Federal officials can ignore a state court order

This is an unusual case. Plaintiff alleges that while in custody in federal jail in Otisville, N.Y., he was suing Pennsylvania state officials for excessive force in the course of his arrest that landed him in Otisville. A state court judge in Pennsylvania ordered that Otisville officials transport him to a hearing in Pennsylvania so he could pursue his claim. The Otisville people did not comply with the transport order and plaintiff had to participate in the hearing by phone, not in person. Plaintiff sues the Otisville people for the constitutional (due process) violation of denying him the right to appear in person for his hearing; he claims the failure to comply with the state directive cause his excessive force case to be dismissed.

The case is Dixon v. Von Blanckensee, issued on April 12. Plaintiff loses the case on qualified immunity grounds because he does not plead a federal violation. The Supremacy Clause of the Constitution voids a mandatory state court order upon a federal official. States have no power to control the operations of federal officials, including the Bureau of Prisons. 

Plaintiff tries to get around the Supremacy Clause rule by arguing he was denied access to the courts. But that claim fails. You have a right to meaningful access to the courts, emphasis on meaningful. To win a case like this, plaintiff has to show the deprivation "hindered his efforts to pursue a legal claim. The Second Circuit (Lynch, Bianco and Halpern [D.J.]) notes that plaintiff has abandoned any claim that defendant prevented him from participating in the state court hearing. Rather, he was able particulate in the hearing remotely, and his rights were not prejudiced as a result of the remote proceeding. And any claim that defendant caused his case to be dismissed is too conclusory to survive a motion to dismiss.  

NYS bar examiners cannot be sued for violating federal disability discrimination laws

Plaintiff sues the people who run the New York State bar examination, claiming they failed to accommodate her disabilities (depression, anxiety and complications from a head injury) by disallowing her extra time on the test, stop-clock breaks and separate testing facilities. Her inability to pass the bar examination cost her a legal position, though she eventually passed the exam. But her claim runs into a major roadblock: in order to sue under the federal disability discrimination laws, plaintiff has to show the bar examination apparatus receives federal funding. 

The case is TW v. New York State Board of Law Examiners, issued on April 28. The district court allowed the case to proceed, reasoning that while the Board itself had not received any federal funding, it was a "program or activity" of a "department, agency, or instrumentality," that is, the Unified Court System that had received federal funding. The Court of Appeals (Livingston, Bianco and Failla [D.J.]) disagrees, and the case is dismissed.

The problem with the district court's reasoning is that its analysis was too broad. The question is not whether the New York court system receives federal funding. Instead, we ask whether this particular entity receives federal money. During the relevant time period, certain entities in the Unified Court System did get federal money, including drug treatment courts, domestic violence courts, family courts, and veterans treatment courts. This case involves complicated issues of when a state entity waives its immunity from suit under the Eleventh Amendment. 

While the Board, at best, is an indirect recipient of federal money, that does not allow people to sue a state entity for federal civil rights violations. The more complicated issue is whether the Board is an operation of a department, agency or other instrumentality that receives federal money. While plaintiff argues that the Unified Court System is the relevant entity for purposes of this analysis that is too broad an inquiry. The proper question is whether the board that administers the bar examination receives federal money. While the Board is part of the Unified Court System, it is not an operation of the trial courts, which means it is not a "program or activity" of the courts listed above that do receive federal money. As the Board falls outside that equation, it cannot be sued in federal court for disability discrimination.  

Important case for pleading willfulness under the Fair Labor Standards Act

If you handle wage and hour claims under the Fair Labor Standards Act, then you know this, but for everyone else, the statute of limitations in FLSA claims is two years for unpaid wages and lost overtime pay. But that two-year deadline is extended to three years if the FLSA violation is willful. My guess is that most FLSA plaintiffs believe the failure to pay wages is almost always willful, and that the three-year SOL applies. That may be true, but the question in this case is how do you plead willfulness? The Court of Appeals, in a split decision, rules against the plaintiff, holding he did not plausibly plead willfulness.

The case is Whiteside v. Hover-Davis, Inc., issued on April 27. Plaintiff was a Quality Engineer for a company that manufactured automation assembly equipment; that was a salaried position. He eventually took on the duties of a Repair Technician. The employee who had previously held the Repair Technician position was classified as non-exempt, which meant he was getting overtime pay. But when plaintiff took on that position, he was still classified as exempt from the FLSA's overtime requirements and still treated as a salaried employee; no overtime for plaintiff. Plaintiff alleges the failure to pay him overtime wages was willful and that the three-year SOL applied. He needs that three-year SOL to maintain the lawsuit, since he filed the case after the two-year SOL had expired. In order to keep the case moving, plaintiff has to convince the Court of Appeals that he has properly plead willfulness.

The Court of Appeals notes that some Circuits allow the plaintiff to allege willfulness by merely alleging it in the complaint. Other Circuits want you to provide more detail. The Second Circuit (Livingston and Englemayer [D.J.]) says the plaintiff must provide detail, consistent with the plausibility pleading requirements under Iqbal and Twombly, which changed the rules on federal pleading over ten years ago. Conclusory allegations will not cut it under Twickbal. The Court notes that when Congress enacted the FLSA, it intended to draw a "significant distinction between ordinary violations and willful violations" of the statute. It is not enough to show that "an employer knew that the FLSA was in the picture" to prove willfulness. Instead, the plaintiff must show "the employer knew or showed reckless disregard for the matter of whether its conduct was prohibited by statute." Cases further hold that plaintiffs must plead the elements of certain exceptions to the statute of limitations. 

Bottom line: "the mere allegation of willfulness is insufficient to allow an FLSA plaintiff to obtain the benefit of the three-year exception at the pleadings stage. Rather, the plaintiff must allege facts that permit a plausible inference that the defendant willfully violated the FLSA for that exception to apply."

