12-1636-pr
Kotler v. Donelli
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON
OR AFTER J ANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY F EDERAL R ULE OF A PPELLATE P ROCEDURE
32.1 AND THIS COURT’S L OCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED
WITH THIS COURT, A PARTY MUST CITE EITHER THE F EDERAL A PPENDIX OR AN ELECTRONIC DATABASE ( WITH
THE NOTATION " SUMMARY ORDER "). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL .
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
the 19th day of June, two thousand thirteen.
PRESENT: DENNY CHIN,
RAYMOND J. LOHIER, JR.,
Circuit Judges,
JOHN F. KEENAN,
District Judge.*
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KERRY KOTLER,
Plaintiff-Appellant,
-v- 12-1636-pr
JOHN DONELLI, Superintendant, Bare Hill
Correctional Facility, L. JUBERT, Deputy
Superintendant of Security, W. DANN,
Correction Sergeant, DARWIN DAILY,
Corrections Officer, DAVID CHARLAND,
Corrections Officer,
Defendants-Appellees,
LINDA TURNER, Deputy Superintendant of
Programs, THOMAS EAGEN, Director, Inmate
Grievance Programs, DONALD SELSKY, Director,
Special Housing/Inmate Discipline,
Defendants.
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*
The Honorable John F. Keenan, United States District Judge for
the Southern District of New York, sitting by designation.
The Clerk of the Court is directed to amend the official caption
to conform to the above. Defendants Linda Turner, Thomas Eagan, and Donald
Selsky were dismissed with prejudice, pursuant to the parties' stipulation.
See Stipulation and Order of Discontinuance, Kotler v. Donelli, No. 06-CV-
1308 (N.D.N.Y. Oct. 20, 2010), ECF No. 51.
FOR PLAINTIFF-APPELLANT: Kerry Kotler, pro se, Riverhead,
New York.
FOR DEFENDANTS-APPELLEES: Andrew B. Ayers, Assistant
Solicitor General, for Barbara D.
Underwood, Solicitor General,
Andrea Oser, Deputy Solicitor
General, and Eric T. Schneiderman,
Attorney General of the State of
New York, Albany, New York.
Appeal from the United States District Court for the
Northern District of New York (Mordue, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment of the district court is
VACATED and the case is REMANDED for trial.
Plaintiff-appellant Kerry Kotler appeals pro se from
the district court's March 30, 2012 judgment, entered pursuant
to a memorandum decision and order filed the same day, and from
the memorandum decision and order filed September 5, 2012,
denying Kotler's motion for reconsideration. Defendants-
appellees moved for summary judgment on the basis of collateral
estoppel, contending that a decision of the Appellate Division,
Third Department, rejecting Kotler's Article 78 proceeding is
preclusive of his claims in this action. The district court
granted the motion. We assume the parties' familiarity with the
facts, procedural history, and issues on appeal.
"We review the district court's grant of summary
judgment de novo, drawing all reasonable inferences and
resolving all ambiguities in favor of the non-movant." Singer
v. Ferro, 711 F.3d 334, 338 (2d Cir. 2013) (quotation omitted).
We conclude that the district court erred in granting summary
judgment because Kotler's claims are not barred by collateral
estoppel.
Kotler was an elected inmate representative on the
grievance committee at the Bare Hill Correctional Facility.
Prison officials considered Kotler's behavior on the committee
to be overly adversarial. On November 1, 2003, pursuant to an
anonymous note, corrections officers searched Kotler's cell and
allegedly discovered a weapon. Following a disciplinary
hearing, in which Kotler insisted that someone else must have
planted the weapon, the hearing officer concluded that the
weapon belonged to Kotler and, inter alia, banned him from
serving on the grievance committee for three years. Kotler, pro
se, sought review in an Article 78 proceeding. Despite
inconsistencies in the corrections officer's testimony, the
Third Department concluded that there was substantial evidence
supporting the disciplinary determination, based primarily on
"the reasonable inference . . . that the shank, found in an area
within [Kotler's] control, belonged to him." Kotler v. Goord,
792 N.Y.S.2d 740, 741 (3d Dep't 2005).
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With the aid of counsel, Kotler then filed this
section 1983 action, alleging that prison officials had planted
the weapon to retaliate against him for his conduct on the
grievance committee. Discovery uncovered correspondence between
defendant-appellee John Donelli and defendant Thomas Eagan, in
which Donelli sought a way to remove Kotler from the committee
and ban him from future elections, and Eagan advised Donelli
that a Tier III disciplinary determination was one of the only
ways to accomplish that. Eagan sent his email on October 27,
2003, only a few days before the weapon was allegedly discovered
on November 1. Kotler also presented evidence that after his
disciplinary hearing, the hearing officer told him off-the-
record that, "When the boss says get rid of you, I got to get
rid of you."
In an earlier decision, the district court granted
summary judgment dismissing the case on the merits. Kotler
appealed and we vacated the dismissal. We held that Kotler
presented evidence "sufficient to raise a genuine issue of fact
as to whether one or more of the defendants retaliated against
Kotler for his protected activities." Kotler v. Donelli, 382 F.
App'x 56, 58 (2d Cir. 2010) (summary order). On remand, the
district court permitted defendants-appellees to amend their
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answer to assert the defense of collateral estoppel and then
granted summary judgment to defendants-appellees on that basis.
