Wednesday, April 26, 2023

No municipal liability where Port Authority medical visit was captured on video

This Port Authority employee was examined by a Port Authority doctor for an injury that resulted from an altercation at work. Unbeknownst to plaintiff and her doctor, the doctor's visit was actually captured on video, though it did not record any audio. Port Authority said the camera was installed to prevent the theft of prescription drugs, and the curtain that would have given plaintiff medical privacy was not fully drawn. Can plaintiff sue Port Authority over this? She cannot.

The case is Talarico v. Port Authority, a summary order issued on March 30. The district court dismissed the case, holding that plaintiff did not have a reasonable expectation of privacy in the Office of Medical Services room. The Court of Appeals affirms, but on different grounds, dismissing the case. The Court of Appeals (Parker, Lynch and Lohier) holds that plaintiff cannot sue Port Authority, the only defendant in the case, under Monell, which governs when you can sue a City agency whose policy or practice violates the Constitution.

Monell derives from a Supreme Court case from 1978 that makes it difficult to sue municipal governments and agencies. You have to show the rights violation resulted from a policy or practice. It is easier to sue individual governmental defendants, who cannot invoke Monell as a defense, though they can get qualified immunity if the law was not clearly established at the time of the rights violation.

Plaintiff loses because she cannot show the camera/privacy violation resulted from Port Authority policy. Under Monell, policies do not have to be in writing. You can prove a policy if the unlawful practice was widespread. But no senior or subordinate Port Authority employees engaged in any persistent or widespread practice of recording medical examinations in the Port Authority medical office. A single incident of unconstitutional activity is not enough to overcome a Monell objection. Cases on this issue include Lucente v. County of Suffolk, 980 F.3d 284 (2d Cir. 2020), and Mitchell v. City of New York, 841 F.3d 72 (2d Cir. 2016). As plaintiff conceded this was "probably a one-off" event, and field to identify any other comparable event, this is a classic case where Monell kills off the case, and the lawsuit is over.

Tuesday, April 25, 2023

Former inmate cannot challenge Internet/speech restrictions under the First Amendment

This prisoners' rights case asks whether an inmate can sue DOCSS officials under the First Amendment for imposing special Internet-related conditions for his release from prison following his sentence on two rape convictions. He cannot sue either official. One defendant has absolute immunity, and the other has qualified immunity.

The case is Peoples v. Leon, issued on March 20. Peoples was denied discretionary early release from prison and the Parole Board set special conditions for him to satisfy during his post-release supervision. These special conditions limited Peoples' use of the Internet, accessing social networking sites, Internet gaming, and even possessing a computer or a communications device that allows you to access the Internet. 

The first defendant, Alexander gets absolute immunity over her role in imposing the special conditions because she did so in a quasi-judicial capacity as Commissioner of the Parole Board. Judges get absolute immunity for their judicial acts. Other government officials also enjoy that immunity if they perform functions that are closely associated with judicial acts, such as administrative law judges. The Second Circuit has already held that parole board officials deciding to grant or deny parole perform quasi-judicial functions that entitle them to immunity  The question here is whether immunity is extended to the Board's act of imposing special conditions of release. The Court of Appeals (Livingston, Parker and Robinson) answers that question in the affirmative, as the Board is empowered to determine the conditions of release, and that power coexists with the Board's quasi-judicial power to grant, deny, or revoke parole. The statutory guiding these decisions "connects the parole board's acts of granting, denying, or revoking parole directly to its determination of special conditions." 

The second defendant, Leon, gets qualified immunity for her role in imposing the special conditions. Qualified immunity is what it sounds like. Some defendants get immunity, and some do not, depending on whether the law was clearly established at the time of the purported constitutional violation. Peoples says the Internet restrictions violate his constitutional right to Internet access. In 2019, the Second Circuit said in United States v. Eaglin that "the imposition of a total Internet ban as a condition of supervised release inflicts a severe deprivation of liberty" that will be reasonable in "highly unusual circumstances." As Leon made her recommendations in 2018, prior to that Second Circuit ruling, she argues that Peoples cannot win his case because the law was not yet clearly established that she may have done anything wrong in imposing the conditions. 

