Thursday, July 2, 2015

Inmate wins Iqbal appeal

If you are a federal practitioner, the headline will prompt a double-take. For the rest of you, know this: Iqbal is a Supreme Court decision that makes it easier to dismiss lawsuits that do not allege plausible claims. And inmates rarely win their cases.

The case is Dotson v. Fischer, a summary order decided on June 2. Dotson said he was denied adequate medical treatment in state prison and retaliated against for complaining about it. He says that, in violation of the Eighth Amendment, prison medical authorities denied an urgent recommendation that he receive surgery to remove a cyst in his ear, prolonging his severe symptoms. One doctor did a lousy job with the surgery, and a jail official put Dotson in keeplock in retaliation for his grievances over the medical treatment. The district court dismissed the case. The Court of Appeals brings it back.

Iqbal requires detailed and plausible allegations against defendants. The Second Circuit (Parker, Sack and Carney) says the complaint "plausibly alleges a serious medical need. Dotson alleges that a CAT scan revealed a cyst in his left ear, and that Nurse Practitioner Jennifer Wrest recommended surgery and requested an “urgent” level of attention. Over the year following that 'urgent' recommendation, while the recommended surgery was delayed, Dotson complained on numerous occasions of 'vertigo, blinding headaches, extreme pain in his left ear, and increased hearing loss.'  When the cyst was finally removed, one year later, it was of 'significant size.'" These allegations are enough to show plaintiff was in "extreme pain."

The complaint also establishes that the defendants acted with deliberate indifference to plaintiff's medical needs. "Dotson asserts that Drs. Dinisio and Koenigsmann reviewed Wrest’s evaluation and recommendation that his condition demanded 'urgent' care and rejected it, apparently without causing him to be examined again in person or taking any further step. ... Allegations of delayed medical care may support a finding of deliberate indifference to a serious medical need, and allegations that delayed treatment resulted in serious harm may bear on the reasonableness of an inference of a defendant’s knowledge of the risks to which he or she subjected the plaintiff. We believe Dotson’s allegations suffice at this early stage of the litigation."

Plaintiff also gets back his First Amendment claim. "Although Dotson’s pleadings on this matter are not a model of clarity, they suggest sufficient temporal proximity between Dotson’s complaints of inadequate medical care and Sticht’s decision placing Dotson in keeplock to support Dotson’s retaliation claim at this pleading stage."

Wednesday, July 1, 2015

Inmates have rights, too

Inmates have the constitutional right to out-of-cell exercise while in jail. The jail can restrict the inmate's exercise for security reasons. In this case, the inmate says that jail officials in Connecticut had a policy of requiring inmates with disciplinary problems to be handcuffed behind their backs during their out-of-cell recreational periods.

The case is Gardner v. Murphy, a summary order issued on June 2. The defendants tried to have the case dismissed on qualified immunity grounds, but the Court of Appeals allows the case to proceed. This raises my eyebrows since the Second Circuit has been dismissing many cases on qualified immunity grounds lately.

Public defendants are immune from suit if the law was not clearly-established at the time of the violation. You don't need a case on all-fours to show the law was clearly-established, but the constitutional violation must have been sufficiently apparent to put public employees on notice that they are breaking the law. Reviewing the case law governing inmate exercise, the Court of Appeals frames it this way:

Taken together, our earlier decisions have clearly established the right for inmates to have some meaningful opportunity for exercise unless the prison has a legitimate safety justification and has adequately considered feasible alternatives. The district court in this case defined the clearly established right similarly and therefore correctly stated “the level of generality at which the relevant ‘legal rule’ is to be identified.”
The question here, then, is whether reasonable persons in defendant's position would have understood that their conduct violated clearly-established law.For purposes of this appeal, the Second Circuit assumes there was no valid safety rationale to justify placing plaintiff in handcuffs during recreation time. In light of that, the Court says,

if it finds unpersuasive a proffered safety justification, a reasonable jury could readily conclude that a corrections official acted unreasonably by permitting an inmate to exercise only in restraints. After all, we do not see how a prison policy that required every inmate to remain in restraints during out-of-cell exercise could comport with the clearly established scope of the Eighth Amendment as to a particular inmate, unless there were a persuasive safety justification for that inmate’s restraints.

Tuesday, June 30, 2015

Inmate beating can proceed on the merits

This guy was beaten up at the Suffolk County Jail by correction officers who objected when plaintiff exchanged pleasantries with another inmate who was convicted of killing a police officer. His case against the officers was dismissed in the district court because plaintiff did not exhaust his administrative remedies at the jail before filing suit. The Court of Appeals reinstates the case.

The case is Hubbs v. Suffolk County Sheriff's Department, decided on June 2. The Prison Litigation Reform Act requires inmates to file a grievance with the jail over their prison conditions before they can sue the officers in court. The idea is that the jail might resolve the problem before the case reaches court or at least make some preliminary findings that might assist the court in deciding the case. An inmate's failure to comply with the PLRA is the reason many of these lawsuits never see the light of day. This one is allowed to proceed.