Under this new pleading rule, plaintiff loses because the Court will not infer willfulness "from the mere fact that he was asked for a period of time to perform job responsibilities typically performed by non-exempt employees even though he was classified as exempt." The Court goes on to reason:

Whiteside does not allege that Defendants adjusted his salary to reflect that of a non-exempt employee. Nor, as the district court noted, does he allege that he ever complained about the situation to his managers. Similarly, Whiteside fails to allege any details about who asked him to change roles or whether that manager, or any other manager, said anything to him suggesting an awareness of impropriety—details that would have plainly been within his knowledge and that he could have included in any of his four complaints. Cf. Parada v. Banco Indus. De Venezuela, C.A., 753 F.3d 62, 71 (2d Cir. 2014) (finding that summary judgment was proper as to the question of willfulness under the FLSA because the plaintiff "failed to adduce any evidence regarding how the misclassification occurred"). Indeed, Whiteside fails to allege that his managers acted in any manner suggesting an awareness that their actions violated or could violate the FLSA.

Instead, the complaint only suggests that defendant had negligently failed to reclassify plaintiff as a non-exempt employee who would have been entitled to overtime pay. 

Judge Chin dissents, stating that plaintiff plausibly alleges willfulness because the complaint states that 

Defendants classified Repair Organization Technicians as non-exempt employees eligible for overtime pay. Whiteside was scheduled to work 45 hours per week and often worked beyond his scheduled hours. And yet, he did not receive overtime pay. He alleges that defendants' failure to pay him overtime was willful because "[d]efendants, with reckless disregard as to whether their conduct was prohibited under statute, failed to pay the statutorily required overtime rate for the hours" he worked in excess of 40 hours per week.

Justice Thomas wants the Supreme Court to revisit the Feres doctrine

In 2020, the Second Circuit held a student could not sue West Point over her rape, which she alleged resulted from West Point's deficient policies which did not protect her from sexual assault. The case was dismissed because the Feres doctrine says you cannot sue the military for civil violations. The plaintiff filed a petition for certiorari with the Supreme Court, which has declined to review the case. The news here is that Justice Thomas wants to narrow the Feres doctrine to allow this case to proceed. But the Supreme Court will not do so, and Thomas is the only Justice who suggests the Court revisit Feres. 

The case is Doe v. United States, certiorari denied on May 3. Thomas thinks Feres goes too far. Thomas notes that "70 years ago, this Court made the policy judgment that members of the military should not be able to sue for injuries incident to military service." That was Feres v. United States, 340 U.S. 135 (1950). Plaintiff could have brought this case under the Federal Tort Claims Act if she were a civilian contractor at West Point. But since she was a cadet, she rules into the Feres doctrine, which prohibits claims like this.

While the Federal Tort Claims act does not allow you to sue for claims "arising out of ... combat activities ... during time of war," it has been interpreted quite broadly, Thomas notes, to even cover non-war-related claims. So, Thomas explains, if two Pentagon employees, one a civilian and the other a service member, are hit by a bus in the Pentagon parking lot, the civilian can sue but the service member cannot. There are cases that so hold.

Thomas wants the Court to take up this case to clarify the scope of the Feres immunity. How exactly is a student's rape "an injury incident to military service?" The Feres doctrine has been expanded so much over the years that even a rape case like this is barred. While Thomas suggests the Court does not want to "fiddle" with a 70-year-old precedent, it should do so, he argues, just as it has done with other unworkable doctrines over the years. 

Pro se inmate wins excessive force appeal against correction officer

The Court of Appeals has reinstated an excessive force claim brought by a pro se inmate who claims that a correction officer broke his finger while trying to restrain him at the jail. 

The case is Bradshaw v. City of New York, a summary order issued on March 29. Excessive force claims usually involve divergent testimony from plaintiff and defendant about what happened leading up to the use of force, as well as the amount of force used. That's why these cases are sometimes not suitable for summary judgment and a jury must decide who is telling the truth, even if it has to weigh credibility between an inmate and a law enforcement officer. 

Plaintiff sues two officers here. The first officer, Loesch, cannot be liable, the Court of Appeals (Katzmann, Lynch and Nardini) says, because there is no dispute that plaintiff refused to interlace his fingers behind his head when Loesch ordered him to do so, "and the split-second decision to bring Bradshaw to the ground and subdue him to eliminate the security risk that the officers believed he posed was not excessive." 

What about plaintiff's clam that the Loesch punched him in the face when plaintiff was on the ground? As the Court notes, plaintiff's sworn testimony "sharply conflicts with that of the officer defendants." That evidentiary dispute often places such a claim before the jury. Not this one. While a single witness's testimony can be enough to force a jury trial on liability, see e.g. Holtz v. Rockefeller, 258 F.3d 62, 78 (2d Cir. 2001), that argument will not work if video evidence conclusively proves what happened. The case for that is Scott v. Harris, 550 U.S. 372, 380 (2007). The video evidence dooms plaintiff's claim, as it proves that Loesch did not punch him. Medical records also do not show bruising on the part of plaintiff's face where he claims the officer punched him.

But plaintiff wins the appeal against defendant Tebbens. Plaintiff says Tebbins broke his finger. The medical evidence actually proves there was no broken finger, but plaintiff did  testify that this officer threatened to break his finger and then twisted and bent it painfully. That gratuitous use of force can give rise to an excessive force claim. While there is video of this incident. the footage does not conclusively prove what happened one way or the other. This means the jury must decide what happens. Bradshaw will get his excessive force trial against Tebbins.

