No speech retaliation claim where prison doctor criticized medication policy

First Amendment retaliation litigation has never been the same ever since the Supreme Court held in 2006 that it's not protected speech if the government worker speaks out pursuant to his official job duties. That was the Garcetti case. It was believed at the time, at least by some of us, that the lower courts might interpret Garcetti narrowly and hold only that "mandated" speech is unprotected but that otherwise speech that relates to your employee remains free speech for which you cannot be punished. That wistful hope is long behind us, and the courts now hold that speech that is part and parcel of your ability to perform your job is unprotected and management has the right to discipline you for it. This case shows us how it works.

The case is Salvana v. DOCCS, a summary order issued in February 5. Plaintiff was a doctor in the state prison system who claims he suffered retaliation after speaking out against the medication abuse policy that requires doctors to get permission from higher-level officials before they prescribe addictive or unsafe medications. So plaintiff did speak up. But was it protected speech that insulates him from discipline? It is not, the Court of Appeals (Jacobs, Leval and Sullivan) says.

Plaintiff spoke as an employee (unprotected) and not as a citizen (protected) because, while he claims it was not his job to criticize DOCCS policy, the Garcetti inquiry extends beyond that narrow issue-framing. Plaintiff loses because his "core duty" was to ensure the "high quality of medical care": for his patients. His criticism of the medication policy furthers that goal, as he discussed the policy's effect on the medical needs of specific individuals, focused narrowly on exempting only his own unit from its requirements; he said he knows what's best for his patients. 

Under this angle, plaintiff's speech was part and parcel of his ability to perform his core job duties. He did not raise abstract objections to system-wide, broad policy issues, which might bring his case within the First Amendment's protections. Instead, the Court of Appeals holds, "he attacked the policy primarily on the ground that it was interfering with his ability to care for his patients as he saw fit in the unit that he supervised."   

Excessive force verdict is gone

This qualified immunity case shows us what happens when the case is unique and the jury rules in your favor but the court determines later on that the case was sufficiently esoteric that the police officers who committed the constitutional violation were not on constructive notice that a judge later on would find they did anything illegal.

The case is Matusak v. Daminski, issued on January 29. This case went to trial in the Western District of New York. The jury awarded plaintiff $200,000 in damages. But that was not the end of the case. Defendants raised a qualified immunity argument, which led the trial court to ask the jury, in writing, to particularize what it believed took place when the defendants struck plaintiff. Those answers doomed the verdict.

Plaintiff was arrested following a foot pursuit, which ended after the officer directed plaintiff, without success, to stop resisting arrest. According to the jury, the police reasonably believed that plaintiff had posed a threat to officer safety when defendant Murphy struck him to effectuate the arrest. As for the second arresting officer, Unterborn, the jury also found he reasonably believed that plaintiff posed a threat to officer safety when he used excessive force. The trial court asked the jury to answer special interrogatories to gain further jury insight into the facts so that the court could then resolve the qualified immunity question, which is a matter of law. The trial judge threw out the verdict on qualified immunity grounds: that no clearly established case law barred the use of significant force by an officer against an arrestee who is resisting arrest and is reasonably believed to pose a threat to officer safety.

The jury does not know this, and few clients really understand this, but the verdict is not the final words on the case. There will usually be an appeal or at least post-trial motions to vacate the verdict. And making matters even more complicated, the verdict may be undercut by the trial judge's finding that the verdict was not appropriate under qualified immunity, which says the only public defendants (like police officers) who can lose at trial are those who violate clearly established and particularized case law. 

The Court of Appeals (Wesley, Livingston and Wolford [D.J.]), affirms the trial court's order dismissing the verdict, and the verdict is gone for good. The problem for plaintiff is that while courts have said the police cannot use excessive force in arresting someone who is compliant or not resisting arrest, the law was not clear as to the facts in this case: where a suspect, after fleeing the police, was resisting the officers' attempts to place him in handcuffs and the officers reasonably though he posed a threat to officer safety. After all, the chase brought everyone into a dark wooded area and when the officers arrived there, plaintiff still had not been handcuffed, and his hands were hidden beneath his body. 