But Peoples points to a 2017 Supreme Court ruling, Peckingham v. North Carolina, which stated that "to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights." That language looks pretty good for Peoples, but he cannot overcome qualified immunity because the language in Peckingham was broad "and its analysis did not turn on the fact that the individuals impacted by the North Carolina statute were no longer subject to state supervision." In other words, the language in Peckingham did not address Peoples' case in particular. Leon thus gets qualified immunity, and Peoples cannot recover any damages against her.

Monday, April 24, 2023

Trump v. Carroll sexual assault case reaches the Second Circuit

The sexual assault and defamation case that Jean Carroll has filed against Donald Trump has reached the Second Circuit. Recall that this case started when Trump called Carroll a liar and then New York State revived the statute of limitations for certain sexual assault cases, allowing Carroll to sue Trump for both alleged assault (which allegedly took place in the 1990s) and for defamation. The state court case was removed to federal court on diversity grounds and the Second Circuit had to determine whether Trump's allegedly defamatory comments were made within the scope of his employment as President of the United States.

The case is Carroll v. Trump, issued on April 21. It looks like there will be separate trials in this case. The sexual assault and defamation trial will proceed on April 25. The defamation trial involving post-presidency statements will take place in the future.

As for the defamation claim arising from comments he made in the White House, if Trump made his comments within the scope of his office as President, then the United States is the real defendant in this case, not Trump, and the President is absolutely immune from personal liability for any tortious acts while on the job. When this case last reached the Court of Appeals, a 2-1 majority said that the President is an employee of the government under the Westfall Act, formally known as the Federal Employees Liability Reform and Tort Compensation Act of 1988. But the Second Circuit was unable to resolve a related issue: whether Trump's conduct was within the scope of the President's employment. So the Court asked the District of Columbia Court of Appeals to apply District of Columbia law on this issue.

The D.C. Court of Appeals first ruled that it cannot opine on whether the President's scope of employment because that is an issue for the fact-finder, usually the jury. It further provided guidance for the trial in this case, which will proceed in the Southern District of New York, stating that the District of Columbia adheres to the Restatement of Agency, which is a scholarly declaration of the state of law in that jurisdiction based on case law, statutes, and scholarship. The DC Court of Appeals declined to find that the conduct of elected officials speaking to the press is always within the scope of that official's employment.  The ruling from the DC Court of Appeals is lengthy and discusses respondent superior liability in a manner that only a law profess would love. For the rest of us, it means the jury in this case will have more questions to answer, separate and apart from whether Trump raped Carroll and then defamed her character when she accused him of sexual assault.

Friday, April 21, 2023

Supreme Court rules for death-sentence defendant who wants DNA testing

This Supreme Court case involves a brutal 1996 murder. Under normal circumstances, the defendant would lose the case, as the Court is not exactly soft on crime. But this case raises a different issue: what is the statute of limitations when the defendant wants to challenge his conviction on the basis of DNA evidence? The Court rules for the defendant. 

The case is Reed v. Goertz, issued on April 19. The issue is straightforward. After the defendant is convicted of murder and he wants DNA testing to prove he did not commit the crime, how early or late can he file a Section 1983 suit in federal court challenging the DNA process? 

This case arose in Texas. After Reed was sentenced to death, he filed a motion in state court under the Texas DNA testing law. He wanted DNA testing on more than 40 pieces of evidence, including the belt used to strangle the victim. The state trial court rejected Reed's motion, and he also lost his appeal in the Court of Criminal Appeals. Reed next filed a Section 1983 suit, claiming the Texas DNA law violated due process. The federal trial court rejected that argument, and the Fifth Circuit also told Reed to take a hike, holding that the lawsuit was time-barred because the statute of limitations began to run when the Texas trial court denied Reed's motion, more than two years before Reed filed his Section 1983 case. Reed took his case to the Supreme Court, arguing that the statute of limitations began to run when the state-court litigation ended, which includes the appellate process, not simply when the trial court ruled against him.

The Supreme Court revives the Section 1983 suit. As a general rule, the SOL starts to run "when the plaintiff has a complete and present cause of action." The Court said that in 1997. That principle helps Reed, the Court says, because "the State's alleged failure to provide Reed with a fundamentally fair process was complete when the state litigation ended and deprived Reed of his asserted liberty interest in DNA testing. Therefore, Reed's Section 1983 claim was complete and the statute of limitations ended when the Texas Court of Criminal Appeals denied Reed's motion for rehearing."

