Inmate wins retaliation claim against his jailers

This inmates rights case finds the prisoner has a legitimate retaliation case against his jailers, whom he claims punished him for filing grievances over the conditions of confinement.

The case is Brandon v. Kinter, issued on September 10. I wrote about the plaintiff's big win on the religious freedom portion of this case at this link. But plaintiff also says the guards retaliated against him in violation of the First Amendment, which protects the right of inmates to grieve their living conditions. He says the defendants retaliated against him in three ways: (1) they took away his medical diet; (2) one of the guards served him a meal containing pork, prohibited under Muslim practices; and (3) the guards allowed another inmate to spit on him. The case got dismissed in the district court, but the Court of Appeals (Walker, Calabresi and Chin) reinstate the lawsuit. Brandon will have his day in court.

The legal standard for constitutional retaliation claims is whether the government's response to your speech activity would deter a person of ordinary firmness from complaining or speaking out again. This separates the trivial claims from the real claims, and recognizes that silencing critics prevents those critics from speaking out again. If the inmate can prove that, then he's got an "adverse action" worth suing over.

As for the removal of plaintiff's medical diet, the Court finds that the diet was intended to address his high cholesterol and heart problems. The medical diet ensured he would be served foods to which he was not  allergic. "Given the potential consequences for Brandon's health, the removal of his medical diet could reasonably be found to be an adverse action." We can also infer the removal of the medical diet was caused by plaintiff's speech, as it happened shortly after plaintiff filed most of his grievances, and  the guards made hostile comments to plaintiff about his grievances, further demonstrating a link between his grievances and the diet shenanigans.

The same analysis applies to plaintiff's claim that the jail gave him pork in retaliation for the grievances, which themselves involved the improper pork in his diet. One way plaintiff can win the case is through evidence that he got pork when other inmates at the same meal got no pork at all in a supposedly meatless meal. This is a close call, but it's going to the jury. Finally, the Court says plaintiff can prove the guards allowed another inmate to spit on plaintiff shortly after he filed his grievances. The guards knew the offending inmate (his name as Tiny) was aggressive and had attacked another inmate. The placed him in the cell with plaintiff. Not only does plaintiff show this happened after he filed grievances, but the guards made hostile statements: "If he grieves another tray, I'm going to lock his ass up!" said one in reference to plaintiff's complaints about the pork.

Fox News loses appeal over Seth Rich conspiracy theory

I was not following the Seth Rich story, but this case lays it out in the course of a lawsuit his parents filed against Fox News and two of its reporters over the conspiracy theory that Rich, a 27 year-old Democratic Party staffer, was murdered for cooperating with Wikileaks, which ultimately released the mails that sunk Hillary Clinton's presidential campaign in 2016. The case alleges the defendants unlawfully subjected Rich's parents to extreme emotional distress in furthering the false conspiracy. The Court of Appeals says the Rich family can proceed with the case.

The case is Rich v. Fox News, issued on September 13. This case involves traditional tort theories: Intentional Infliction of Emotional Distress and Tortious Interference with Contract. These are state law principles that sometimes wind up in federal court. Intentional Infliction claims are difficult to win, and the New York Court of Appeals has never sustained such a claim, though other courts have done so. You have to prove the defendant did something so outrageous and beyond the pale that it foreseeably caused you to suffer emotional distress. This high standard ensures that most personality disputes and conflicts do not find their way into court. As for the contract claim, it's as it sounds: you cannot interfere with the contractual relationship between other people.

The Court of Appeals (Calabresi, Droney and Underhill [D.J.], summarizes the allegations, and they are not pleasant:

Malia Zimmerman (a Fox News reporter) and Ed Butowsky (a Fox News commentator) allegedly set out “to take the conspiracy theory from the fringe to the front pages and screens of the mainstream media.” Over the course of several months, Zimmerman and Butowsky recruited a Fox News contributor, Rod Wheeler, to help them infiltrate the Rich family. They convinced the Plaintiffs, Seth’s parents, to hire Wheeler as a private investigator to look into the circumstances of Seth’s death. And they then exploited Wheeler’s connection to the Riches to give credence to what Zimmerman and Butowsky knew were false accusations against Seth—which Zimmerman and Butowsky widely disseminated through Fox News. They did this, it is claimed, with full knowledge of the harm it would do to Seth’s parents.

If you do this to someone, you will get sued for IIED, as they call the Intentional Infliction cases. Judge Calabresi, an expert on American tort law, says that while IIED cases are hard to prove, "We have no trouble concluding that -- taking their allegations as true -- the Riches plausibly alleged what amounted to a campaign of emotional torture" but setting up the Riches with an "investigator" who would win their trust and allow them to advance the false story that Seth Rich was in contact with Wikileaks and that he leaked the emails himself.