The issue in this appeal is whether the disciplinary
determination that the weapon belonged to Kotler collaterally
estops him from proving that the prison officials actually
planted that weapon. "New York courts apply collateral
estoppel, or issue preclusion, 'if the issue in the second
action is identical to an issue which was raised, necessarily
decided and material in the first action, and the plaintiff had
a full and fair opportunity to litigate the issue in the earlier
action.'" LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002)
(quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343,
349 (1999)). In considering whether a party had a full and fair
opportunity to litigate, we consider
'the various elements which make up the
realities of litigation,' . . .
including 'the size of the claim, the
forum of the prior litigation, the use
of initiative, the extent of the
litigation, the competence and
experience of counsel, the availability
of new evidence, indications of a
compromise verdict, differences in
applicable law and foreseeability of
future litigation.'
Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706,
734 (2d Cir. 2001) (quoting Schwartz v. Pub. Adm'r of Bronx, 24
N.Y.2d 65, 72 (1969)).
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As the district court correctly noted, New York
generally does grant preclusive effect to both factual questions
and legal issues reviewed in Article 78 proceedings. See Parker
v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349-50 (1999).
But we have noted that "there is a substantial question as to
whether, under New York law, collateral estoppel should ever
apply to fact issues determined in a prison disciplinary hearing
and reviewed for substantial evidence in an Article 78
proceeding, given the 'procedural laxity' of such prison
hearings and the limited nature of substantial-evidence review."
Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) (citations
omitted and emphasis added). Cf. Giakoumelos v. Coughlin, 88
F.3d 56, 60 (2d Cir. 1996) (concluding that preclusive effect
does apply to legal issues).
We need not answer the broad question of whether
collateral estoppel should ever apply to factual determinations
made in a prison disciplinary proceeding. "The doctrine of
collateral estoppel 'is grounded on concepts of fairness and
should not be rigidly or mechanically applied.'" LaFleur v.
Whitman, 300 F.3d 256, 271 (2d Cir. 2002) (quoting D'Arata v.
N.Y. Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 (1990)). "New
York courts have on numerous occasions stressed the importance
of an analysis of each case's unique circumstances, rather than
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the rigid application of bright-line rules, in deciding the
preclusive effect of a prior judgment." Giakoumelos, 88 F.3d at
61. Considering all the circumstances presented here, we
conclude that Kotler did not have a full and fair opportunity to
litigate this issue in the prior proceeding.
First, as noted in Colon, prison disciplinary hearings
are more procedurally lax than other administrative hearings.
Most cases granting preclusive effect to factual findings
reviewed in Article 78 proceedings arise in the context of civil
servant disciplinary hearings. See, e.g., Parker, 93 N.Y.2d at
346-47 (firefighter); Genova v. Town of Southampton, 776 F.2d
1560, 1561 (2d Cir. 1985) (per curiam) (police officer). Civil
servants have greater procedural protections in such hearings,
such as the right to counsel. See N.Y. Civ. Serv. L. § 75(2).
Prisoners, on the other hand, merely have a right, in certain
circumstances, to assistance from a prison employee and a
restricted right to call witnesses. See N.Y. Comp. Codes R. &
Regs. Tit. 7, §§ 251-4.1, 253.4, 253.5. Here, Kotler was placed
in a special housing unit immediately after the weapon was found
and thus had little opportunity to investigate his claims before
the disciplinary hearing began four days later.
Second, there is critical evidence available to Kotler
now that was unavailable at the disciplinary hearing or in the
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Article 78 proceeding. Kotler could only speculate during the
disciplinary hearing as to whether someone else had planted the
weapon, and the Third Department denied Kotler's request for
discovery in the Article 78 proceeding. See Kotler v. Goord, 5
N.Y.3d 755, 755 (2005). With the benefit of discovery in this
action, Kotler has uncovered evidence demonstrating that Donelli
wanted to remove Kotler from the grievance committee and was
advised, just days before the weapon was found, that he could
only do so if Kotler was found to have committed an infraction
after a disciplinary hearing. Combined with the other evidence,
there is now a genuine dispute as to whether prison officials
planted the weapon found in Kotler's cell.
Finally, it would be inappropriate to defer to the
hearing officer's factual findings in this case. That officer
is now a defendant in this action and he allegedly told Kotler
off-the-record, "When the boss says get rid of you, I got to get
rid of you." Even though the Third Department reviewed and
affirmed those findings, it only reviewed the record for
"substantial evidence," without considering the new evidence
available in this action. See Kotler, 792 N.Y.S.2d at 741.
While "a shift in the burden of proof is not dispositive as to
whether collateral estoppel can be applied," see Kosakow, 274
F.3d at 732 (referring to the differing burdens of proof in
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criminal and civil proceedings), it is relevant here because
there was no evidence that the weapon had been planted at the
time of the Article 78 proceeding. Now, however, there is
"sufficient [evidence] to raise a genuine issue of fact."
Kotler, 382 F. App'x at 58. Cf. Giakoumelos, 88 F.3d at 61
(explaining that collateral estoppel was appropriate because the
federal district court "would have before it essentially the
same record . . . that the Appellate Division had before it").
A jury verdict in favor of Kotler, based on a preponderance of
the evidence now available, would not cast doubt on the Third
Department's determination that there was substantial evidence
supporting the hearing officer's findings at the time of the
hearing.
Weighing all of these factors, we conclude that the
district court erred by granting summary judgment on defendants-
appellees' collateral estoppel defense. In these circumstances,
Kotler did not have a full and fair opportunity to litigate this
issue in the prior proceeding and he should have a chance now to
present all of the evidence to a jury.
We have considered defendants-appellees' remaining
arguments and find them to be without merit. We deny as moot
Kotler's motion for an extension of time to file his reply brief
and his challenges to the orders granting leave to amend and
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denying his motion for reconsideration. Accordingly, we VACATE
and REMAND for trial and for such further proceedings as may be
appropriate in the circumstances and not inconsistent with this
order.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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