The jury found excessive force, but no punitive damages

In this case, the plaintiff went to trial against various police officers, claiming false arrest and excessive force. The trial lasted 11 days. The jury returned a verdict in favor of all the police officers except for one, Liberatore. But the jury also awarded plaintiff zero dollars for pain and suffering. And while the jury determined that Liberatore was liable for punitive damages, the jury awarded plaintiff zero damages in punitive damages. Plaintiff does get one dollar in nominal damages. The verdict was therefore an appeal waiting to happen. But the Court of Appeals affirms and plaintiff gets zero.

The case is Warr v. Liberatore, a summary order issued on March 29. Plaintiff's best argument is that the jury issued an inconsistent verdict in finding that defendant was liable to him for punitive damages, but that defendant does not have to pay any punitive damages. I have never seen such a verdict. Why would the jury find plaintiff has prevailed on a punitive damages claim but then award him nothing in punitives? So we got a good issue on appeal.

Appeals challenging inconsistent verdicts require the Court of Appeals to try to reconcile the verdicts. If any such reconciliation exists, then the appeal will fail. The Second Circuit (Bianco, Parker and Lynch) says the jury instructions said the defendant could be liable for punitives if he maliciously or wantonly used excessive force against plaintiff. The instructions also said that punitive damages are discretionary with the jury, which means the jury does not have to issue them. These are standard jury instructions in police misconduct cases. 

The Court does not see this as a complicated issue. It rules against plaintiff, reasoning as follows:

the jury could have found that Liberatore acted wantonly or maliciously in using excessive force but, under the particular circumstances of this case, that the finding of liability against Liberatore itself was sufficient punishment and deterrence. Moreover, viewing the verdict sheet as a whole, we find nothing in the general verdict or answers to special interrogatories that is inconsistent with the award amount or that would belie the jury’s clear written indication that it meant to award plaintiffs zero dollars in punitive damages."

Highway stop for impaired driving gives rise to false arrest claim

The police pulled over this woman while she was driving on the New York Thruway and given a series of field sobriety tests. The officer determined that plaintiff failed some of the tests, and he brought her into the police station and charged her with driving while ability impaired by drugs. Turns out, plaintiff had not taken any drugs, and the charges were dropped. The false arrest case was dismissed on summary judgment, but plaintiff wins the appeal and the Court of Appeals reinstates the case.

The case is Gatling v. West, a summary order issued on April 6. False arrest cases are difficult because even if the plaintiff was actually not guilty of anything, the police can still show probable cause and have the case dismissed if he reasonably thought the plaintiff was guilty of something. In this case, the officer said plaintiff exhibited impaired speech and impaired motor coordination and though something was wrong with her balance. He also testified that she failed the walk-and-turn test, the one-leg-stand test, and the finger-count test. Plaintiff said she had passed those tests and there was nothing wrong with her that day.

My instinct was that plaintiff would lose this case because officers can show probable cause through their reasonable belief that the plaintiff did something wrong and, and courts often give the police the benefit of the doubt in he-said she-said case. The defendant in the case says the plaintiff's testimony that she did nothing wrong and had passed the sobriety tests was self-serving and subjective. But the Court of Appeals (Bianco, Parker and Lynch) says plaintiff can win the case at trial. The Court reasons:

A jury could rationally credit Gatling’s testimony and conclude that she could determine whether she passed those tests based only on hearing Trooper West’s instructions, especially with tests as basic as standing on one leg and finger-counting. As to Trooper West’s testimony regarding his belief that she passed only two of the tests, upon which the district court relied, we recognize that probable cause may exist even if it is based on mistaken information, as long as the officer acted in reasonable reliance upon that information. See Bernard v. United States, 25 F.3d 98, 102 (2d Cir. 1994). 

However, if Gatling performed the tests exactly as instructed by Trooper West, a rational jury could find that he fabricated her negative test results or, at a minimum, any belief that she failed was not reasonable. Moreover, Gatling notes that, at his deposition, Trooper West was unable to explain which “clues” or factors led him to conclude that she had failed three of the tests, and no such explanation exists in his paperwork. Therefore, viewing the record as a whole, a jury is not required to credit Trooper West’s testimony that he believed that she failed three tests, nor is it required to find that any such belief was reasonable.

Plaintiff also wins the appeal for other reasons. While the officer said she had glassy eyes, he did not note that problem on the DWI Bill of Particulars, so the jury may find this was a post-hoc accusation against plaintiff. While the officer said plaintiff was driving erratically, 

although there was a 911 call regarding erratic driving by a car meeting the general description of Gatling’s Impala (i.e., the color and model), Trooper West’s observations as he followed the car did not corroborate the 911 call; to the contrary, he testified that he followed Gatling’s car for one-half mile and witnessed no erratic driving whatsoever. Moreover, Trooper West’s observation that Gatling was travelling too close to the car in front of her in that she was twenty-five to thirty-five feet behind the car travelling at a rate of fifty to fifty-five m.p.h. – even if true – hardly provides probable cause for charging the driver with driving while impaired by drugs.

The false arrest case therefore goes to trial. Plaintiff's racial discrimination claim, however, will not go to trial. She argued that the officer pulled her over and lied about her sobriety because of her race. But the Court of Appeals, while recognizing that a racial discrimination could proceed under 42 U.S.C. 1981 with the right facts, says the facts are not present here and that plaintiff cannot simply allege racial discrimination "from thin air." Without additional evidence, arresting someone without probable cause does not demonstrate racial animus. She does allege that the Trooper, while driving her to the police station, was playing music in the police car that referred to women in a derogatory manner. But that is not an allegation of racial discrimination, the Court says, and this evidence alone will not prove racial discrimination.

Shooting at fleeing suspect constitutes a seizure under the Fourth Amendment

The Supreme Court has ruled that the Fourth Amendment protection against unreasonable seizures applies when the police fire their guns at a fleeing vehicle. 

