Tuesday, February 4, 2025

Inmate excessive force case provides guidance on how to resolve a motion to dismiss

You'd be surprised how often inmates win their appeals on constitutional claims against their jailers. The cases get dismissed in the district court, and then the Court of Appeals revives them and finds the plaintiff's allegations are enough to proceed to discovery or even trial. Here is another one. What makes this case notable is that the Court of Appeals clarifies when defendants can rely on outside records in support of a motion to dismiss the plaintiff's complaint. This ruling is good for plaintiffs.

The case is Pearson v. Gesner, issued on January 13, almost a year after oral argument. Plaintiff was locked up at the Orange County Jail on a parole violation. His complaint asserts that CO's beat him up in his cell, played with his food, sprayed chemicals in his eye (causing pain and impaired vision), and denied him medical care. The district court dismissed the Amended Complaint on a motion to dismiss, in part because the misbehavior report drafted by one of the CO defendants said that plaintiff had disobeyed orders, thus justifying the use of force. 

Here's the problem. It was not proper for the trial court to consider the misbehavior report in reviewing whether the Amended Complaint stated a claim. Sometimes, the district court can rely on outside documents on a motion to dismiss if they are integral to the complaint, such as if plaintiff is bringing a breach of contract claim, and the complaint makes reference to that contract but the contract itself is not attached to the complaint. The leading case on this issue is Chambers v. Time Warner, Inc., 282 F.3d 147 (2d Cir. 2001). But this rule has a number of quirks. The plaintiff might rely on parts of a document drafted by defendant but not all of the document's contents. "Rather than accepting as true every word in a unilateral writing by as defendant and attached by a plaintiff to a complaint, the court must consider why a plaintiff attached the documents." The Second Circuit (Kearse, Robinson and Park) cites a Seventh Circuit ruling for this proposition (along with a Fourth Circuit ruling) which means this is the first time the Second Circuit is saying this.

Put another way, "[t]reating the contents of such a document as true simply because it was attached to or relied upon in the complaint, even though the plaintiff relied on it for purposes other than truthfulness, would . . . enable parties to hide behind untested, self-serving assertions." Again, this is from the Fourth Circuit case, so the Second Circuit is really driving this home for the first time.

What it means in this case is that the district court improperly adopted as true many of the allegations in the misbehavior report in dismissing the case and finding that the CO's had reason to use force against plaintiff. The case returns to the district court for further review.

Thursday, January 30, 2025

Inmate may have a claim for deliberate indifference to medical needs

In this case, the Court of Appeals has to decide if the inmate-plaintiff timely filed his constitutional claim alleging that prison doctors failed to properly treat his prostate cancer. A divided court says that, for now, it looks like plaintiff may have filed this case in time. That may change once the parties start discovery, for the lawsuit alleges facts that plausibly suggest plaintiff did not wait too long to bring suit.

The case is Mallet v. New York State Dept. of Corrections, issued on January 13. While in jail, plaintiff began to feel discomfort and experience urinary problems. A urologist examined him and confirmed that plaintiff was in fact experiencing prostate problems, but he did not think it was cancerous or perform a biopsy. Instead, the urologist gave him a prescription for pills that would help with urinary dysfunction. After plaintiff left prison, he was diagnosed with prostate cancer after his bloodwork showed a high PSA count. 

Here is the problem, plaintiff sued within three years of the cancer diagnosis, but the initial medical work, which showed urinary problems but without any diagnosis took place more than three years before plaintiff filed suit. The statute of limitations for these cases is three years. If the prison-medical work was enough to put him on notice that he had cancer, then the case is not timely. If the clock began running after plaintiff left jail and got the formal cancer diagnosis, then the case is timely. For the court, the question is when the clock began running.