As for the contractual inference claim, the Riches did sign a contract with the investigator. The investigator breached that contract in violating confidentiality with his clients. Plaintiffs allege that the breach happened because of Fox News's interference as a means to advance the false story about Seth Rich. So what we have is traditional tort theories for the modern age. Judge Calabresi would tell you that American tort law is timeless, crafted and molded by judges over the course of more than 100 years to deal with the multitude of situations that cause harm and require that someone be held responsible for that harm. These doctrines are taught in first-year law school as a means to emphasize the basic principle that if you do something negligently or intentionally and hurt someone in the process, you can be responsible for their damages. Calabresi, the former Dean of Yale Law School teachers these principles to Fox News.

Court of Appeals says Trump must face suit under the Emoluments Clause

The Second Circuit has ruled that New York City business owners can sue the president under the Emoluments Clause, the constitutional provision that says the president (and other federal office holders) cannot "accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or any foreign state." Since this case conflicts with a ruling from the Fourth Circuit, this case is a candidate for the Supreme Court.

The case is Citizens for Responsibility and Ethics in Washington v. Trump, issued on September 13. The plaintiffs own hotels, restaurants and event spaces in New York City. The lawsuit alleges they directly compete with Trump's establishments for foreign, state, and federal government clientele. They also cite statements from Trump "implicitly soliciting patronage of government officials and apparently acknowledging that, in making governmental decisions, he favors governments that patronize his businesses." They also "allege that foreign governments have taken note of, and been influenced by, the message that enriching the President by giving patronage to his establishments earns his favor." The plaintiffs claim they are losing money because Trump is profiting off the presidency.

The Emoluments Clause received little attention until a few years ago, when Trump was elected president. Most of us never even heard of the Emoluments Clause until recently. The contours of litigation under this provision are not clear, including whether you can even sue the president under it. The district court ruled that this dispute is a "political question" that cannot be resolved by the courts, but the president's lawyers for some reason are not defending that ruling on appeal. Instead, they are defending the district court's finding that plaintiffs lack standing to bring this action.

Standing is a concept unique to litigation. Since the Constitution only allows the courts to resolve actual (and not theoretical) disputes, the plaintiffs in any case have to prove they will be directly impacted by the alleged unlawful governmental activity. Over the years, standing has killed off many good lawsuits. Not this one, at least in the Second Circuit (Leval, Droney, and Walker in dissent). Plaintiffs get around the standing rules with affidavits and expert input about how the president has invited foreign governments to use his private facilities, and how those entreaties have affected them financially as his competitors. The Circuit uses the traditional standing analysis as it would any other case, except that it knows this case involves the president. My guess is the Court proceeds this way to signal that the president is not above the law, and that if traditional legal principles require him to defend himself in court, so be it.

In dissent, Judge Walker notes the Emoluments Clause has never been directly litigated since the Constitution was drafted in 1787, and that nothing in the Clause "addresses competition in the marketplace or the conduct of business competitors generally." Nor can the Clause "be considered sweeping anti-corruption provisions." Judge Walker also addresses the elephant in the room: "this case is deeply political and thus finds itself in an area where federal courts ought to tread lightly. President Trump was democratically elected by the American people -- and he was elected with his business holdings and brand prominence in full view." He adds, "Whether the courts should properly play any role pertaining to that relationship [between the president and Congress] in the context of the Clauses will have to determined in the future." Ultimately, Judge Walker finds plaintiffs have no standing.

This case is heading to the Supreme Court. As I noted the Fourth Circuit has reached the opposite conclusion on the same issue, which makes this case certworthy, which is Supreme Court-speak for worthy of a certiorari petition to the Court asking the Justices to take on the case.

Muslim inmate wins religious discrimination appeal

In a resounding win for a Muslim inmate who claims prison officials violated his religious freedoms in denying him proper meals, the Court of Appeals holds the plaintiff can prevail at trial on both his religious discrimination and retaliation claims.

The case is Brandon v. Kinter, issued on September 10. Inmates do have constitutional rights, though they are watered down in the interests of maintaining prison security and efficiency. Plaintiff claims the jail made him eat port on dozens of occasions. The jail says the pork means happened only about ten times, not frequently enough to substantially burden plaintiff's sincere religious practices. The district court said there were only ten offending meals, not enough to violate the First Amendment's Free Exercise Clause.

