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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