The Court notes that its holding in this case makes sense because a contrary ruling would have plaintiff proceed to federal court under Section 1983 and handle his state court appeal at the same time. Twin proceedings in two different court are a bad thing. Also, allowing the state appellate process to proceed might cure any problems with the DNA process and make the Section 1983 suit unnecessary.

Justice Kavanaugh wrote the majority opinion, joined by Roberts, Jackson, Kagan and Sotomayor. Thomas dissents, arguing that federal courts simply lack jurisdiction to review any state court judgments. Alito and Gorsuch file a separate dissent.

Tuesday, April 18, 2023

How to plead employment discrimination claims, Part II: intent to discriminate

The Court of Appeals has provided guidance on how employment discrimination plaintiffs may plead their employers acted with discriminatory intent, remaining us of the low threshold for plaintiffs and holding further that the "same-actor" inference is not enough to dismiss a case under Rule 12. End result: the Court reinstates a lawsuit filed by a school principal in the City of Newburgh, who may now proceed to discovery. 

The case is Buon v. Spindler, issued on April 12. This case will be analyzed in two blog posts. The first one addressed adverse employment actions. This one covers how to plead discriminatory intent.

Following the Supreme Court's ruling in Ashcroft v. Iqbal in 2009, we have seen a sharp uptick on motions to dismiss under Rule 12, as Iqbal rewrote the pleading rules, holding that plaintiffs must allege "plausible" and non-conclusory allegations. Prior to Iqbal, plaintiffs only had to satisfy the minimal "notice pleading" standards. In my experience, "plausibility" is not the issue these days. More cases are dismissed because the district court deems the factual allegations "conclusory" and insufficiently detailed. In 2015, the Second Circuit relaxed the pleading burden in Littlejohn v. City of New York, 795 F.3d 297 (2d Cir. 2015), and Vega v. Hempstead v. Union Free Sch. Dist., 801 F.3d 72 (2d Cir. 2015), holding that plaintiffs in employment discrimination cases need only allege that, in addition to being qualified for the position and suffering an adverse employment action, they have "minimal support for the proposition that the employer was motivated by discriminatory intent." Plaintiffs' lawyers have cited Littlejohn and Vega millions of times in the last eight years, but the Second Circuit has not provided much guidance on what the "minimal support" standard really means. Until now. 

The complaint asserts a series of actions that the school district had taken against plaintiff, a Black women of West Indian descent who was an elementary school principal in the City of Newburgh school district before defendants asked her to assume leadership at SMS, a secondary school in the district. When plaintiff took on that role, defendants subjected her to a series of adverse personnel decisions that, according to plaintiff, her White colleagues did not experience: selective and harsh criticism, denying her support in dealing with a difficult parent, selectively telling plaintiff that her students could not wear Halloween costumes to school, conducting walk-throughs of plaintiff's building without notifying her, falsely telling plaintiff that she could not implement a "Math in the City" course in her school, and holding important meetings without plaintiff. Similar acts of disparate treatment continued into the next school year. 

Everything culminated in 2019, when defendants denied plaintiff a transfer to an open RISE position for which she was qualified (and had previously held), giving the position to a less-qualified administrator who was not Black not West Indian. That year, defendants also denied plaintiff an administrative position for the summer school program, a position that plaintiff had previously held but was given to five less-qualified individuals, four of whom were White. Plaintiff was terminated as SMS Principal in May 2019 and transferred back to her old position as elementary school principal even though she had been rated as an effective administrator for the 2018-19 school year. The district court dismissed the case under Rule 12 for failure to state a claim, but the Court of Appeals (Sullivan, Chin and Bianco) reinstates the claim.

How does this case fare under Littlejohn and Vega? The Court of Appeals says plaintiff pleads enough facts to bring this case into discovery. Plaintiff alleges "facts that give rise to a plausible inference of discrimination with respect to the denial of her application to administer the RISE program, the denial of her application to administer the summer-school program, and the termination of her position as SMS principal." The Court adds, "With regard to each of the three positions at issue, Buon alleges that she “was qualified for the position she sought or held and was either denied appointment or replaced by a person of another racial and/or ethnic group who lacked her qualifications.” 