The Court of Appeals (Calabresi, Walker and Chin) says the jury may find plaintiff was given a pork diet on 63 occasions over the course of about seven months. If true, then plaintiff can win the case. The Court of Appeals held in 1975 that the provision of food cannot unconstitutionally burden inmate rights. More than 60 meals is enough for plaintiff to win. But the Court of Appeals takes things further, holding that even if plaintiff was given pork on ten occasions, he can still win the case. The Court reviews a line of cases holding that even a "relatively small number of violative incidents did not prevent us from finding that a prisoner's religious beliefs were substantially burdened." In reaching this holding, the Court cites cases dating to the 1970s, finding that even a single violation can burden religious freedoms on jail. While the government says ten incidents are not enough, that makes the Second Circuit uncomfortable. The Court says:

For Muslims who follow Islamic dietary laws, consuming pork is a sin at any time, regardless of whether the consumption occurs during a holiday or not. The Quran expressly commands against it. See, e.g., Quran 2:173. Accordingly, when Muslim inmates are served meals containing pork, they are faced with the choice of disobeying the commands of their faith or not eating. We have correctly recognized that it is not generally the role of courts to distinguish between important and unimportant religious beliefs. And we should be reluctant to draw lines that would distinguish and require us to give more importance to some religious commands (such as fasting during Ramadan) over others (such as abstaining from the consumption of pork). The defendants give us no good reason to make such distinctions here. Indeed, it would be absurd to require that courts, in order to determine what constitutes a substantial burden, be made to decide the number of violations of a particular religious tenet that make a sin grievous. Yet that is what the defendants’ arguments would force us to do.

The Court also engages in discussion about personal involvement of the defendants. In Section 1983 cases, you have to name the wrongdoers as defendants. In Colon v. Coughlin, 58 F.3d 865 (2d Cir. 1995), the Court of Appeals set forth a series of standards to resolve when individuals may be sued, including supervisors. There has been some debate in the federal courts over whether portions of the Colon test survive the Supreme Court's ruling in Ashcroft v. Iqbal (2009), but this ruling does not address that issue, maybe because no one briefed it.

The Court also says the jury may find that defendants were deliberately indifferent to plaintiff's rights. We all know that is the standard for these cases. But the Court of Appeals says there may be argument that Section 1983 cases can be won upon a showing of negligence, as the statute contains no state-of-mind requirement, and the Supreme Court said in Daniels v. Williams, 474 U.S. 327 (1986), that "depending on the right, merely negligent conduct may not be enough to state a claim" and declined to "rule out the possibility that there are other constitutional provisions that would be violated by mere lack of care." The Second Circuit has never squarely addressed this issue, as no one seems to brief that issue, and it was not briefed in this case. But that issue remains an open question for future litigants. Hey jailhouse lawyers, are you aware of this?

Wrongful death verdict for the police is upheld despite questionable jury charge

It really ends with the jury. When the verdict comes in and the losing side vows to appeal, those efforts usually fail. Appellate courts do not like to upset jury verdicts unless something went horribly wrong at trial. It is not enough to say you had better evidence than the losing side, as the jury is allowed to believe what it wants. The best way to challenge an adverse verdict on appeal is by attacking the jury instructions. The trial judge has no discretion to issue bad instructions. That was the strategy in this appeal.

The case is Hill v. Quigley, a summary order issued on September 5. This was a wrongful death trial. The decedent's mother brought the case. When the police tried to arrest Tyjuan Hill during a prostitution sting operation, Hill ran away and the officers tackled him, causing a struggle. Quigley was able to handcuff one of Hill's wrists, but not the other. Quigley said (the jury must have believed) that Hill pulled out a handgun and pointed it at the police. Quigley shot Hill in the back of the head. Hill lost the case, hence this appeal.

Most appellate judges used to sit as trial judges, so they appreciate the jury process and recognize that only the jury may resolve conflicting accounts. That's why most appeals from adverse verdicts fail. We tell the jury they are the ultimate factfinders. But the trial judge can mishandle the trial by making bad evidentiary rulings or issuing a foul jury charge. Hill's lawyer on appeal knows this, so he focused on the jury charge dealing with excessive force. The police are allowed to use excessive force if they reasonably perceive they or someone else is facing a significant threat of death or serious physical injury. As it happens, the instruction was problematic, allowing plaintiff's appellate lawyer to invoke Dancy v. McGinley, 843 F.3d 93 (2d Cir. 2016), which said it was prejudicial error for the judge in that excessive force case to tell the jury that "to impose liability, [the jury] was required to find that Williams ‘acted intentionally or recklessly’ rather than ‘merely negligent[ly]’ in performing the acts alleged.” That instruction was confusing "because a plaintiff alleging excessive force need not prove that the officer 'intended the results of his actions or consciously disregarded their consequences.'” (I helped brief the appeal in Dancy).