Judge Calabresi writes for the majority and says, on the face of the lawsuit, using Iqbal plausibility standard, we can say plaintiff might have a case. He writes:

Taken together, then, Mallet’s deliberate indifference claim could not have accrued until he either knew or had reason to know both (1) that he suffered from an objectively serious medical condition while he was incarcerated and (2) that Defendants-Appellees  failed  to  provide  adequate  treatment  because  they consciously disregarded a substantial risk to his health and safety. Put differently, Mallet could not have brought his deliberate indifference claim before he knew or should have known these facts because he would not yet have had a complete and present cause of action.
During his incarceration, the majority writes, plaintiff could have reasonably assumed he was enduring uncomfortable and annoying urinary problems but not cancerous conditions. Since he did not learn that until after he was released from prison, and he filed the lawsuit within three years of learning he had cancer, the case is timely,

The factual analysis is drawn from the Complaint, not a summary judgment record. Discovery will focus on whether the facts in the Complaint are accurate. The state will try to show that plaintiff knew about or suspected prostate cancer while he was in jail. So, while plaintiff generates a good ruling for statute of limitations purposes in deliberate indifference cases, the case is far from over.

Monday, January 27, 2025

The rules are different in habeas corpus cases

In this habeas corpus case, the State of New York did not raise a defense in opposing the habeas petition. Normally, that's a waiver, and the courts will not consider waived arguments. But in habeas proceedings, the rules are different. While the inmate won his habeas petition in the trial court, the Court of Appeals takes it away.

The case is Whitehead v. LaManna, a summary order issued on December 30. Whitehead was convicted of drug-related crimes. After the convictions were affirmed on appeal, Whitehead filed a petition for habeas corpus, arguing that his trial counsel was ineffective in not filing a motion to dismiss the indictment. The argument that trial counsel could have raised related to the fact that some of the crimes took place in Orange County, not Albany County, where he was indicted and convicted. Whitehead's appellate counsel did not raise that argument either, so appellate counsel was also named in the habeas petition as an ineffective lawyer.

Here is what happened next: in opposing the habeas petition, the State of New York did not raise a particular defense: that since some of the crimes were committed in Albany County, crimes committed in an outside county (such as Orange County) may be included in the conspiracy indictment. Without the benefit of that argument, the federal court in Albany granted Whitehead's habeas petition. The State then filed a motion for reconsideration, asserting that defense for the first time. The federal judge said this argument was waived, and Whitehead sustained his victory.

Off to the Court of Appeals, which reinstates the conviction and discards the habeas win. Under the habeas rules, which require the courts to defer to the state courts in how they handle criminal prosecutions, the federal court is supposed to consider arguments that might sustain the criminal conviction, including hypothetical arguments, even if they were waived by the government in opposing the habeas petition. The Court of Appeals (Bianco, Lee and Menashi) says:

in its effort to search for any hypothetical argument that might support the Appellate Division’s rejection of Whitehead’s venue argument and related ineffective assistance claim, as required under Lynch, the district court apparently did not identify or consider on its own that venue on the substantive counts was proper due to the conspiracy charge and thus Whitehead suffered no prejudice by his appellate counsel’s failure to raise the venue issue.
The hypothetical argument that might have sustained the conviction in the face of Whitehead's habeas challenge may have been waived, but under the habeas rules, the trial court was still required to consider it. This rule does not apply in other cases, but it does in cases like this. The Court of Appeals says the federal court abused its discretion in not considering the State's belated argument, and that this argument is actually meritorious on the basis that the deficiency in the indictment did not prejudice Whitehead, and the case was properly venued in Albany County, after all.

Thursday, January 23, 2025

EDNY judge adjusts hourly rates for prevailing parties

 A judge in the Eastern District of New York has increased the top rate for attorneys' fees in cases, typically civil rights matters, where the losing party is statutorily required to pay the plaintiff's lawyers who won the case. The top rate was $450 per hour. Now it's $650 for partners.

The case is Rubin v. HSBC Bank, issued on January 21 (scroll down that link for the PDF). This is a Fair Credit Reporting Act case involving alleged credit card fraud. After the parties settled the case, they litigated the attorneys' fees. Judge Block uses this case to examine the case law guiding attorneys' fees and asks hard questions about how the EDNY has settled on the rates that have been in place since 2012, when partners got $300-$450/hour. 

