Inmate repels qualified immunity in 2d Circuit

Yes, inmates have rights. No, they are not easily proven. Even if the inmate gets shafted, the correction officers and prison doctors can invoke qualified immunity, which dismisses the case unless plaintiff can show the defendants violated clearly-established rights in light of the facts of the case. This inmate survives that formidable hurdle, the bane of all plaintiffs' civil rights lawyers.

The case is Neary v. Wu, a summary order issued on February 19. After plaintiff began experiencing severe pain in his breast and found irregular lumps, defendants prescribed medication that did not alleviate the pain, denied him a recommended surgical consultation to consider removal of the breast tissue, refused him a soy-based diet designed to reduce his symptoms and abruptly stopped a narcotic pain medication that caused withdrawal symptoms. This deliberate indifference claim proceeds under the Eighth Amendment.

Plaintiff can proceed with his case, the Second Circuit (Winter, Pooler and Abrams [D.J.]) says, because the case law is clear that  "prisoner-plaintiff establishes a 'serious medical need' where she suffered 'chronic pain the magnitude of which probably falls somewhere between annoying and extreme.'" That case is Brock v. Wright, 315 F.3d 158 (2d Cir 2003). Another case, McKenna v. Wright, 386 F.3d 432 (2d Cir. 2004), holds that doctors who fail to run required tests despite obvious symptoms, fail to initiate necessary and apparent treatment, fail to arrange follow-up visits despite doctor's orders and deny treatment pursuant to flawed policies cannot invoke qualified immunity, since these derelictions can support a deliberate indifference case.

Plaintiff satisfies these standards, at least for now, at the pleading stage, where all facts are deemed true. Maybe defendants can argue qualified immunity again once discovery is over, for for now this case moves forward.

Circuit grants habeas in murder-for-hire case based on recanted testimony

This habeas corpus case is quite complicated. It started with a drive-by shooting in 1993 and various eyewitnesses who said the defendant was guilty of a murder-for-hire. It ends with the U.S. Court of Appeals more than 25 years later finding the defendant was denied a fair trial. Along the way, we have some interesting holdings.

The case is Fernandez v. Capra, decided on February 22. Under the federal habeas law, state court convictions cannot be attacked as unconstitutional in federal court unless the state court unreasonably applied settled Supreme Court authority. Here, we have an arresting officer who, it turns out, was under investigation for selling drugs at the time of the criminal trial, and eyewitnesses who recanted their testimony post-trial.

As for the cop, he was accused of selling cocaine to another officer before he was actually hired as an officer. The prosecution did not tell the defendant in the case about the officer's alleged drug dealing until a few days after defendant was found guilty of murder, on the basis that authorities were skeptical about the drug-dealing allegations. But, the Second Circuit says, withholding that Brady material until after the defendant was convicted in this murder case was unconstitutional, as it was up to defendant and his lawyer -- and not the prosecution -- to exercise judgment in determining whether the defendant should make use of it on cross-examination. However, that error was harmless in the overall scheme of things because the bad-officer's testimony was not critical to the case against Fernandez.

But Fernandez has other arguments in seeking a new trial. Two eyewitnesses recanted their testimony post-trial, claiming the drug officer coerced their identification testimony. The Second Circuit agrees that one brother's recantation was incredible because he was "extremely evasive" at the post-trial hearing on this issue. As for the other eyewitness, Canela, he claimed post-trial that Fernandez was not the shooter and he had never seen him before in his life, contrary to his trial testimony. He said he felt pressure from the detectives to lie at the trial. The Court of Appeals gives little weight to the criminal court's conclusion that Canela tried too hard to be convincing, and the Circuit instead says that Canela (who was 18 at the time) overall gave credible testimony at the post-trial hearing as to why he lied and what he actually saw on the day of the shooting and how the detectives pressured him into identifying Fernandez. As the Second Circuit says there is a good chance Canela's perjury made a difference at trial, Fernandez wins his habeas petition, as the state court's rejection of Canela's recantation testimony was an "unreasonable determination of the facts in light of the evidence presented" under the habeas statute. Having read many Second Circuit habeas rulings over the years, I cannot remember the last time someone prevailed at the Court of Appeals on this basis. I would say Fernandez had some damned good lawyers working for him in his appeal.