Plaintiff argued that qualified immunity cannot attach because he was only passively and not actively resisting arrest. But, the Court says, that does not save the verdict. "Passive resistance" is another fuzzy concept under the Fourth Amendment. The Court holds there was no clearly established law that an individual resisting arrest and under circumstances like those in this case was merely passively resisting.   

Supreme Court once again rejects heightened pleading in federal court

The Supreme Court does not often issue stand-alone rulings on pleading requirements in federal court, a curious track record since every lawsuit was once filed in the clerk's office and many are then met with a notion to dismiss for failure to state a claim. This ruling examines when state law pleading requirements apply in federal court. The answer is that they do not. The plaintiff in this case was not mandated to include a doctor's affidavit in support of his medial malpractice claim.

The case is Berk v. Choy, issued on January 20. This case was filed in Delaware, alleging medical malpractice. In Delaware, you have to include a medical affidavit to prove the claim is brought in good faith. New York has the same requirement, perhaps the product of the medical establishment's lobbying efforts to prevent us from filing meritless lawsuits. But since the defendant found a way to remove this case to federal court, the district judge dismissed the case for lack of a doctor's affidavit. Was this a legitimate ruling? 

The Supreme Court says there is no such affidavit requirement under the federal rules. The states can do what they want, but don't impose these rules in federal court. Under the Federal Rules of Civil Procedure, you only have to file "a short and plain statement of the clam showing that [the plaintiff] is entitled to relief." That's Rule 8(a)(2). And, under Rule 12(b)(6), in determining whether the plaintiff has asserted a. claim, you normally cannot review matters outside the pleadings (in the way you would on a motion for summary judgment, post-discovery). 

The unanimous Court notes that it has frequently rejected efforts by lower federal courts to require more information than required under Rule 8, such as heightened pleading requirements in civil rights cases and prisoner suits. Affidavits of merit, such as the one that plaintiff did not supply in this case, is among those documents outside the pleadings that are not required in federal court. 

Of course, recall the Iqbal ruling from 2009, when the Supreme Court said lawsuits have to plead a plausible claim under the federal rules. Rules 8 and 12 say nothing about plausibility, but the Court read that language into federal practice. I suppose that reasoning is different from the logic in this case. Plausibility pleading is a debate for another day. For now, if you are pleading state law claims and the case somehow winds up in a federal courtroom, this case is for you. 

2d Department holds operating room abuse is not an "adverse employment action"

The Appellate Division Second Department has issued its first decision interpreting the Supreme Court's ruling in Muldrow v. City of St. Louis, which two years ago relaxed the standard for "adverse actions" in employment discrimination cases. In this ruling, the Court finds that a doctor who physically abused and verbally assaulted a nurse during an operating room procedure did not subject the plaintiff to an adverse action under Section 1983.

The case is Chamale-Eustace v. SUNY Stony Brook, issued in January 21. I briefed and argued the appeal. In Muldrow, 601 U.S. 346 (2024), the Supreme Court rejected the rule that adverse actions must materially alter the terms and conditions of the plaintiff's employment. Instead, the Supreme Court said, the plaintiff need only prove the defendant subjected her to "some harm respecting an identifiable term or condition of employment." The harm need not be significant or even material, but the adverse action “must have left [the plaintiff] worse off.” Put another way, the plaintiff must show the employer's actions “brought about some ‘disadvantageous’ change in an employment term or condition.” This language draws from Muldrow.

In this case, the plaintiff alleged as follows:

On or about August 14, 2021, the plaintiff, a female surgical technologist employed by the defendants State University of New York at Stony Brook, Stony Brook University Hospital, and Stony Brook Medicine, assisted in a surgery performed by the defendant Matthew Berchuck, a surgeon employed by the Stony Brook defendants. 

The plaintiff alleged that during the surgery, Berchuck, inter alia, struck the plaintiff in the arm with a closed fist while holding a surgical instrument, threw surgical instruments and needles at her, and screamed and cursed at her. In addition, the plaintiff alleged that Berchuck belittled other female staff members who were assisting in the surgical procedure, but he did not treat male staff members in a similar manner. Further, the plaintiff alleged that the Stony Brook defendants were aware of and failed to address similar incidents of misconduct by Berchuck in the past. 

