Motivated Violence Prevention Act (VGMVPA). But the laws might conflict with each other, creating different time-frames to open up old cases. What do we do about this?

The case is Parker v. Alexander, issued on March 23. In 2000, New York City enacted the VGMVPA, which allows sex abuse/violence victims to sue their abusers within a seven-year statute of limitations. Under the state law (CVA) enacted in 2019, a one-year revival period was established, allowing minors to revive stale claims within that limited window. A year later, the Legislature extended that time period by another year. As the Court of Appeals puts it, "the CVA's revival period thus covers a period that is substantially earlier than the period of revival for claims under the VGMVPL." In 2022, since the COVID pandemic reduced in-person services and prevented victims from filing their lawsuits, the New York City Council amended that law to provide an additional two years to bring their lawsuits.

What it means is that the City law is more generous than the State law for reviving old claims. That distinction affects this case, in which a woman sues the Alexander brothers for alleged sex abuse under the City law but would be unable to do so under the State law. The defendants argue that the State law preempts the City law, as the State is superior to the City when it comes to setting the rules and statutes of limitations. If the defendants are right, then the City law, at least as to this case, is a nullity. 

The Second Circuit (Lohier, Cabranes and Jacobs) notes that both sides have powerful arguments for and against their positions. Both sets of laws regulate slightly different conduct. The First Department said in 2021 that the statute of limitations under the City law was not preempted by State law because the City law focuses on gender-motivated violence, and the State law focuses on a narrower class of cases: certain sexual offenses.

The problem is the New York appellate courts have not yet resolved this dispute. Since this puzzle raises state law issues, the Second Circuit will not definitively resolve such untested issues without giving its New York State counterpart, the Court of Appeals, an opportunity to weigh in on this matter through an advisory opinion that will then inform the Second Circuit's ruling in this case. So the Second Circuit has certified this case to the New York Court of Appeals for that purpose. If the State Court of Appeals decides to take on this issue (and it probably will), it will have separate briefing and oral argument and then issue a ruling, probably sometime in 2027. At that point, its federal counterpart will return to this case.