Judge Block wonders why this rate has stayed the same ever since, despite years of inflation. (While he does not discuss this, the Second Circuit has held that EDNY rates may be lower than SDNY rates even though both districts include New York City and sit right next to each other). And he wonders how courts are expected to apply the Second Circuit's framework for resolving attorneys' fees; that framework asks what a hypothetical, reasonable paying client would pay to win the case. The Second Circuit developed that test in Arbor Hill v. County of Albany, 522 F.3d 182 (2d Cir. 2008). He notes further that EDNY judges "have been making reasonability determinations for decades out of whole cloth," and that this ad hoc approach is usually based on indeterminate factors, such as inflation. In addition, the hourly rates are usually identical no matter what case the parties are litigating, be it an employment discrimination or intellectual property case.

After reciting a poem about "the pitfalls of following the calf's path," and admitting that he has recently followed the calf's path himself in setting hourly rates (despite reading this poem to his law clerks each year), Judge Block says the top hourly rate in the EDNY for at least the next five years should be $450-$650 for partners, $300-$450 for senior associates, $150-$300 for junior associates, and $100-$150 for paralegals, more in line with Southern District rates.

Wednesday, January 22, 2025

Fair housing verdict based on renters' income is affirmed.

This case went to trial on the plaintiff's claim that a private property management company was discriminating against renters based on disability and income. The Fair Housing Act prohibits discrimination on the basis of a renter's disability. The City Human Rights Law bars housing discrimination on the basis of income. The trial judge ruled in plaintiff's favor. The defendant appeals to the Second Circuit, which affirms. The plaintiffs emerge victorious.

The case is Fair Housing Justice Center v. Pelican Management, Inc., a summary order issued on January 21. 

FHJC asserted that in 2015 [Defendant] Goldfarb adopted a minimum income policy for prospective renters, requiring, among other things, that all prospective renters earn a gross annual income of at least 43 times their total monthly rent (the “2015 Policy”).  FHJC claimed that the 2015 Policy excluded virtually all renters who received certain rental subsidies, a large percentage of whom have disabilities.


The policy was amended in 2019. Under that revision,

with respect to applicants with no rental subsidy, the criteria under the 2019 Policy that prospective renters earn an annual income of at least 43 times their total monthly rent remained the same as before. Second, as to applicants with a full subsidy (i.e., 100 percent of the rent is paid by a government program), the 2019 Policy eliminated all income-related requirements.  Finally, with respect to applicants with a partial subsidy (i.e., a portion, but not all, of the rent is paid by a government program), the 2019 Policy, among other things, required that prospective renters earn 40 times their share of the monthly rent, rather than 43 times the full rent.
The NYCHRL prohibits housing discrimination “because of any lawful source of income.” A disparate impact claim can be brought under the NYCHRL when “a facially neutral policy or practice has a disparate impact on a protected group.”

The trial court ruled both policies were illegal. They had a disparate impact based on disability and source of income. Defendant appeals from the 2019 ruling, which held, based on the analysis from plaintiff's expert witness, that the rules had an unlawful disparate impact on applicants with partial subsidies on the basis of their source of income. The Court of Appeals (Carney, Bianco and Nardini) affirms. After holding that plaintiff's expert used a sound methodology in reaching his conclusions, the Second Circuit holds that the factual record supports the district court's ruling on the merits.

Thursday, January 16, 2025

Supreme Court clarifies how management can prove that plaintiff-employees are not entitled to overtime

The Supreme Court is starting to issue rulings for the 2024-2025 term. Cases that were argued in the fall are now being resolved. This one concerns how to interpret the Fair Labor Standards Act. The Court makes it easier for employers to prove that the plaintiff is exempt from overtime.