The case is Torres v. Madrid, issued on March 25. The case began when the police tried to execute an arrest warrant against Torres, who took off at a high rate of speed because she thought he police were carjackers. The police shot her car 13 times, striking her twice. She sued the police for excessive force.

This may seem a simple issue, but it's not. Chief Justice Roberts votes with the liberal majority, making this a 5-3 case (Justice Barrett not participating). Roberts notes that prior Supreme Court cases hold that a "seizure" arises when the police use force with intent to restrain someone. Under the common-law in place when the Fourth Amendment was drafted, a seizure does not have to result in the actual control or detention of the suspect. Old cases also hold that "the slightest touch was an arrest in point of law." And, of course, arrests are "seizures." The majority digs into old cases from England in summarizing this area of the law.

The Court holds there is no reason to draw "an artificial line between grasping with a hand and other means of applying physical force to effect an arrest." The majority rejects the dissenting argument that arrests are limited to cases when the police lay their hands on the suspect. While there were firearms at the time the Constitution was drafted, law enforcement did not carry them until the late 1800's. So there are no cases holding that shooting at a fleeing suspect constitutes a Fourth Amendment seizure. This case is the first from the Supreme Court, which emphasizes that while not every touch from a police officer constitutes a seizure, it will be a seizure when the police do so with intent to restrain. 

Employer's prior concerns about a plaintiff's job performance can undermine the inference of retaliation

A well-known principle guiding retaliation claims under the anti-discrimination laws goes something like this: if the employer has been thinking of terminating the plaintiff even before the plaintiff engages in protected activity, and the employer then fires the employee shortly after he engages in that protected activity, there is no prima facie case of retaliation because the plaintiff was on the way out the door anyway. That principle kills off this case.

The case is Perez v. City of New York, issued on April 15. The principal Second Circuit case on the issue of pre- and post-protected activity motives is Slattery v. Swiss Reinsurance, 248 F.3d 87 (2d Cir. 2001). The Court in Slattery stated that temporal proximity between a plaintiff’s protected activity and a defendant’s adverse employment determination will not prove causation if the adverse employment determination (such as the termination or demotion) was “both part, and the ultimate product, of an extensive period of progressive discipline” that began before the plaintiff’s protected activity. 

In Slattery, the progressive discipline and the reason for the plaintiff's termination related to the same  performance issues. In Perez, the pre- and post-protected activity related to different issues. Prior to Perez's request for a reasonable accommodation, management has issued him a series of negative performance memos. Following the accommodation request, management conducted an investigation into Perez's job application and determined that he had engaged in fraud. Management said it conducted the fraud investigation after looking into Perez's performance issues, triggering questions about the possible fraud. 

I represented Perez on this appeal. I argued that the fraud was unrelated to the prior performance issues such that plaintiff's termination did not grow out of the prior issues but a new concern, the alleged fraud (which plaintiff disputed in any event). The Court of Appeals disagreed, holding that the fraud investigation grew out of the unrelated performance issues and that plaintiff therefore could not make out a prima facie case of retaliation. The Court (Carney, Wesley and Nardini) writes:

1. the record shows that since June 2015, Defendants had been moving towards terminating Perez’s employment in response to the litany of complaints made about his job performance: his “repeated failure to perform [his] duties,” his “disturbing” behavior, and his “incompetence.” Defendants ultimately terminated Perez in April 2016, citing fraud—his denial and nondisclosure of past employment issues—that they alleged he committed while applying for employment with DCAS. The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that Defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component. Consequently, the mere temporal proximity of Perez’s protected activity and his termination cannot support an inference of the requisite causal connection.

This case extends the Slattery reasoning, or at least that is how I argued it. The Court of Appeals did not see it that way. Below is the Law 360 write-up on the case: 

2nd Circ. Topples NYC Engineer's ADA Case

APRIL 16, 2020

Law360 (April 13, 2021, 7:13 PM EDT) -- The Second Circuit on Tuesday tossed a former New York City engineer's suit accusing a city agency of wrongly firing him a few months after he requested a disability accommodation, saying the worker couldn't disprove the city's claim it terminated him for misconduct.

A three-judge panel affirmed a March 2020 summary judgment ruling in favor of New York and its Department of Citywide Administrative Services, saying former employee Gil Perez was clearly fired for poor performance and fraud. The panel further affirmed the firing was not because of his request for a few weeks' notice of schedule changes to help deal with his sleep apnea.

"The record leaves no doubt that his termination grew out of the ongoing disciplinary investigation that defendants initiated regarding Perez in June 2015, four months before Perez made his reasonable accommodation request, and of which the fraud issue was only the most recent component," the panel said in a Tuesday summary order.

Perez sued the city and DCAS in August 2016 claiming discrimination and retaliation under the Americans with Disabilities Act and state law. He appealed only his retaliation claim in April 2020.

But the six months between Perez's disability accommodation request and his firing alone weren't enough to suggest that the request caused him to lose his job, the court found.

The decision turned on the Second Circuit's 2001 ruling in Slattery v. Swiss Reinsurance America Corp. In Slattery, the court held that close timing between protected activity and a negative employment action isn't enough to suggest retaliation if the adverse action was linked to discipline that predated the protected activity.

New York, meanwhile, showed it had been inching toward firing Perez since June 2015 based on problems with his job performance — and an investigation that revealed Perez had failed to disclose previous employment issues when he applied for his DCAS job.

"Perez has failed to adduce sufficient evidence for a jury to infer causation," the panel said, adding, "The record evidence of complaints about Perez's behavior and management's related concerns is overwhelming."

But Stephen Bergstein, partner at Bergstein & Ullrich and an attorney for Perez, told Law360 Tuesday the court took the Slattery standard too far.

Bergstein noted that the DCAS discipline that began before Perez sought a disability accommodation wasn't the root of his firing. Rather, his termination was for something completely different: the city's investigation, which took place later.