As to the RISE program, plaintiff alleges that "although she held the position previously, it was given in January 2019 to an individual who 'was neither African American nor West Indian.'” Plaintiff further  alleged "that the individual who secured the position was a less qualified and newly hired administrator who did not hold a school-based job. . . . Similarly, as to the summer-school position, Buon contends that, even though she had participated in the summer program for at least the 'five prior years,' and that she 'was better qualified' for the role,  'defendants Padilla and the district chose much less experienced persons to administrate the district’s summer-school program.'" In addition, “[o]f the five persons chosen [for the position], four were Caucasian, one was Latino, and none were African American or West Indian.”
Plaintiff also "listed a series of instances of disparate treatment in the workplace where she was allegedly subjected to job requirements and to discipline that was different than employees outside her protected class." These actions were as follows: 

unlike employees who were not African American or West Indian, Buon was, inter alia: (1) “required to make phone calls to students to inform them they could not wear Halloween costumes”; (2) “required to provide timely responses to meeting invitations”; (3) “not allowed to institute certain programs at her school”; (4) “disciplined for being late”; and (5) subjected to a “negative performance review, disciplinary meetings, and other forms of criticism”). 
Although these alleged other instances of disparate treatment may not separately rise to the level of adverse employment actions, Buon is permitted to “[c]reat[e] a mosaic with the bits and pieces of available evidence” that, taken together, support a plausible inference of intentional discrimination with respect to the decisions to deny her application to be the RISE administrator, deny her application to work summer school, and terminate her position as SMS principal.

The Court of Appeals takes apart the district court's reasoning. First, for purposes of pleading a discrimination claim, it does not matter that plaintiff's supervisors had previously treated plaintiff well. This is the "same-actor" inference, which holds that discrimination is less likely when the decisionmaker had previously hired or promoted the plaintiff and is thus less likely to discriminate against that individual. The Court of Appeals notes that it has never applied the same-actor inference to Title VII claims, only to cases brought under the Age Discrimination in Employment Act. But even so, the same-actor inference is more suitable on summary judgment motions, not Rule 12 motions, which afford the plaintiff a more generous pleading burden under Littlejohn. "As a result, we conclude that the inference should not be used to foreclose Title VII and Section 1983 claims at the motion-to-dismiss stage if the plaintiff has otherwise set forth allegations that support a plausible inference of discrimination." This is the first time the Second Circuit has interrupted the same-actor inference this way.

Finally, in dismissing the case, the district court held that plaintiff did not allege enough information to show that she was singled out on the basis of her race or national origin. Alleging that White similarly-situated employees were treated better than the plaintiff is one way to prove disparate treatment. But, here too, the Court of Appeals holds that this issue is more relevant on a summary judgment motion than a motion to dismiss. Citing prior Second Circuit cases on this issue, the Court of Appeals holds:

“Ordinarily, whether two employees are similarly situated presents a question of fact, rather than a legal question to be resolved on a motion to dismiss.” In any event, even apart from any inference of discrimination arising from these other alleged instances of disparate treatment, Buon’s allegations that the individuals who secured each of the three positions at issue were both outside her protected class and less qualified are sufficient for the Title VII claim to survive a motion to dismiss.

Monday, April 17, 2023

How to plead employment discrimination cases, Part I: adverse actions

The Second Circuit has provided significant guidance on how to resolve Rule 12 motions to dismiss in employment discrimination cases, emphasizing that the plaintiff has a low burden in asserting a plausible claim. This ruling revives a racial discrimination case filed by a school administrator. 

The case is Buon v. Spindler, issued on April 12. This case will be analyzed in two blog posts. This one covers adverse employment actions. The next one covers how to plead discriminatory intent.

The complaint asserts a series of actions that the school district had taken against plaintiff, a Black women of West Indian descent who was an elementary school principal in the City of Newburgh school district before defendants asked her to assume leadership at SMS, a secondary school in the district. 
After a series of negative employment actions, everything culminated in 2019, when defendants denied plaintiff a transfer to an open RISE position for which she was qualified (and had previously held), giving the position to a less-qualified administrator who was not Black not West Indian. That year, defendants also denied plaintiff an administrative position for the summer school program, a position that plaintiff had previously held; it was instead given to five less-qualified individuals, four of whom were White. Plaintiff was terminated as SMS Principal in May 2019 and transferred back to her old position as elementary school principal even though she had been rated as an effective administrator for the 2018-19 school year. The district court dismissed the case under Rule 12 for failure to state a claim, but the Court of Appeals (Sullivan, Chin and Bianco) reinstates the claim.