The instruction in this case was similar to the bad instruction in Dancy. But Hill loses the appeal because the bad instruction was "harmless error." The Second Circuit (Hall, Livingston and Restaini [on loan from the Court of International Trade) says "In Dancy, the instructional error was not harmless because the police officer’s lawyer suggested at trial that the broken jaw was unintentional, placing intent at issue. Here, intent was not at issue at trial. The defense theory was that the use of lethal force was justified—not that the shooting was accidental. Quigley described the shooting as an intentional act. Thus, to the extent the District Court failed clearly to convey that Quigley could be held liable even if he unintentionally caused Tyjuan’s death, that error is harmless." See how hard it is to win the appeal from an adverse jury verdict?

Inmate loses appeal under Prison Litigation Reform Act

Under the Prison Litigation Reform Act, inmates cannot file a lawsuit unless their file an internal grievance at the correctional facility. Once that grievance is denied, the inmates can then bring the lawsuit. The idea is that the grievance procedure may reduce the number of inmate lawsuits because the jail might correct the problem without litigation. It all sounds simple, but this case shows that it's not always that simple.

The case is Grafton v. Hesse, a summary order issued on August 29. Plaintiff says he wanted to file a grievance, but the jail did not make the process available to him. Here is the law on that issue, from the Supreme Court's ruling in Ross v. Blake (2016):

there are three circumstances in which an administrative remedy is unavailable: (1) “it operates as a simple dead end—with officers unable or consistently unwilling to provide any relief to aggrieved inmates;” (2) the remedy is “so opaque” that “no ordinary prisoner can make sense of what it demands;” and (3) “prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation, or intimidation.”

Plaintiff invokes the Ross exceptions because prison staff intimidated him and "put him and his co-plaintiffs 'under threat of retaliation' due to the grievances they had filed challenging prison conditions in the medical unit." This sounds like something that might happen in jail, but the Court of Appeals (Hall, Livingston and Restaini [on loan from the Court of International Trade]) is not buying it. Without affirmative measures taken by prison staff to thwart the grievance process, the inmate cannot claim that threats like this prevented him from filing a grievance. That's the rule in Ruggiero v. County of Orange, 467 F.3d 170 (2d Cir. 2006), a case that I briefed (and lost). Since "Grafton and his co-plaintiffs, in their complaint, pleaded that they had filed grievances subsequent to the staff members’ threats," he was never actually prevented from filing a grievance." While plaintiff also argues that prison staff "were consistently unwilling to provide relief and that the grievance system was a 'dead end with him being asked to supply documents that he did not have and grievances not being collected and processed as required," that argument also fails. The Court reasons:

Grafton has not provided any evidence regarding the outcome of his past grievances and indicating if or how other NCCC inmates’ grievances had been resolved. The evidence Grafton does provide—several of his past grievances containing the notation “Grievance Accepted”—undermines his argument that prison staff had made the prison grievance system a dead end by not collecting and processing grievances as required.

Megan's Law home visits do not violate Fourth Amendment

The Court of Appeals has ruled that the County of Suffolk may legally authorize a private entity to visit the private homes of registered sex offenders without a warrant in order to verify their addresses. In doing so, the Court applies the "special needs" exception to the Fourth Amendment.

The case is Jones v. County of Suffolk, issued on September 4. Megan's Law was enacted in the 1990s to require that sex offenders register their addresses with the government. They also have to update the government if they change their addresses. This allows members of the community to know if any offenders are living in the neighborhood. Jones brought this lawsuit challenging these warrantless visits under the Fourth Amendment.

The Court of Appeals (Droney, Raggi and Cabranes) upholds the program. The Fourth Amendment is vague on its face, stating only that the government cannot undertake unreasonable searches and seizures. What is "unreasonable?" The answer to that question lies with the judges who interpret the Constitution. The Supreme Court has handed down reams of case law over the years on that question. One line of cases says the government can conduct a warrantless search under the "special needs doctrine," which says the search is legal if the government has a "substantial" interest such that the Fourth Amendment's "individual suspicion" requirement need not apply. The warrantless search is also legal under the "special needs doctrine" if the government's objective is "distinct from the ordinary evidence gathering associated with crime investigation." Cases uphold searches under this doctrine are rare.

But this is one of those cases that uphold the search under the "special needs doctrine." While the plaintiff argues that these searches are improperly intended to find incriminating information, the Court of Appeals disagrees. The County says that, despite thousands of home visits, the searches have only resulted in a handful of arrests of sex offenders who did not register the correct address. "The record does not support an immediate objective of the program was 'ordinary evidence gathering associated with crime investigation.'" In addition, the information transmitted by the private groups who conduct these searches did not constitute per se evidence of a crime. The Court concludes, "the program advances the government's substantial interest in reducing sex offender recidivism by improving the accuracy of the registry. Thus, the program serves a special need 'beyond the normal need for law enforcement.'"