Hubbs did not file a grievance. He argues that he did not have to because the inmate handbook says the jail does not entertain grievances about matters that fall outside the warden's control.The handbook does not entitle the County dismissal. It is not clear whether what happened to Hubbs fell within the warden's control. The County also cites an affidavit from a jail official that said a grievance "concerning an act or occurrence that took place while the inmate was detained in the County Court Holding facility would be accepted by the grievance coordinator and a determination would be made regarding what action should be taken to resolve and rectify the matter." The Court of Appeals says this affidavit is vague and "does not address whether any remedies were in fact available for such a grievance."

After scrutinizing the affidavit in other ways and determining that it just doesn't cut the mustard, the Court of Appeals (Calabresi, Cabranes and Raggi) says "on the record before us, no administrative remedies were available to [plaintiff], and there was thus nothing for him to exhaust. Hubbs is therefore free to proceed with the merits of his suit in federal court."

Monday, June 29, 2015

Must the police reasonably accommodate a disability in a use-of-force case?

The Fourth Amendment protects you from police misconduct. But not every misconduct case reaches a jury. The officers can assert qualified immunity, which means they are immune from suit if they acted reasonably under the circumstances. In this case, the Supreme Court grants police officers qualified immunity even though they used force against the plaintiff, a disabled woman with schizoaffective disorder.

The case is City of San Francisco v. Sheehan, decided on May 18. After Sheehan behaved erratically at a group home and claimed to have a knife, the police showed up. Sheehan threatened them, the officers retreated and Sheehan shut the door to her room. The officers then worried that Sheehan might have more weapons in her room and might escape out the window. The officers reentered the room and pepper sprayed Sheehan. That did not subdue Sheehan, so an officer shot her twice, but she did not collapse. So another officer fired multiple shots and someone else kicked the knife from her hand. Although Sheehan was disabled, the officers did not consider whether to give her a reasonable accommodation rather than use force.The Court says the officers acted appropriately under the circumstances; this woman acted erratically and threatened to use a knife. But that does not fully answer the question here: what about any accommodations? 

The Ninth Circuit said the officers could have accommodated plaintiff by "respecting her comfort zone, engaging in non-threatening communications and using the passage of time to defuse the situation rather than precipitating a deadly confrontation." The Supreme Court is not buying it. The Americans with Disabilities Act entitles you to a reasonable accommodation if you have a disability, but remember what I said about qualified immunity. When the police have to act fast, they cannot always ponder the situation even if 20/20 hindsight suggests they should have. And if the law is not clearly established on the factual issues presented to the officers, they cannot be held liable for guessing wrong about what a court will say about it later. Cases in this area are not clear enough to put the officers on notice that they had to consider alternative ways to deal with Sheehan in light of her disability, rather than using force.

Friday, June 26, 2015

Under PLRA, three-strikes applies even if third case is on appeal

In an effort to curtail inmate litigation, Congress two decades ago passed the Prison Litigation Reform Act, which among other things limits when destitute inmates can seek "poor persons' status" in order to waive their filing fees. Three frivolous lawsuits and say goodbye to that entitlement. This Supreme Court asks What is a strike?

The case is Coleman v. Tollefson, decided on May 18. In Forma Pauperis is the official designation for poor persons' status. Inmates can file lawsuits over their prison conditions, but three frivolous cases is the limit if want to waive the filing fee. In this case, the inmates brought three such lawsuits. Strike three was on appeal when he tried to file another case without paying the filing fee. He argued that since strike three was on appeal, it did not yet count as a strike. After all, the case is on appeal and hope springs eternal, right?

Wrong, a unanimous Court says. A dismissal does not mean an affirmed dismissal. "The linguistic term 'dismiss,' taken alone, does not normally include subsequent appellate activity." And the PLRA "describes dismissal as an action taken by a single court, not as a sequence of events involving multiple courts." And, Justice Breyer says, "Our literal reading of the 'three strikes' provision also is supported by the way in which the law ordinarily treats trial court judgments. Unless a court issues a stay, a trial court's judgment (say, dismissing a case), normally takes effect despite a pending appeal. And a judgment's preclusive effect is generally immediate, notwithstanding any appeal."

But what if the strike three appeal is actually successful? The Court addresses that possibility, noting it is a remote possibility:

We recognize that our interpretation of the statute may create a different risk: An erroneous trial court dismissal might wrongly deprive a prisoner of in forma pauperis status with respect to lawsuits filed after a dismissal but before its reversal on appeal. But that risk does not seem great. For one thing, the Solicitor General informs us that he has been able to identify only two instances in which a Court of Appeals has reversed a District Court’s issuance of a third strike. For another, where a court of appeals reverses a third strike, in some instances the prisoner will be able to refile his or her lawsuit after the reversal, seeking in forma pauperis status at that time. Further, if the statute of limitations governing that lawsuit has run out before the court of appeals reverses the third strike, the Solicitor General assures us that prisoners will find relief in Federal Rule of Civil Procedure 60(b). According to the Solicitor General, a prisoner may move to reopen his or her interim lawsuits (reinstating the cases as of the dates originally filed) and may then seek in forma pauperis status anew. In any event, we believe our interpretation of the statute hews more closely to its meaning and objective than does Coleman’s alternative.