The Court says plaintiff has pleaded an adverse employment action. For this, you need a "materially adverse change in the terms and conditions of employment," such as significantly diminished material responsibilities or the loss of salary or benefits, and not a mere inconvenience or alteration of job responsibilities. While the district court said that a "denial of an educator's request to participate in additional programs, including paid programs, does not constitute an adverse employment," citing cases from other circuit courts, the Court of Appeals emphasizes that "any decision by an employer, including the denial of a workplace opportunity that materially affects the terms and conditions of employment, can constitute an adverse employment action." In addition, denying workplace opportunities, such as being prevented from earning overtime pay or comp time, and the denial of employment opportunities that do not involve the loss of money, may also constitute adverse actions. As for the latter, the loss of a prestigious position may qualify. The Court wraps this up as follows:
the denial of a lateral transfer or an additional assignment can qualify as an adverse employment action if that transfer or additional assignment would have materially changed the terms and conditions of employment, such as by materially increasing the employee’s pay or materially increasing the employee’s opportunity for advancement.

Plaintiff thus pleads a viable cause of action. The Court says:

The FAC pleads sufficient facts to plausibly allege three separate employment decisions—namely, the denial of Buon’s application to administer the RISE program, the denial of her application to administer the summer-school program, and the termination of her position as SMS principal—that each independently constitutes a materially adverse change to Buon’s employment. Buon is not alleging that the changes were “a mere inconvenience or an alteration of job responsibilities,” nor is she basing her claim on “subjective, personal disappointments." Instead, her claim is that due to defendants’ actions she was unable to substantially increase her income and was subject to a loss of her then-current income.

. . . 

Even apart from whether obtaining the RISE-administrator and summer-program positions and retaining the SMS principal position would have materially increased Buon’s opportunities for advancement inside or outside the School District, the alleged loss of additional earnings from losing or being denied these positions is sufficient to “plausibly allege[] an adverse employment action” that survives a motion to dismiss as to each of these three employment decisions. 

The question then becomes whether plaintiff has pleaded that these adverse actions were motivated by discriminatory intent. That is a subject for the next blog post. 


Thursday, April 13, 2023

Offensive racial remark not enough to win discrimination case

The plaintiff in this case was fired from his job at Delta Airlines after a dispute arose about a passenger's stolen laptop and plaintiff's station manager told him that "Dominicans are the usual suspects." Discriminatory statements like that get the case off to a good start, but that's not how the case ends. The case is dismissed, and the Court of Appeals affirms the dismissal.

The case is Jiminez v. Delta Airlines, Inc., a summary order issued on April 12. After the laptop was reported stolen, detectives interviewed plaintiff, who "exhibited many non-verbal signs of dishonesty and verbal deflection." At least that's what the Port Authority investigation summary said. But plaintiff did deny taking the laptop. At around this time, the Delta Station manager made the comments about Dominicans. Shortly thereafter, in June 2018, Plaintiff was fired, and Delta's EEO manager said plaintiff was fired because he had "provided false and misleading information when he denied knowledge or contact with the laptop." EEO also said plaintiff had failed to report a coworker whom he had knowledge of taking money from a passenger's purse and received a written coaching letter in May 2017 for misconduct.

Plaintiff's racial discrimination case is dismissed because he cannot show that Delta offered knowingly false reasons for his termination. The Court (Parker, Lohier and Lohier) reminds us that it is not enough to show the employer's reasons for the termination were false. You have to show that management knew their reasons were false and that they intentionally offered a false reason to cover up for discrimination. It looks like the Second Circuit is stating that Delta conducted an investigation prior to plaintiff's termination, which negates any finding of bad faith.