Some guidance on naming John Doe defendants in Section 1983 cases

One of the pitfalls in handling civil rights cases under Section 1983 is that you have to identify the correct defendant, usually a police or correction officer. It is not enough to name the officer's employer, as Section 1983 does not recognize respondeat superior liability, that is, the employer is not automatically liable just because one of its employees violated the law. That brings us to the pitfalls of naming John Doe defendants as placeholders until the plaintiff can figure out who the real defendant is.

The case is Ceara v. DOCCS Officer Joseph Deacon, issued on February 21. Under Barrow v. Weathersfield Police Dept., 66 F.3d 466 (2d Cir. 1995), you have to formally identify the John Doe defendants in your complaint within three years of the civil rights violation (which is the statute of limitation in New York). This is so because identifying the John Doe defendant is the equivalent of adding a new party , and new parties have to be added within the statute of limitations. On the other hand, if you are correcting a mistake in the caption (i.e., you named the wrong person), then the statute of limitations stopped running the day you filed the lawsuit provided the real defendant knew or should have known you intended to name him as the defendant all along. Further complicating things, in Krupski v. Costa Crociere, 560 U.S. 538 (2010), the Supreme Court said that "a plaintiff's knowledge of the existence of a party does not foreclose the possibility that she has made a mistake of identity about which that party should have even aware." As Krupski is a mistaken-defendant case and not a John Doe replacement case, it does not overrule Barrow. I know this is all very confusing, but if you handle Section 1983 cases, I also know you are reading this very attentively.

What happened here is that Plaintiff Ceara was an inmate at Fishkill Correctional Facility. He claims a correction officer physically assaulted him for no good reason. As plaintiff as tumbling down the concrete staircase as a result of this assault, he did not have the wherewithal to look at the officer's name tag to determine who he would name in his Section 1983 lawsuit. So plaintiff named this defendant "John Doe," noting further in the caption that the bad-guy worked on a particular shift on the day of the assault and that the bad-guy's brother -- last name "Deagan" -- also worked at the prison. When plaintiff finally got the correct name, "Joseph Deacon," he identified him in the amended complaint, but only after the three-year statute of limitations expired. The district court said this was too late, that plaintiff was simply naming the John Doe defendant outside the three-year limitations period. But the Second Circuit (Parker, Cabranes and Matsumoto (D.J.)), disagrees and reinstates the case.

The Second Circuit holds this is not really a John Doe placeholder case but a mistake case, as plaintiff did provide some of the defendant's identifying characteristics in the caption and almost got the last name right, referring to John Deacon as "Deagan." Unlike the John Doe cases, no new party was added when plaintiff amended the complaint. This means the amended complaint relates back to the original complaint, and plaintiff has his lawsuit back.

Supreme Court expands scope of excessive fines clause

This may be the case of the year in the Supreme Court, barring some Mueller-related case involving Trump. The Supreme Court holds that the excessive fines clause of the Eighth Amendment applies to the states and not just the federal government.

The case is Timbs v. Indiana, issued on February 20. You probably didn't know the excessive fines clause did not apply to the states prior to this decision. You probably didn't even know we had an excessive fines clause to begin with. But we do, and it prohibits the government from really sticking it to criminal defendants, such as in this case, where Timbs pleaded guilty in state court to drug dealing and the government took his Land Rover SUV, which he purchased from a family inheritance but which the authorities said he used to distribute drugs. The SUV cost $42,000, more than four times the maximum fine.

When the Bill of Rights were originally drafted in 1791, they only applied to the federal government. The states were free to do what they wanted without any constraints under the Bill of Rights, which include the rights of free speech and religion, our beloved Second Amendment, and all the criminal procedure protections set forth in the Fourth through Eighth Amendments. After the Due Process Clause of the Fourteenth Amendment was ratified following the Civil War, the Supreme Court began to incorporate parts of the Bill of Rights into that amendment, holding that they regulate state behavior, which is why small towns cannot violate free speech even though the First Amendment explicitly regulates Congress. Incorporation has been a slow process, as the Court only recently held the Second Amendment regulates state and local governments. It now gets around to the excessive fines clause of the Eighth Amendment, and as Notorious RBG says, "for good reason, the protection against excessive fines has been a constant shield throughout Anglo-American history: Exorbitant tolls undermine other constitutional liberties," such as when excessive fines are used to retaliate against political enemies.