"That investigation had nothing to do with negative write-ups. That [investigation] didn't arise prior to the protected activity," Bergstein said. "I'm surprised by this because they're really stretching Slattery beyond what I think is reasonable."

Perez started working for DCAS in November 2012 after resigning from the city's sanitation department. He was disciplined starting in fall 2014 for poor performance and insubordination, according to court filings.

Perez had sleep apnea and his doctor said a more regular schedule would help, so in October 2015 he requested six weeks' advance notice for future shift changes, according to his brief. He was granted a version of the accommodation six months later, in April 2016, according to court filings.

Meanwhile, the city had begun investigating Perez's departure from the sanitation department and found he had resigned to avoid getting fired, according to the city's appellate brief. However, Perez hadn't disclosed that issue when he applied to DCAS — giving the city reason to fire him, the court found.

A spokesperson for the New York City Law Department did not immediately respond Tuesday to a request for comment.

Judges Richard Wesley, Susan Carney and William Nardini sat on the panel.

Perez is represented by Stephen Bergstein of Bergstein & Ullrich.

New York is represented by Richard Dearing, Claibourne Henry and Scott Shorr of the New York City Law Department.

The case is Perez v. City of New York et al., case number 20-1301, in the U.S. Court of Appeals for the Second Circuit.

 

Inmate wins appeal arising from grievance over beating

The inmate wins this appeal on a technical issue. The Court of Appeals reinstates this claim alleging that correction officers had assaulted him in violation of the Eighth Amendment. The case was dismissed because the trial court said plaintiff did not prove he had filed an internal grievance, a requirement under the Prison Litigation Reform Act, a mid-1990s law that makes it harder for inmates to proceed with their cases, imposing the grievance requirement, among other things.

The case is Smith v Dodge, a summary order issued on February 10. I am not sure an internal grievance over a prison assault will solve anything, but the Supreme Court said about a decade ago that excessive force constitute the kind of prisons conditions that are subject to the grievance requirement. 

The law does account for the possibility that an inmate will have filed a grievance but the prison will argue that no such filing occurred, and that the case should therefore be dismissed. One way for the inmate to get around this defense is to show that "prison administrators thwart[ed] inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation." The case for that is Ross v. Blake, 136 S.Ct. 1850 (2016).

Plaintiff's affidavit permits the finding that he did file a grievance but the jail did not process it. The jail denies this claim but on a motion for summary judgment, we accept non-conclusory affidavits as true. While the district court said plaintiff's affidavit was conclusory and was therefore not good enough, the Court of Appeals (Livingston, Jacobs and Lynch) disagrees, stating:

Smith alleges, inter alia, that he submitted not one but two grievances in connection with the purported assault on September 9. He further asserts that he submitted the second grievance because of his concern, after speaking with another inmate, that his first grievance would be intercepted by prison staff. Smith also claims that he contemporaneously mailed an additional copy of the second grievance to his lawyers. He specifically alleges that the second grievance was picked up by a corrections officer on September 29 and that he sent a follow up letter to prison authorities with copies of both grievances on October 15 . According to his affidavit, Smith received notice in late October that his second grievance was untimely. Smith alleges that other grievances he submitted during this period also went missing, but that he subsequently received notice that they had been received and accepted. Smith asserts that all these grievances were interfered with as a result of his repeated complaints about the September 9 incident.

While the case is remanded to the district court, we still have a factual issue on whether plaintiff filed the grievance. The district court still has to decide that issue as a factual matter. I don't want to be cynical, but the inmate has to overcome the testimony of jail officials who will deny the allegations that they had mishandled or suppressed the grievances. That's a tall order. I don't know what plaintiff did to wind up in prison, but my guess is that crime will undermine his credibility. Whether Congress took this into account when they imposed the grievance requirement under the PLRA, I know not.

 

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.

 

8. 
   

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. 

When Rule 68 offers go wrong

I would say the most confusing rule in the Federal Rules of Civil Procedure is Rule 68. What makes the confusion even worse is that misunderstanding the rule can have huge financial consequences. Rule 68 says the defendant can serve an Offer of Judgment on the plaintiff for a sum of money that the plaintiff has 14 days to accept or reject. If the plaintiff rejects the offer and then goes to trial but recovers less money than the defendant had offered under Rule 68, then the plaintiff suffers a penalty. The rule does not make this clear, but the Supreme Court 25 years ago interpreted Rule 68 to mean the punishment requires the plaintiff to cover the defendant's costs, but not attorneys' fees, and that if the case involves fee shifting (such as an in a civil rights case), the plaintiff cannot recover any fees that accrued after the Rule 68 offer was served. It's all very complicated, and lawyers have to ensure that the Rule 68 offer is clear and unambiguous for these penalties to kick in. The offer in this case was not clear.

The case is Electra v. 59 Murray Enterprises, issued on February 9. Plaintiffs are eleven professional models and actresses whose images were used to promote what we call "Gentlemen's Clubs" in New York City. They brought eight causes of action. Plaintiffs says they did not consent to have their photos used for this purpose. As the case proceeded, the defendants served a Rule 68 offer on the plaintiffs. The offer read, that Defendants were offering "Plaintiffs collectively to take a judgment against Defendants in the amount of $82,500.00 . . . on each of the Causes of Action contained in the Complaint," inclusive of interest, attorneys fees, etc. Plaintiffs accepted the offer, claiming in their response that they were expecting $660,000.000 in the settlement checks.

You can imagine the confusion and rage among defendants' attorneys when they learned that plaintiffs had accepted the Rule 68 offer but were now demanding more than $600,000.00.  Its moments like that that cause lawyers to drink. "Where the hell do they get off demanding $660,000!" Or something like that. Plaintiffs said they $82,500 referred to each of the eight claims asserted in the lawsuit. Defendants probably responded that they never interpreted the offer to be interpreted that way. So the courts had to deal with this problem. The trial court rejected the plaintiffs' interpretation and said the were not entitled to the $660,000. The Court of Appeals (Pooler, Kearse and Calabresi) agrees and finds against the plaintiffs. 