To begin, Delta terminated Jimenez’s employment after investigating his involvement in the laptop theft for weeks. Delta reviewed the Port Authority detectives’ summary of their independent investigation, which stated that during the interview Jimenez “exhibited many non-verbal signs of dishonestly [sic] and verbal deflection” and “skirt[ed] around the question” of whether “he would pass a polygraph exam.” Leading up to his termination and during his post-termination appeal, Delta also reviewed internal records confirming that Jimenez “was the only AMT assigned to the aircraft” from which the laptop was stolen, and concluded that “there is no evidence to support [Jimenez’s] allegation that others gained access to the aircraft and took the laptop.”

The Court does note that the offensive racial remark is in the record. But that remark does not alter the outcome. It cites Comcast Corp. v. Nat’l Assoc. of African American-Owned Media, 140 S. Ct. 1009, 1014-15 (2020), for the proposition that “[Section] 1981 follows the general rule . . . [that] a plaintiff bears the burden of showing that race was a but-for cause of [his] injury.” That but-for causation standard makes the difference. The motivating-factor test does not apply in cases like this, which means that some evidence of discrimination is not always enough to win the case.

Wednesday, April 12, 2023

This is how qualified immunity works, Part II

Section 1983 lawyers know that qualified immunity can doom the lawsuit before it starts. Unless the plaintiff asserts the violation of a clearly established right, the case cannot proceed. A clearly established right is determined by Second Circuit and Supreme Court precedent. This case illustrates how the plaintiff can survive qualified immunity . 

The case is Matzell v. Annucci, issued on April 4. This is a prisoner's rights case. Plaintiff's Fourteenth Amendment claim will proceed to discovery because defendants are not entitled to qualified immunity. In this blog post, I show how, in this same case, plaintiff was unable to survive the qualified immunity defense on the same set of facts on his Eighth Amendment claim.

Plaintiff was sentence to jail on a drug offense. The judge also sentenced plaintiff to the Shock program, which is a rehabilitation bootcamp program that allows inmates to be released from prison early. If the judge sentences you to Shock, you cannot be removed from that program unless there are medical or mental health issues. But jail officials kicked plaintiff out of the Shock program because of a prison substance abuse violation. That determination violated the New York Penal Law, and a state appellate court ruled in plaintiff's favor on this issue. Plaintiff then sued the state under the Eighth Amendment (prohibiting cruel and unusual punishments) and the Fourteenth Amendment's due process clause, which prohibits governmental actions that shock the conscience. While there was no Eighth Amendment case on point when state officials removed plaintiff from the shock program in 2017-2018, there was in fact a Fourteenth Amendment case on point in plaintiff's favor.

First, plaintiff identifies the violation of his substantive due process right because "the general liberty interest in freedom from detention is perhaps the most fundamental interest that the Due Process Clause protects." The Court of Appeals (Chin, Leval and Lee) states, "Defendants' decision to disqualify Matzell from enrolling in Shock diverged from the sentencing court's order and implicated his liberty interest in having his sentence implemented in a manner consistent with law and the sentencing court's order." This decision to remove plaintiff from the shock program also "shocks the conscience" under settled due process principles, as state officials did not comply with state law in making this decision, which caused plaintiff to spend another 500+ days in jail when he could have been a free man, enjoying himself. 

The ultimate question is whether state officials violated clearly established law, as determined by binding precedent in place in 2017-18. Not only did it violate state law when jail officials removed plaintiff from the Shock program, but the Second Circuit held in 2006 that "any alteration to a jail sentence imposed by a judge, unless made by a judge in a subsequent proceeding, is invalid." Earley v. Murray, 451 F.3d 71 (2d Cir. 2006). While Earley and related cases "did not specifically involve excluding an incarcerated individual from Shock, Supreme Court case law does not 'require a case directly on point,'" and a "general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific language in question even if the specific conduct had not already been held unlawful." That principle often fails to get around a qualified immunity defense, because plaintiffs' lawyers will use that language when there is no case directly on point, but that language works here, and plaintiff can now proceed to discovery on his unlawful imprisonment claim.

Monday, April 10, 2023

This is how qualified immunity works, Part I

Non-lawyers have probably never heard of qualified immunity, but lawyers who handle civil rights cases under Section 1983 know all about it. Qualified immunity means that damages lawsuits against any public official will be dismissed unless the defendant violated clearly-established law. Here is how it all works.