The Appellate Division rules that, as asserted in the complaint, these allegations do not establish an adverse employment action. In support of this holding, the Second Department cited inter alia Franco v. City of New York, 2025 WL 964014 (E.D.N.Y. 2025), which held that the plaintiff's allegations in that case -- repeated acts of sexual assault -- sounded more like a hostile work environment than disparate treatment and therefore Muldrow did not apply. The other citations in support of this holding predate Muldrow and applied the now-rejected "materiality" test.

Another holding is that the defendant cannot be sued as an "aider and abettor" under the New York Executive Law because a defendant cannot aid and abet his own discrimination. The law on this issue is all over the place in New York. In Tomka v. Seiler, Corp., 66 F.3d 1295 (2d Cir. 1995), the Second Circuit said a defendant may be held liable for aiding and abetting allegedly unlawful discrimination by the employer even where the defendant's actions are the predicate for the employer's vicarious liability. But the Appellate Division has gone back and forth on this issue. 

Despite ruling against Chamale-Eustace on this point, the Second Department cited Elco v. Aguiar, 226 A.D.3d 649, 651 (2d Dept. 2024), which held that defendant Freeborn "failed to establish that the plaintiff did not have a cause of action against him under the NYSHRL pursuant to an aiding and abetting theory of liability." The Court added, "contrary to Freeborn's contention, the plaintiff sufficiently alleged that Freeborn had aided, abetted, and incited this alleged harassment" as "the harassing conduct by her superiors was instigated by Freeborn sending her harassing text messages and contacting her superiors both about her personal relationships and to make false accusations regarding custody issues and her work performance. The plaintiff sufficiently alleged that, without Freeborn's conduct, there is no indication that her superiors would have subjected her to inferior terms of employment." 

Can Chamale-Eustace be reconciled with Aguiar? I suppose the argument might be that, in Aguiar, others were also harassing the plaintiff, and in Chamale-Eustace, the individual defendant was the sole harassing party, although she argued that management was responsible for this conduct. 

 

The rare Circuit Court ruling that takes the case out of mandatory arbitration

Plaintiffs will do what they have to do to avoid arbitration. While arbitration is a legal proceeding that will resolve the case one way or the other, plaintiffs (and their lawyers) will tell you until they are blue in the face that the courthouse is far more preferable, as a sympathetic jury is a better fact-finder than a stuffy arbitrator, the damages in court will often be higher than in arbitration, court proceedings are public (unlike arbitration) and usually allow for more discovery, arbitrators are not required to always follow the law, no appeals are available from arbitration, and the employer usually pays the arbitrator for their time, which never happens in court. Hence, cases like this.

The case is Silva v. Schmidt Baking Distribution, issued on December 22. Plaintiffs delivered baked goods on defendant's behalf in Connecticut. But defendant then asked plaintiffs to incorporate their business and sign distribution agreements that contained an arbitration clause stating that any disputes, such as wage-and-hour matters, be resolved in arbitration. The clause also prohibits class action lawsuits. 

Under the Federal Arbitration Act, "contracts of employment" for transportation workers are not subject to arbitration. This is among the few areas that are statutorily exempt from mandatory arbitration. The Supreme Court has held that contracts creating independent contractor relationships fall within the "transportation exception." The Second Circuit (Chin, Nardini and Kahn) holds that the agreement in this case is a contract of employment under the FAA even though they were signed by the two plaintiffs in their capacities as presidents of their respective corporations, rather than in their individual capacities. The Court of Appeals finds that even contracts between two business entities may constitute contracts for employment. 

We have contracts for employment in this case because "the actual work performed by workers under business-to-business contracts may be functionally indistinguishable from the work done in employment relationships." Moreover, the contracts in this case hold the individual plaintiffs personally responsible for the performance of their work, and the plaintiffs had been W-2 employees when defendant told them to create corporations to continue their work as delivery drivers. And once that happened, the work that plaintiffs performed was no different from what they had done before they signed the contracts. Simply put, we are dealing with contracts of employment under the FAA. That brings this case out of arbitration under the transportation exception. This case will be decided in court.