The problem with the Rule 68 offer is that it was ambiguous. The Rule 68 process requires that the parties have a meeting of the minds, as the offer is would create a contract between the parties. Here is the ambiguity: while the Rule 68 offer said the plaintiffs "collectively" would take judgment in the amount of $82,500.00 . . . on each of the Causes of Action," the offer was unclear as to the amount of the settlement. The offer was "reasonably susceptible to more than one interpretation because the word 'collectively' contradicts the use of the word 'each.'" The Court concludes, "An offer that states a dollar amount to be specified in the judgment but does so using language that would permit the defendant to argue later that the offer was for a different amount has no Rule 68 validity."

The Court then adds another gloss to this case: that even if a Rule 68 contract had somehow been formed calling for a judgment in the amount of $660,000, the Court would find that defendants would have been able to avoid the contract on the basis that the offer had a unilateral mistake. Under settled contract law principles, "where a mistake of one part at the time of a contact was made as to a basic assumption on which he made the contract has a material effect  . . . that is adverse to him, and the other party had reason to know of the mistake, the contract is . . . voidable by him." That principle works to defendants' advantage because, during settlement negotiations that predated the Rule 68 offer, it was clear the parties were not going to settlement in the high six-figures, and defendants then told plaintiffs they were going to serve a Rule 68 offer in the amount they had previously offered in settlement negotiations, which was $82,500. So plaintiffs knew the Rule 68 offer couldn't have been for $660,000.

Second Circuit scales back the scope of the Fair Housing Act

The Court of Appeals holds en banc that the Fair Housing Act of 1968, which aims to eliminate racial discrimination in housing, does not allow a tenant to sue the landlord over his deliberate indifference to racial harassment committed by another tenant. The rare en banc vote was 7-5.

The case is Francis v. Kings Manor, issued on March 25. Francis lived in an apartment complex in Suffolk County. His neighbor targeted Francis for horrible racial harassment that eventually got the neighbor arrested for aggravated harassment. Francis complained on multiple occasions to the landlord about this abuse, but the landlord did nothing, though it did handle other non-race-related disputes among tenants on other occasions. 

This case reaches the Court of Appeals on a Rule 12(b)(6) posture, so there is no discovery yet, just the pleading. The majority says the FHA cannot provide a remedy because, unlike racial harassment in the workplace, landlords do not have the "substantial control" over tenants that employers have over employees. Judge Cabranes, writes, "We are hard-pressed to presume that an employer's manner and degree of control over its agent-employees is equivalent to that of a landlord over its tenants." Not only do "most employers have ready access to, effective control over, and the ability to move within, the physical workspace and can freely dismiss at-will employees," and they can monitor and investigate employees to remediate misconduct, the same cannot be said about landlords. In addition, 

New York tort law has long been clear that a landlord has no general duty to protect tenants even from “the criminal acts of yet another tenant, since it cannot be said that [a] landlord ha[s] the ability or a reasonable opportunity to control [the offending tenant]” and the “power to evict cannot be said to . . . furnish” such control. 

Judge Lohier writes the main dissent, having written the majority decision in this case a few years ago that the en banc ruling now reverses. After reviewing the extent of the racial harassment visited upon plaintiff and the landlord's indifference to his complaints, Judge Lohier notes that under the minimal pleading requirements in civil rights cases in the Second Circuit, plaintiff states a case in part because he alleges the landlord had authority to counsel, discipline and evict the harasser and it had intervened in other disputes among tenants. The lease gives the landlord authority to control bad tenants, and in this case we are not talking about a loud stereo but criminal activity that got the harasser arrested. Plus, we have the warranty of habitability that state law imposes on landlords to ensure the tenants have a safe living environment. 

En banc rulings in the Second Circuit are rare. The last civil case that the entire court took up was Zarda v. Altitude Express, where the Court held for the first time that sexual orientation discrimination is a form of sex discrimination under Title VII, a ruling that the Supreme Court upheld in Bostock/Zarda in 2020. That en banc case was heard in 2017. If you are keeping score, the lineup in the Francis case is as follows: of the seven judges in the majority, one was appointed by a Democrat (Cabranes), one was appointed by George W. Bush (Livingston) and five were appointed by Trump (Bianco, Nardini, Menashi, Sullivan and Park). All the dissenters (Chin, Lohier, Pooler, Katzmann, and Carney) were appointed by Democratic presidents.

 

New police misconduct trial for Occupy Wall Street protester

Occupy Wall Street cases continue to work their way through the courts. In this case, the plaintiff sued the police over assault and battery arising from an Occupy anniversary get-together in 2012. The case went to trial, and plaintiff lost. The Court of Appeals revives her case because the trial court did not properly instruct the jury on the elements of her claim.

The case is Tardif v. City of New York, issued on March 18. I wrote about the disability discrimination portion of the case at this link. Tardif lost the ADA  battle, but she also claims that officers shoved her and caused her head to strike the pavement, causing her to lose consciousness and sustain a concussion. Plaintiff claims this assault was not justified. The police claimed they were trying to prevent the situation from further escalating and they grabbed her and pulled her over to the side to prevent her from running into another officer. This is a classic fact dispute in most police misconduct cases, to be resoled by a jury. That is what happened here, but there will have to be a new trial.

The best way to appeal from an adverse jury verdict is to challenge the jury instructions. The trial court has no discretion to charge the jury properly. Either it's done right or it's done wrong. In contrast, you can't appeal on the basis that the jury improperly weighed the evidence. 

