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Second Circuit Reverses Dismissal of NY Prisoner’s Due Process Claim on Grounds It Was Abandoned on Appeal

by David M. Reutter

In a ruling issued on January 19, 2021, the U.S. Court of Appeals for the Second Circuit ruled that a lower court erred in dismissing a prisoner’s due process claim on grounds he abandoned it on appeal. The district court also erred in proceeding as if a reversal of its earlier order by the Second Circuit in a previous appeal was anything less than a reversal of the order in its entirety.

The Court’s opinion was issued in an appeal filed by Kerry Kotler, a former prisoner at New York’s Bare Hill Correctional Facility. Kotler’s civil rights lawsuit was filed on October 27, 2006. He alleged First and Fourteenth Amendment violations for retaliation and violations of his Fourteenth Amendment due process rights during his disciplinary hearing.

Specifically, Kotler alleged that Defendants planted a shank in his cell on November 1, 2003, in retaliation for his work on the grievance committee. He asserted that then-Superintendent John Donelli was frustrated with Kotler’s conduct and learned that a weapon-possession infraction would compel Kotler’s dismissal as a representative on the committee.

The due process claim in Kotler’s suit was based on the appointment of Deputy Superintendent of Security Lee Jubert—whom Kotler alleged was complicit in the alleged set up—to preside over Kotler’s disciplinary hearing.
On two separate occasions, the Second Circuit has heard appeals in the case. In the first, the Court vacated the district court’s order granting the defendants’ motion for summary judgment. The second appeal rejected the defendants’ collateral estoppel claim based on Kotler’s denial in a state action challenging the disciplinary hearing.

The district court followed a November 22, 2013, magistrate recommendation to dismiss the claim against Donelli because Kotler failed to file for substitution not later than 90 days after he was given notice of Donelli’s death. Then, two days before a trial was to start on November 20, 2016, the district court also dismissed Kotler’s due process claim against Jubert.

After a three-day trial in which Kotler appeared pro se with stand-by counsel, the jury found for the defendants on the remaining retaliation claim. Kotler appealed.

The Second Circuit was confronted with three issues. In the first, it found no error in dismissing Donelli based on Federal Rule of Civil Procedure 25(e), which provides: “if a motion [for substitution] is not made within 90 days after the service of a statement noting the death, the action by or against the decedent must be dismissed.”

Next the Court also found Kotler received a fair trial on his retaliation claim.

However, it found error in the dismissal of the due process claim against Jubert, saying that Kotler did not abandon that claim on his first appeal.

“In the usual course, it is the appellate court—not the district court—that decides the question of appellate abandonment,” the Court wrote. “Nothing in our opinion suggested that any portion of the district court’s judgment remained undisturbed.” So the district court must conduct proceedings that conform to the mandate.

While there was overlap in Kotler’s retaliation and due process claims, “the overlap was not complete,” the Court found. “It is certainly possible that a jury could have found that Kotler’s hearing was not impartial—on the theory that the hearing officer was biased, provided unfair process, or otherwise—without finding a broader retaliatory conspiracy.’”

Thus the district court’s order was affirmed in part and reversed in part. See: Kotler v. Jubert, 986 F.3d 147 (2d Cir. 2021).

On December 6, 2021, the U.S. Supreme Court declined to grant a writ of certiorari in the case. See: Kotler v. Jubert, 2021 U.S. LEXIS 6061.

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Kotler v. Jubert

Kotler v. Jubert