The case is EMD Sales v. Carrera, issued on January 15. The FLSA guarantees that employees will earn at least the minimum wage. Most employees will also recover overtime pay if they work more than 40 hours per week. Notice I said "most." That's because the FLSA has a zillion exceptions to this rule, depending on the nature of the employee's job. Management workers don't get overtime. Certain professionals don't get overtime. In this case, plaintiffs were sales representatives working for a company that distributes dog food. Plaintiffs sued for unpaid overtime. The trial court said plaintiffs are entitled to overtime because the employer did not prove by clear and convincing evidence that plaintiffs were exempt from the overtime rules (management said plaintiffs were exempt under the outside-salesman exemption. 

The issue for the Supreme Court: is "clear and convincing" the appropriate test, or is it "preponderance of the evidence," a lower burden of proof, which simply means "more likely than not." In contrast, "clear and convincing" is not the same as "proof beyond a reasonable doubt" (the government's burden of proof in criminal cases) but it's somewhere in between 51% more likely and near-certainty.

The Supreme Court has never addressed this issue before. The Fourth Circuit is the only federal appellate court to use the "clear and convincing" test. The rest use the more lenient "preponderance" test, including the Second Circuit. Since the FLSA does not tell us management's  burden of proof, the Court looks to the common-law. While some constitutional cases require a heightened burden of proof in civil cases, such as defamation cases involving public figures and some other "uncommon" cases, such as when the government wants to revoke someone's citizenship, most civil cases use the preponderance test, so the fallback is that test. While the plaintiffs want the Court to employ "clear and convincing" because these cases implicate the public interest, and the employer controls much of the evidence in these cases, these justifications are not enough to deviate from the fallback test, as the preponderance test also applies in Title VII discrimination cases. Title VII and FLSA principles are usually interchangeable.

The case now returns to the district court, for the judge to revisit the issue of plaintiffs' entitlement to overtime under the preponderance burden of proof.

Wednesday, January 15, 2025

It's hard to win involuntary mental health confinement cases

You can sue the government if it places you in a psychiatric facility against your will, but you have to show the government did not have good reason to do this. That makes these cases hard to win, and the plaintiff in this case loses even if he can prove that one officer lied about the reason for his confinement.

The case is Accardi v. County of Suffolk, a summary order issued on January 14. Plaintiff was hospitalized involuntarily for five days in a psychiatric facility after a series of domestic incidents. Here is the legal framework, from the Mental Health Law:

Under New York law, police officers “may take into custody any person who appears to be mentally ill and is conducting himself or herself in a manner which is likely to result in serious harm to the person or others.” 

Officers may also “direct the removal  of such person or remove him or her to . . . any comprehensive psychiatric emergency program . . . Similarly, officers may take an individual “who appears to be incapacitated by alcohol and/or substances to the degree that there is a likelihood to result in harm to the person or to others . . . to a treatment facility for purposes of receiving emergency services.”
Plaintiff says the County violated the Due Process Clause of the U.S. Constitution (which recognizes such claims) because its officers deliberately misrepresented the facts that influenced the probable cause determination that allowed them to take him to the facility. While plaintiff argued that Defendant Manfredonia told healthcare providers that he had barricaded himself in his home and did not surrender until they completed a four hour negotiation, any such misrepresentation does not matter. Why? Because, the Second Circuit holds, the medical records show plaintiff would have been taken to the facility against his will in any event. The Court of Appeals (Calabresi, Park and Nathan) states

Evidence from Accardi’s medical records confirms that healthcare providers would have decided to involuntarily commit Accardi even without Manfredonia’s alleged statements about a “barricade.” For example, Dr. Narayan wrote that Accardi “has multiple risk factors for completing suicide and homicide, and requires inpatient admission at this time.”  Dr. Narayan also categorized Accardi’s illness as “severe.” Dr. Bonvino noted that Accardi “initially told nursing staff his last drink was about 8 weeks although utox is positive for alcohol”; that Accardi himself reported “he had an argument with his wife, was throwing things, and made the comment that if she left the house he’d kill himself”; and that Accardi was not compliant with his antidepressant medication.

See how hard it is to win cases like this? I think courts will give law enforcement the benefit of the doubt, and the law, through qualified immunity, actually provides a legal framework for that deference, though the Court of Appeals does not reference such immunity in this ruling.