The case is Matzell v. Annucci, issued on April 4. Plaintiff was incarcerated on a drug violation. Under New York law, the sentencing judge can order the criminal defendant to the Shock Incarceration Program, known as Shock, a rehabilitation and rehabilitation drug treatment program that allows inmates to be released from prison early. Under the Penal Law, if the inmate is assigned to Shock by the sentencing judge, the inmate can be kicked out of Shock if they have a medical or mental health condition that would prevent successful completion of the program. In this case, jail officials kicked Matzell out of Shock because he had received disciplinary tickets in jail for substance abuse. That decision violated the Penal Law. Without the Shock program, which allows for early release from prison, Matzell spent another 506 days in prison. He sues under the Eighth and Fourteenth Amendments.

This blog post will focus on the Eighth Amendment angle. That amendment prohibits the government from subjecting inmates to cruel and unusual punishment. Plaintiff cannot win this claim unless Second Circuit or Supreme Court authority made it clear that the governmental misconduct was unconstitutional. You don't need a case on all-fours, but pre-existing case law must be close enough so that governmental officials were at least on constructive notice that they were violating the law. This kind of immunity dooms many civil rights lawsuits because there is not always a case like yours that will repel a motion to dismiss. 

The Eighth Amendment claim fails on qualified immunity grounds. While the Court of Appeals (Leval, Chin and Lee) notes that courts do not typically grant qualified immunity at the Rule 12 motion to dismiss stage, as this defense is normally more suitable for a summary judgment motion, the defendants get qualified immunity under Rule 12 in this case "the law was not clearly established at the time Defendants denied Matzell an opportunity to obtain early release through participation in Shock." The Second Circuit did hold in Hurd v. Fredenburgh, 984 F.3d 1075 (2d Cir. 2021), that "unauthorized detention of just one day past an inmate's mandatory release date qualifies as a harm of constitutional magnitude under the ... Eighth Amendment." Hurd is a good case for Matzell, but he cannot use it to avoid immunity because it was decided in 2021. Matzell suffered his prolonged detention in 2017 and 2018. Since that predates the Hurd decision, Matzell cannot argue that state officials knowingly violated the law, and public officials are not expected to anticipate future court rulings.

This means Matzell cannot win his damages case under the Eighth Amendment. But he has another claim, under the Fourteenth Amendment. That's a different story, to be discussed tomorrow.

Wednesday, April 5, 2023

Pro se inmate wins civil rights appeal

You'd be surprised how many pro se inmates win their appeals in the Second Circuit. Many district courts will grant motions for summary judgment on these claims, and perhaps the inmates don't know what they are doing at that stage of the case and the case is easily dismissed, or the district courts are prematurely judging the cases. This action involves excessive force and First Amendment retaliation, and the case will proceed to trial unless it settles.

The case is Gunn v. Beschler, a summary order issued on April 5. Here are the rules for inmate excessive force cases: The plaintiff must show the defendant acted with a “sufficiently culpable state of mind,” and that “the conduct was objectively harmful enough . . . to reach constitutional dimensions.”  Plaintiff must also show the force was not "used in a good-faith effort to maintain or restore discipline," but it was instead used "maliciously and sadistically to cause harm.”  That standard derives from Scott v. Coughlin, 344 F.3d 282, 291 (2d Cir. 2003).  In addition, “de minimis uses of physical force” are insufficient to support a constitutional claim, “provided that the use of force is not of a sort repugnant to the conscience of mankind.” That language is from Hudson v. McMillian, 503 U.S. 1 (1992). These standards give correction officers some leeway to maintain discipline in the prisons. 

But the Court of Appeals (Pooler, Merriam and Nardini) says a jury must sort this one out. "There is sufficient evidence for a jury to find that Corrections Officer Beschler intentionally kicked Gunn hard in the shin with a booted foot, while Gunn was complying with an order to return to his cell in an uncrowded hall, resulting in pain for hours. Beschler denies that the kick took place." The district court did note that "a reasonable jury could conclude that the kick occurred and that it was 'unprovoked and unnecessary.'”  Yet the case was dismissed anyway. The Second Circuit finds the jury must determine whether "Beschler kicked Gunn for the sole purpose of humiliating or causing pain to him, and whether this use of force was of a sort repugnant to the conscience of mankind."

