$18,000 for New York Prisoner Who Alleged Guards Planted Shank in Cell
On July 8, 2024, New York prisoner Kerry Kotler finally achieved a small measure of justice from the state Department of Corrections and Community Services (DOCCS) officials whom he accused of planting incriminating evidence in his cell over 20 years earlier. Kotler is the rare prisoner exonerated of one conviction only to be reincarcerated on another, and even after completing that second sentence, he has continued to be held under state laws permitting involuntary civil commitment.
After a homemade knife, or shank, was found in his cell at Bare Hill Correctional Facility in November 2003, Kotler claimed that it had been planted there by guards—including then-deputy Superintendent of Security Lee Jubert—as a pretext for removing him from the prison’s grievance committee. Jubert and others, including then-Superintendent John Donelli, allegedly conspired to set Kotler up and then penalize him administratively in order to remove him from the committee. Worse, when Kotler’s grievance was heard against Jubert, the guard was on the disciplinary committee, which unsurprisingly then dismissed it.
The prisoner filed suit pro se in federal court for the Northern District of New York just under three years later, in October 2006, alleging First and Fourteenth Amendment violations for retaliation and violations of his Fourteenth Amendment due process rights during the disciplinary hearing at which he was found guilty of possessing the planted shank.
Over the next 15 years, the case made three trips to the U.S. Court of Appeals for the Second Circuit, which reversed grants of summary judgment to Defendants in June 2010 and June 2013. See: Kotler v. Donelli, 382 F. App’x 56 (2d Cir. 2010); and 528 F. App’x 10 (2d Cir. 2013). The district court then dismissed Plaintiff’s due-process claim just before a November 2016 trial, after which the jury returned a verdict for Defendants on his retaliation claim. But on appeal, the Second Circuit again found error in the district court’s decision.
The district court had decided that Kotler’s due-process claim died when he failed to preserve it after his second trip to the Second Circuit. But the higher Court called foul on that. “In the usual course, it is the appellate court—not the district court—that decides the question of appellate abandonment,” it said in its January 2021 ruling. “[T[he overlap was not complete” between Kotler’s retaliation claim and his due-process claim, and it was “certainly possible” that a jury could have found that his due process-rights were violated, even if there was insufficient evidence for retaliation. Therefore the Court revived the due-process claim, as PLN reported. [See: PLN, Jan. 2022, p.41.]
The parties then proceeded—slowly, and without Donelli, who died in 2012—to reach their settlement agreement. Under its terms, DOCCS agreed to pay Kotler $18,000. He had been represented since January 2023 by appointed pro bono counsel from attorneys Timothy Chorba, Christopher E. Buckey and Nicholas J. Fasso of Cullen & Dykman LLP in Albany. See: Kotler v. Jubert, USDC (N.D.N.Y.), Case No. 9:06-cv-01308.
Kotler, a Long Island fisherman, was 23 when he was sentenced to prison for a 1981 rape, and he was 34 when exonerated on that charge by DNA evidence in 1992. He was awarded $1.5 million for his 11 years of wrongful incarceration. But his DNA then linked him to another rape, for which he was returned to prison in 1995. He was released in 2013 but immediately ordered held under strict and intensive supervision and treatment (SIST) because his risk of committing a new sex offense was deemed too high to let him go—a decision ultimately confirmed on December 6, 2023, by the state Supreme Court Appellate Division, Second Department. See: Matter of State of N.Y. v. Kerry K., 2023 NY Slip Op 06255 (App. Div.).
Meanwhile, at Marcy Correctional Facility in 2017, Kotler accused guards C. Boley and J. Carreras of conspiring to find him guilty on a false disciplinary charge, for which he was held in isolation for three months. Their alleged reason, once again, was to disrupt his work on the grievance committee. He sued, but the federal court for the Southern District of New York granted Defendants’ motion to dismiss the claim. The Second Circuit, however, reversed that ruling on September 30, 2022. See: Kotler v. Boley, 2022 U.S. App. LEXIS 27411 (2d Cir.).
There has been no activity in the case since December 2024. The DOCCS did not list Kotler as a prisoner in April 2025. PLN will update developments if and when they become available. See: Kotler v. Boley, USDC (S.D.N.Y.), Case No. 7:17-cv-00239.
Additional source: New York Times
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