Thursday, June 25, 2015

For collateral estoppel fans

If you represent public employees in discrimination cases, one hurdle to victory is any findings of misconduct against him at a departmental due process hearing. If the hearing officer says plaintiff did something wrong, can he still claim he was the victim of discrimination? Sometimes he can.

The case is Leon v. City of New York, a summary order decided on May 22. Following her termination, Leon asserted claims for discrimination and retaliation. But at a Section 3020-a hearing, it was found that Leon did something wrong at work. What did she do wrong? The decision does not say. But whatever she did, the district court held it prevented her from suing for discriminatory and retaliatory discharge because it undercut her prima facie case.

There is some surface logic to the district court's ruling. To make out a prima facie case of discrimination, plaintiff has to show she was qualified for the job but was fired under circumstances creating an inference of discrimination. If a neutral hearing officer says plaintiff did something wrong at work, then how can she claim discrimination?

The law does not always reflect surface logic. You can still be the victim of discrimination if you screwed up at work. Someone else may have engaged in the same misconduct without termination. Being singled out is prima facie evidence of discrimination. The hearing may have been fair, but it may not have addressed the issue of whether plaintiff was fired for discriminatory reasons. Applying settled collateral estoppel rules, the Court of Appeals (Parker, Kearse and Wesley) says:

There is no indication that the Section 3020-a hearing addressed, much less “actually decided,” whether the charges leading to Leon’s termination were driven, even in part, by discriminatory or retaliatory intent. The court’s error thus stems from the faulty assumption that termination for cause necessarily precludes the possibility of termination motivated by unlawful animus. “[T]he hearing officer’s determination that [the plaintiff] had engaged in the charged conduct, and that these violations called for h[er] termination, does not preclude a jury from later finding that [the plaintiff] was also terminated at least in part because of [discriminatory reasons]. The plaintiff could be successful on the [discrimination or retaliation] claims even if the jury were to accept that there were legitimate reasons for terminating h[er], too.” Matusick v. Erie Cnty. Water Auth., 757 F.3d 31, 47 (2d Cir. 2014).

Tuesday, June 23, 2015

Pro se title VII plaintiff wins sexual harassment appeal

This sexual harassment case has enough evidence for a trial even though the district court dismissed it on a motion for summary judgment. The issues are so clear-cut that the Court of Appeals does not issue a full opinion but instead hands down a summary reversal.

The case is Hand v. New York City Housing Preservation and Development, issued on May 26. Hand represents herself pro se on this appeal. Some of her other discrimination claims were properly dismissed on summary judgment, but not the hostile work environment claim.

Hand alleges that her "supervisor felt her breast and repeatedly invaded her personal space." That's enough to win at trial, the Court of Appeals (Lohier, Winter and Carney) says. We know that a single incident can give rise to a hostile work environment case if that incident is severe. The Second Circuit ruling tells us very little about what actually happened in the workplace. Here is how the district court summarized her claim:

Plaintiff’s hostile work environment claim is based on the allegations that (1) plaintiff was punched in the back when she fought with her coworker over an open window and subsequently suspended plaintiff without pay in 2009, (2) one of defendant’s employees felt plaintiff’s breast and often pulled up a chair directly beside plaintiff, (3) defendant transferred plaintiff to 701 Euclid Avenue in March of 2009, (4) defendant incorrectly marked plaintiff AWOL while she was on medical leave between April 16–17, 2009, and (5) defendant used plaintiff’s likeness in an “About HPD” pamphlet without her permission in November of 2009. Plaintiff’s failure to establish that these allegations occurred because of her race or sex is fatal to her hostile work environment claim.
For one reason or another, the district court said these incidents were not enough to support the claim. As for the breast-touching, the district court said,

[P]laintiff cannot establish a hostile work environment based on the lone incident where an HPD employee felt her breast because a reasonable employee would not find the alleged harassment sufficiently hostile or abusive to alter the conditions of her workplace. See Mormol v. Costco Wholesale Corp., 364 F.3d 54, 58–59 (2d Cir. 2004) (finding that although a supervisor repeatedly demanded sex from an employee, threatened to fire her, made her return early from vacation, and cut her work hours, the incidents of harassment “were few and occurred over a short span of time” and thus “not sufficiently severe to overcome its lack of pervasiveness”).
The Court of Appeals disagrees, although it notes that a co-worker had "repeatedly invaded" plaintiff's personal space. Although the district court said that "Plaintiff’s allegations consist of isolated incidents occurring in multiple HPD offices with different perpetrators," the Second Circuit appears to disagree.