A side note for appellate practitioners. Normally, court orders that the parties proceed to arbitration are not appealable by the plaintiffs unless they can fit their case within the narrow exception to the rule that interlocutory appeals are disfavored in the federal system. This case falls within that exception because the case involves a legal issue with substantial grounds for differences of opinion, and the appeal will materially advance the ultimate termination of the litigation and spare the parties of wasting time through a full arbitration that might have been improper in the first instance. There is no point in waiting for the outcome of that arbitration if the federal appeals court can resolve this issue right now., 

When can the police enter the house without a warrant?

The Fourth Amendment requires the police to get a warrant if they want to search your home or anyplace else within your control. But the Supreme Court has long interpreted the Fourth Amendment to permit warrantless searches in emergency situations. We can talk about this broad exception to the Constitution's plain language and what it means for a constitutional democracy, but this exception is so widely accepted that we don't really debate it any longer, and the issue is now how the warrantless search applies in particular cases. Like this one, in which the Supreme Court finds the search was legal.

The case is Case v. Montana, issued on January 14, one of the first full rulings of the 2025-2026 Term. The police entered the house after getting an alarming phone call from Case's ex-girlfriend, JH, indicating that an erratic Case was going to kill himself. While on the phone with Case, JH heard the gun go off and then dead air, suggesting that Case was dead. JH called the police. 

The police showed up at Case's house; they knew he had mental health issues and alcohol problems and once tried suicide-by-cop. They tried to communicate with Case from outside the house, to no avail. So they entered the house without a warrant, deeming this an emergency. They found Case in the closet, and a shootout followed, injuring Case, who survived. He was charged with assaulting a police officer, but he moved to suppress all evidence obtained from the warrantless search, claiming it violated the Fourth Amendment.

The question is here is the standard of review in determining whether warrantless home searches violate the Fourth Amendment. Some courts, including the Second Circuit, hold that the police need probable cause to enter for purposes of rendering emergency services. Other courts hold the police to a reasonable suspicion standard, which is less burdensome than the probable cause test. 

The Court unanimously holds that the real standard is reasonable suspicion. The probable cause test only applies to criminal investigations, not cases like this, says Justice Kagan. Under the reasonable suspicion test, the search was legal. The officers had an objectively reasonable basis for believing that they had to enter the house to prevent serious harm, i.e., Case's erratic behavior that might result in someone's death or serious injury, including himself. 

Gun dealer has standing to challenge City's "brick and mortar" requirement

This gun rights case involves a New York City law that makes it illegal to purchase more than one gun every 90 days. Another City law under review requires applicants for firearms dealer licenses to maintain a place of business in New York City, what we call a "brick and mortar" location. One challenge succeeds and the other one fails.

The case is Knight v. City of New York, issued on January 13. Plaintiff is a gun dealer in New York City. He challenges the 90-day gun requirement under the Second Amendment, but the Second Circuit says he lacks standing to challenge the law. Standing is a constitutional doctrine that requires proof that you have a personal stake in the outcome of the case; a generalized grievance is not enough. This ensures that the courts resolve actual "cases and controversies," and not hypothetical disputes. You'll find "cases and controversies" in the Constitution itself.

Plaintiff argues that the 90-day rule impacts him personally because he will not sell guns to people who need to obtain a new one that frequently. As a gun dealer, he stands to lose money under this rule. But, the Court of Appeals (Chin, Sullivan and Kahn) says, plaintiff has not identified any New York City customer would buy more than one gun every 90 days. He therefore has no standing to bring this part of the case, as his legal challenge to this rule is academic. Someone else will have to bring such a lawsuit, maybe a gun owner who needs to buy a firearm more frequently than once every 90 days. 

The place-of-business requirement is a different story. Since plaintiff wants to run a commercial gun dealing business in New York City and has taken active steps to make that happen, and because the commercial availability of firearms is related to the Second Amendment, under the City law, he cannot obtain a dealer's license without facing possible criminal prosecution. All of this confers standing upon plaintiff's Second Amendment challenge to the City's gun-control law. The case will return to the trial court to address his legal challenge on the merits: whether the brick-and-mortar requirement is consistent with the Constitutional and the complex legal standards guiding Second Amendment litigation in light of the Supreme Court's Bruen ruling from a few years ago, which asks whether the gun-control law is consistent with the original understanding of the Second Amendment.