The trial court charged the jury that it "may consider the need for the application of force, the relationship between the need and the amount of force that was used, the extent of any injury inflicted, and whether force was applied in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." During the deliberations, the jury asked the court to clarify the instructions. The court again told the jury that it should consider, among other things, whether the officer used force "in a good faith effort to maintain or restore discipline, or maliciously for the very purpose of causing harm." 

Under the law, the jury is only supposed to examine the officers' actions through an objective standard, i.e., whether the officer acted reasonably under the circumstances. Cases have held that the officer's subjective intent is not relevant to this analysis. So even if the officer acted maliciously, if a good officer would have used the same amount of force, then there is no excessive force claim. An officer's motives simply do not count. The Court of Appeals (Bianco, Livingston and Parker) says the jury instruction in this case, to the extent it asked the jury to consider whether the officer acted maliciously or in good faith as a means to maintain or restore discipline, was wrong. Since the error was not harmless in that the proper instruction could have yielded a favorable verdict for plaintiff, we got ourselves a new trial.

Appellate Division upholds recent vaccination requirements

In June 2019, the State Legislature revised the vaccination rules for measles following an outbreak in Rockland County. The new law eliminated the religious exception for these vaccinations, sparking protests statewide among parents who do not want this immunization for their children. Since public schools may reject students who are not vaccinated, the new law created an urgency for these parents, who cited their religious objections to the vaccination requirements. Litigation followed. The lower courts have ruled against the parents, and now the Appellate Division has rejected those challenges as well.

The case is F.F. v. State of New York, a Third Department ruling issued on March 18. This constitutional challenge stems from the parents' rights under the Free Exercise Clause, which protects religious freedom. As a preliminary matter, the Third Department determines that since the legislative revisions apply to everyone, and not just parents with religious objections, the standard of review is whether the the law has a rational basis, a legal term of art that means any justification that the legislature could have relied upon in passing the law. Rational basis review is the death knell for constitutional challenges, as courts will always find a reason why a legislative body passed a particular law.

The Third Department says the law was motivated by important health concerns: that under mass immunization, we will have nearly 100% immunity against measles, and that the legislature was entitled to rely on medical and scientific experts for this judgment. 

Plaintiffs' primary claim is that the law was not rational because it was motivated by anti-religious hostility. The Supreme Court recognized such an argument in the Masterpiece Cakeshop case from 2018, where they ruled that a state administrative agency ruled against an anti-gay baker because the agency demonstrated hostility toward religious beliefs. But that case does not apply here, the Third Department says, because the 11 floor statements that plaintiffs claim demonstrate religious hostility are simply not enough to win. Not only were the statement made by only five of the more than 200 legislators who voted on the bill, but "many of the statements do not demonstrate religious animus" but instead "display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based on non-religious beliefs" by, for example, hiring consultants to help evade the vaccination requirement through false applications for the religious exemption. 

What about the argument that repealing the religious exemption would actually target religious freedoms under the First Amendment? That is not the case, the Third Department says, because repealing the religious exemption now makes the law a neutral one that applies to everyone. While the religious exemption had favored religious families, its repeal "subjects those in the previously covered class to vaccine rules that are generally applicable to the public." And, given the significant public health concern over stopping any measles outbreak, that repeal was rational under constitutional standards. The Appellate Division also rejects the parents' Equal Protection and free speech arguments, finding on the basis of Supreme Court authority that "there is no equal protection violation where children are not permitted to attend school without a vaccination," and the new rules regulate conduct, to speech, and parents remain free to express their views on vaccinations, even the rule forces parents to make difficult choices about whether to vaccinate their children.

Denial of medication while in police custody does not violate Americans with Disabilities Act

This case arising from the Occupy Wall Street protests a decade ago sets forth a new interpretation of the Americans with Disabilities Act. The plaintiff was arrested in March 2012 during an Occupy anniversary commemoration, and while in police custody, she was denied medicine for her epilepsy for hours on end before they finally administered it to her at 4:30 in the morning, about 12 hours after she first entered police custody. She normally takes her medication at 10:00 pm. Does she have a case under the ADA? The Court of Appeals says she does not.

The case is Tardif v. City of New York, issued on March 18. The district court granted the City summary judgment on this claim, and the Second Circuit (Bianco, Livingston and Parker) affirms. Under the ADA, no disabled person may be denied the benefits of any services from a public entity "due to her disability." Plaintiff claims she was denied a reasonable accommodation in violation of the ADA. While that theory can work for many plaintiffs depending on the circumstances, it does not work for plaintiff. As the Court of Appeals frames the issue:

Whether the alleged failure by the police to provide custodial medical services to Tardif in a timely and adequate manner prior to her arraignment, by itself, constitutes a failure to make a reasonable accommodation "by reason of" an individual's disability under the ADA.

Prior case law, Henrietta D. v. Bloomberg,  331 F.3d 261 (2d Cir. 2003), holds that plaintiffs must prove their "disabilities were a substantial cause of their inability to obtain services," rather than "so remotely or insignificantly related to their disabilities as not to be 'by reason' of them." Ultimately, the Court held in Henrietta D., "the demonstration that a disability makes it difficult for a plaintiff to access benefits that are available to both those with and without disabilities is sufficient to sustain a claim for a reasonable accommodation." This is a fine distinction. 

Plaintiff loses under that distinction because there is no evidence that plaintiff's disability made it difficult for her to access benefits, i.e., medical services, that were available to all pretrial detainees. Her epilepsy did not cause a deprivation of medical services. "At its core, the issue here is not whether Tardif as denied medical services because of her disability. Instead, her claim relates solely to whether she received adequate medical treatment in police custody for her disability, and such a claim is not cognizable under the ADA." Any contrary holding would allow inmates to sue in federal court virtually any medical malpractice clam arising from a custodial setting. In other words, the Court of Appeals sees this as a medical malpractice case, not an ADA case. 