Justice Thomas concurs, stating that what really incorporates the excessive fines clause against the states is the Privileges and Immunities Clause of the Fourteenth Amendment, which states, "no state shall make or enforce any law which abridge the privileges or immunities of citizens of the United States." While in Thomas' view the Court has narrowed the scope of the P & I clause, litigants have had to enforce rights against the states by other means, including the Due Process Clause. The problem with that, Thomas says, is that the Due Process Clause only speaks to "process" and the Court has "struggled to define" what substantive rights it actually protects. What happens under this vague constitutional provision is the Court has little to work with in defining rights, creating some of the Court's most notoriously incorrect decisions," including Roe v. Wade and Dred Scott v. Sandford. Yes, Justice Thomas ranks Roe among the worst cases ever, along side Dred Scott, considered the most racist and worst Court ruling of all-time.

Justice Thomas wants the Supreme Court to revisit cornerstone of free speech law

Justice Thomas wants the Supreme Court to reconsider its holding in New York Times v. Sullivan, the 1964 landmark ruling that says public officials cannot sue people for libel unless they can prove actual malice motivated the speaker to utter falsehoods about him. Since Sullivan makes it almost impossible for public officials to bring libel actions, and it is the bedrock of political criticism in this country, Thomas' proposal would represent a dramatic change in consititutional law.

Justice Thomas issued his decision in McKee v. Cosby on February 19, concurring in the Supreme Court's decision not to hear a libel case brought against one of Bill Cosby's rape accusers. While Thomas agrees the Court shouldn't take this particular case, he uses this opportunity to lay out a roadmap for overturning Sullivan, which would make it easier for public officials to sue their critics if they got the facts wrong. Thomas' musings on the correctness of the Supreme Court's public figure libel law is consistent with his view that many constitutional issues must be decided in accordance either with what the framers had in mind when they drafted the Constitution in the 18th Century or what the the state of the law was at the time.

Sullivan holds that, to win their libel suits, public officials must prove the speaker got his facts wrong because of actual malice, a notoriously high burden of proof. Actual malice means more than a simple mistake in getting your facts wrong; it means reckless disregard for the truth, or the speaker is just making it up to hurt someone else.

As Justice Thomas sees it, the framers of the First Amendment did not intend to graft an "actual malice" standard into libel cases, and libel cases were not even constitutionalized until 1964, when Justice Brennan famously said the new standard in Sullivan was necessary to ensure robust political debate in the United States. Yet, Thomas says, Sullivan "and the Court's decisions extending it were policy-driven decisions masquerading as constitutional law. Instead of simply applying the First Amendment as it was understood by the people who ratified it, the Court fashioned its own 'federal rules' by balancing the 'competing values at stake in defamation suits,'" an approach that does not comport with the original meaning of the First Amendment, ratified at a time when public figures did not have to satisfy any heightened liability standard in order to win their cases. Back then, all public officials had to do was to prove the offending statement was false and "subjected him to hatred, contempt, or ridicule." As legal thinkers saw it back then, Justice Thomas says, libels against public officials were considered even more serious than libels against the common man, "because the people may be deceived and reset the best citizens to their great injury, and it may be the loss of their liberties."

Thomas' historical research does say that political critics did have "a privilege to comment on public questions and matters of public interest," which extended "to the public conduct of a public man" and to the character of public officials "so far as it may respect his fitness and qualifications for the office." But this privilege would not let all critics off the hook; the public official could still win the case if the facts were false, "and the privilege did not afford the publisher an opportunity to defame the officer's private character."