Plaintiff also has a First Amendment retaliation claim against Officer Perry. Plaintiff filed a grievance against Officer Perry, who then subjected plaintiff to a pat frisk a few months later. These grievances qualify as free speech. "A jury could infer the requisite causation here by finding that Officer Perry knew Gunn had filed a grievance against him and that June 11, 2013, was the first opportunity Perry had to retaliate against Gunn. Accordingly, a reasonable jury could find a causal connection between Gunn’s  grievance relating to the March 29, 2013, pat frisk and the June 11, 2013, pat frisk." Another First Amendment retaliation claim will proceed against Officer Scheiber, who allegedly made retaliatory visits to Gunn's cell in January-February 2014 and presumably knew about Gunn's grievances in the jail. As the Court of Appeals notes, "the record contains evidence that Gunn was known by officers generally as an inmate who filed grievances." Yes, Gunn was a grievance-filer.

The fact that plaintiff wins the appeal does not mean he win the trial. Jurors may give the correction officers the benefit of the doubt and rule in their favor. Or maybe plaintiff has medical records to prove he was injured during the officer-kick. Juries are hard to predict. This is why most cases that survive summary judgment settle.

Tuesday, April 4, 2023

Racial and disability discrimination case fails

This was not an easy case to win. The Court of Appeals affirms the grant of summary judgment in a race and disability discrimination claim. In many ways, the reasoning in this case resembles that of many discrimination cases that are dismissed on summary judgment.

The case is Johnson v. L'Oreal USA, a summary order issued on March 27. Plaintiff was an assistant vice president who suffers from depression and anxiety. She is also Black. In 2018, a few years after plaintiff was hired, staffers began to raise questions about plaintiff's performance and unannounced absences, as well as plaintiff's inflammatory text messages. Two supervisors met with plaintiff and said they wanted to help to improve her performance and asked if she needed time off. The Court says, however, that plaintiff did not seek any accommodation or take management up on its offer to help her. When plaintiff in May 2018 went to an annual company conference, she sent a few unprofessional texts that joked about drinking wine before getting down to business with the company. Of course, these texts got back to management, which caused them to worry about her emotional state. In the end, plaintiff was fired; management said they let her go because of her "inappropriate communications, tension within the team, and absences."

The racial discrimination claim is dismissed because the Court of Appeals (Lee, Nathan and Rakoff (D.J.]) finds "ample support" that plaintiff was fired for legitimate reasons. While plaintiff claimed to have direct evidence of discrimination, in particular remarks from 2017 regarding her hair and one from 2019, made after termination, regarding "dark" customers, the court finds that while a juror may regard these as racist comments, they do not show that the decision to fire plaintiff was discriminatory, "as they were neither made by a decision-maker, or connected with or temporally close to the June 2018 decision to fire her." In other words, these are considered "stray remarks." 

Nor can plaintiff show that she was treated worse than White coworkers, as they are not similarly-situated, or comparable, to her. One comparator was her boss, and the other as a peer. But, the Court says, 

There is no evidence, for example, that these individuals sent or posted anything approximating the text and social media messages that Johnson did.  And while there is evidence that Bethelmy-Rada, at least, missed meetings on several occasions, this conduct is still too dissimilar from Johnson’s serial absences over a period of months to support an inference of pretext.  While Johnson does also argue that Bethelmy-Rada engaged in more serious misconduct, the district court correctly declined to consider these allegations as part of the comparator analysis either because they were supported solely by inadmissible hearsay evidence, or because the conduct was never reported to L’OrĂ©al,
While plaintiff argued that the reasons for her termination were not credible because management knew about the text messages months prior to her termination, the record shows that management was in fact aware of them early on and discussed the text among themselves.

What about the disability discrimination claim? In 2012, the Court of Appeals said in McElwee v. County of Orange, 700 F.3d 635 (2d Cir. 2012), that you can fire an employee over misconduct even if the plaintiff says his misconduct was related to a disability. I argued McElwee and the Court used that case to clearly make that point for the first time. McElwee results in the dismissal of Johnson's case. Nor has plaintiff shown that any reasonable accommodation would have allowed her to perform the essential duties of her employment. And while defendants engaged in an interactive process with plaintiff to work out a possible accommodation, the Court says that plaintiff did not accept those offers nor request other kinds of assistance.