The Court of Appeals issued a similar holding in Doe v. Pfrommer, 148 F.3d 73 (2d Cir. 1998), stating that where someone challenges "the substance of the services provided" rather than "illegal discrimination," there is no ADA violation.

What relief would plaintiff have in this situation? In a footnote, the Court of Appeals notes that pretrial detainees like Tardif could sue for the denial of medical treatment under the due process clause for deliberate indifference. The Court of Appeals cites Weyant v. Okst, 101 F.3d 845 (2d Cir. 1996), a case I argued 25 years ago, for that proposition. The opinion in Tardif's case does not indicate whether she pursued such a claim.

A hell of a win for the inmate

This case is a hell of a win for the inmate, who won summary judgment against the jail on his claim that he was placed in isolation despite his mental health issues, in violation of the Eighth Amendment's prohibition against cruel and unusual punishment. That victory is now only partially gone, as the Court of Appeals finds the district court resolved disputed issues of fact in ruling in plaintiff's favor on the confinement issue. But the Court still finds in plaintiff's favor on another issue, holding that plaintiff's re-sentencing following the abolition of the death penalty in Connecticut was an unconstitutional bill of attainder. Plaintiff also wins an equal protection argument because he was treated differently than two other inmates who also committed heinous crimes.

The case is Reynolds v. Quiros, issued on March 11. Plaintiff was convicted of murdering a police officer and given the death sentence. But after the Connecticut Supreme Court ruled the death penalty was unconstitutional under the state constitution, plaintiff was re-sentenced to life imprisonment. The district court said the jail was deliberately indifferent to plaintiff's constitutional rights in placing him in confinement in light of his mental health condition. The court also held the jail violated due process in failing to provide plaintiff the minimal procedural protections in determining his reclassification following the state supreme court's death penalty ruling. For good measure, the district court said plaintiff was denied equal protection because two other inmates were able to live in the general population even though they had similar cases as plaintiff.

The state wins the Eighth Amendment appeal because the district court overlooked evidence that plaintiff was not actually placed in "solitary confinement" but went into the Special Circumstances Unit, which a jury may find is not quite solitary confinement. While true solitary confinement places the inmate in his cell 23 hours a day, where he eats his meals and the lights are always on, the Special Circumstances Unit allows plaintiff to exercise outside the cell, they could talk to inmates during that recreation period, and they can have social visits and phone calls. So a jury must determine whether this was really solitary confinement or not.

Plaintiff does win the equal protection argument, though. The two inmates who got more favorable treatment at the jail were comparable to plaintiff even though plaintiff was the only one who killed a police officer. The other two inmates also committed heinous crimes, however. One killed a sleeping man in his home as part of a contract killing, and the other killed a State Trooper during the commission of a burglary. Since plaintiff was classified differently than these inmates, his constitutional rights were violated. 

The final issue raised in this appeal is whether the state law that was enacted after State Supreme Court overturned the death penalty, sentencing inmates like plaintiff to life imprisonment, is an unconstitutional bill of attainder, which prohibits the government from determining guilt and inflicting punishment against people without a trial. The Court of Appeals (Cabranes and Kearse) rules it is not. This is a particularly obscure area of constitutional law. You almost never see bill of attainder cases. 

 

Plaintiff wins this argument because the law actually singles him and other death row inmates for punishment, it is punitive in placing inmates in administrative segregation, and the state legislature intended to punish plaintiff and other inmates in passing the law. And there was no judicial trial to mete out the new punishment. 

Working remotely was not a reasonable accommodation (pre-Covid) under the ADA

This case acquaints us with how reasonable accommodations work under the Americans with Disabilities Act, which requires employers to accommodate disabled employees provided the accommodation does not dispense with an essential job function. The question here is, What is an essential job function? Plaintiff said his proposed accommodation still allowed him to perform all of his work, but the Court of Appeals says that's not true, and summary judgment for the employer is affirmed. 

The case is Frantti v. State of New York, a summary order issued on March 9. As the Court of Appeals (Cabranes, Raggi and Kaplan [D.J.]), "Not all accommodations are reasonable. . . . [A]n accommodation is not reasonable if it, in essence, requires an employer to eliminate an essential function of a job. Although the term ‘essential functions’ is not defined by the ADA, regulations promulgated by the Equal Employment Opportunity Commission . . . indicate that it encompasses ‘the fundamental job duties of the employment position. In approaching this inquiry, a court must give considerable deference to an employer’s judgment regarding what functions are essential for service in a particular position.” 

With those principles out of the way, plaintiff loses. He says he can work from home to accommodate his disability, or take on an alternate work schedule. But that will not cut it, the Court says, because the record shows that "Frantti’s job required him to perform involved analysis on complex, collaborative projects that unfolded over long periods of time. He also needed to be “in the office and available on a consistent basis, for assignments” and to communicate with co-workers and other parties."

What's critical is that plaintiff's employer, the Division of Criminal Justice Services, could not technically accommodate remote work." At least not at the time. The Court of Appeals notes this is now a quaint management deficiency now that we're living through "this extraordinary era of pandemic-necessitated remote work." Ain't that the truth. The Court of Appeals has not heard cases in person since last spring, hearing oral arguments now over the phone and Zoom. But what matters is what management was able to do for plaintiff at the time, and at the time, working remotely was not feasible. 

For years, employment specialists have wondered if telecommuting might constitute a reasonable accommodation under the ADA. Many courts have not accepted that principle on the theory that, sometimes, your presence in the office is required to interact face to face with coworkers. I wonder if that will change in the age of Covid-19, where most employers found a way to get by through remote employment. My guess is that, once we're all vaccinated and the US reaches herd immunity, the next round of telecommuting cases will find courts ruling for the plaintiffs on this issue.