No other Justice joins Thomas' opinion, making him a lone wolf on reconsidering Sullivan. He does quote from the late Justice White's prior criticisms of Sullivan, even though White had joined the Sullivan opinion. Justice White apparently reconsidered support for Sullivan in his later years. While Thomas' opinion is a far cry from an actual Supreme Court ruling that would over turn a 50+ year of robust political criticism in the United States, were the Court to adopt his views on this issue (and I doubt it ever will), it would change political dialogue in this country forever.

Inmate lawsuit is good enough for Rule 8 pleading requirements

One of the conservative Supreme Court justices said years ago that the problem with pro se inmate lawsuits is that the inmates sometimes become litigation machines who file lawsuit after lawsuit because they have nothing better to do. That may be, but sometimes these cases have merit. At a minimum, sometimes these cases are sufficiently pled so the inmates can proceed with their cases. In this case, the Second Circuit says the inmate's complaint is good enough for discovery.

The case is Harnage v. Lightner, issued on February 15. Plaintiff is an inmate in state prison in Connecticut. He wants to sue over the deliberate indifference to his serious medical needs. The district court said the complaint was not sufficiently detailed and did not satisfy the rule that lawsuits must place the defendants on notice of the claims, but the Court of Appeals (Calabrese, Cabranes and Chin) says the plaintiff actually states a claim.

Under Rule 8 of the Federal Rules of Civil Procedure, the complaint must contain "a short and plain statement of the claim showing the pleader is entitled to relief." Under Second Circuit law, the plaintiff must at a minimum "disclose sufficient information to permit the defendant to have a fair understanding of what the plaintiff is complaining about and to know whether there is a legal basis for recovery."

While the complaint in this case does not provide definite or specific dates on which plaintiff's requests for medical treatment were made, or any dates when anyone at the jail ignored his requests, the amended complaint "substantially complies" with Rule 8 because it "identifies discrete defendants and the actions taken by defendants that purportedly violated Harnage's Eighth Amendment rights." In particular, plaintiff alleges that he sought treatment from named staff members and that he did not receive effective treatment for his medical condition, i.e., providing the right prescriptions he had been promised. The failure to provide dates is not fatal under Rule 8 where, as here, the plaintiff does not have access to his medical records. So, while the complaint is not great, "it is not the incomprehensible 'labyrinthian prolixity of unrelated and vituperative charges' that Rule 8 was intended to curb."

2d Circuit grants habeas petition in murder case

Convicted felons are allowed to file habeas corpus petitions, which claim their state-court convictions were unconstitutional. But these petitions are hard to win, as the case has already been through the state court appellate process, and federal judges are required by law to give state court judges some leeway in interpreting the Constitution. So it's always news when the Second Circuit rules that a conviction was in fact unconstitutional, which is what happened here in this homicide case.

The case is Orlando v. Nassau County District Attorney's office, issued on February 11. The district court rejected the habeas petition, but the Court of Appeals holds that trial errors in state court denied Orlando's clearly-established constitutional right under the Sixth Amendment's confrontation clause.

The jury said Orlando was guilty over his role in the murder of a man, Calabrese, when Orlando and another witness Jeannot, went pay Orlando his huge gambling winnings. Jeannot told the police that Orlando had paid him to kill Calabrese. At Orlando's trial, the police testified that Jeannot himself was the killer, but that Orlando had paid him. Jeannot did not testify at the trial, however, so when the police testified about this "admission," the trial court gave the jury a limiting instruction, telling them that the testimony was only relevant in understanding why Orlando then gave a different account of what happened on the day of the murder.

The Second Circuit (Droney and Jacobs, with D.J. Shea in dissent) says the trial court clearly violated the confrontation clause and that the limiting instruction was not enough to ensure Orlando got a fair trial. After all, this hearsay account pinned the murder on Orlando. Hey, you can't throw a skunk in the jury box and ask the jury not to smell it. The Supreme Court has already stated that "when a non-testifying witness's confession 'expressly' implicates the defendant, 'the risk that the jury will not, or cannot, follow instructions to limit its consideration of the evidence for a proper purpose is so great, and the consequences of failure to vital to the defendant, that the practical and human limitations of the jury system cannot be ignored.' When a jury hears such express incriminations, even if given a 'clear' limiting instruction, 'the effect is the same as if there had been no instruction at all.'"