MEDIA

March 9, 2007

On ‘Bivens’ Action, Chuka Sticks, Notice of Failure

Published in: New York Law Journal | volume 237

In the U.S. District Court for the Eastern District of New York. Judge Raymond J. Dearie found that a plaintiff in a Bivens action against Bureau of Prisons officials had shown seemingly valid reasons for delays in pressing his administrative remedies.  Judge Arthur D. Spatt held that New York’s criminal ban on chuka sticks did not violate a martial arts expert’s First Amendment rights.  Judge Dearie found that a bank’s untimely filings in a federal forfeiture proceeding against mortgaged property deprived the bank of standing to assert its interest.  And Judge I. Leo Glasser found a proposed class action settlement involving Time Warner to be defective in various respects and unfair.

‘Bivens’: Prison Inmates

In Tyree v. Zenk, 05 CV 2998 (EDNY, Feb. 13, 2007), a Bivens claim against certain officials and employees of Brooklyn’s Metropolitan Detention Center, Judge Dearie denied defendants’ motion for summary judgment. Defendants argued that plaintiff had not exhausted his administrative remedies because he was dilatory in pursuing available grievance procedures.

According to the complaint, in October 2003, a lieutenant of the Bureau of Prisons went to plaintiff’s cell and ordered him to ‘cuff up.’ Plaintiff asked why, and the lieutenant left and returned with an ‘extraction team.’ Plaintiff was allegedly ordered again to submit to restraints, but before he could comply, corrections officers forcibly removed him from his cell. The complaint also alleged that officers sprayed him a few times with a chemical, while redirecting a video camera away from the spraying.

Plaintiff was then allegedly made to stand in a recreation area for several hours in ambulatory restraints. The officers, he claimed, encouraged him to wash his skin and eyes, knowing that the water would reactivate the chemical agent, and later wrote false incident reports subjecting him to disciplinary sanctions.

Plaintiff asserted that, in accordance with 28 CFR § § 542.10-19, he filed a BP-8, seeking an informal resolution; then a BP-9, a formal request for relief; and finally his BP-10 and BP-11, appeals to the Bureau of Prisons regional director and general counsel, respectively.

The BP-9 is to be filed within 20 days of an incident. Though plaintiff did not meet that deadline, a jury, in Judge Dearie’s view, could find ‘a valid reason for delay.’ The record would permit a finding that plaintiff’s efforts at seeking an informal resolution by BP-8 were timely. The delay in filing the BP-9 was reasonable in light of the warden’s own exceedingly long delay in responding to the BP-8.

The court found a second ground to reject summary judgment on the timeliness of the BP-9. Upon receiving the BP-9, ‘defendants did not reject it as untimely. Instead, they accepted it, considered it on the merits, determined that an investigation was warranted, and reported to plaintiff that his request for an administrative remedy was ‘partially granted.” Slip op. 12.

A BP-10 must be filed within 20 days of the denial of a BP-9. But here the warden’s written response to the BP-9 was confusing as to the need for an intermediate appeal. In fact, defendants’ course of conduct apparently encouraged plaintiff to delay appealing the warden’s response — and ‘induced plaintiff to ‘wait and see’ rather than adopting a posture of dissatisfaction and appealing an administrative ruling that was both partially satisfactory and apparently provisional.’ Slip op. 17. These ‘special circumstances’ could justify the delay in the BP-10.

Judge Dearie concluded by urging the Bureau of Prisons to respond to inmate grievances ‘in a manner that is prompt, straightforward and clear.’ The regulations require an inmate seeking administrative remedies to be ‘honest and straightforward.’ The bureau’s ‘replies to inmate grievances should meet the same standard.’ Slip op. 17.

Chuka Sticks:  First Amendment

In Maloney v. Cuomo, 03 CV 0786 (EDNY, Jan. 17, 2007), Judge Spatt, granting defendant’s motion for judgment on the pleadings, held that New York’s weapons-possession law did not violate the First Amendment as applied to plaintiff’s possession and use of chuka sticks at home in his martial arts training.

Plaintiff, an attorney proceeding pro se, has been a martial arts student since 1975. His training includes ‘nonchaku,’ also called chuka sticks, a hand-held weapon consisting of two short sticks joined by a rope or chain.

In April 2000 plaintiff was charged in Nassau County with criminal possession of a weapon in the fourth degree for having nonchaku in his home, in violation of New York Penal Law § 265.01. That statute makes it a class A misdemeanor to possess any listed weapons. The criminal charges were dismissed, and plaintiff pled guilty to a noncriminal ‘disorderly conduct.’

Plaintiff subsequently sued the attorney general, the governor and the Nassau County district attorney seeking a declaration that the sections of the New York Penal Law banning chuka sticks are unconstitutional.

As Judge Spatt observed, the Declaratory Judgment Act is satisfied here ‘because plaintiff has already been arrested once under the allegedly unconstitutional statute and intends to continue using nonchaku in his martial arts training, which he considers to be constitutionally protected activity.’

The court ruled that the attorney general and governor are not proper defendants, as plaintiff has no reasonable fear of prosecution by either official.

Turning to the case against the district attorney, Judge Spatt stated: ‘the martial arts generally, and perhaps use of nonchaku in particular, have a rich history and are culturally significant to many people in many parts of the world.’ In ‘some circumstances,’ the First Amendment may ‘warrant some First Amendment protection’ for these activities. But no such protection was warranted here. As the court saw it, plaintiff uses nonchaku for physical training and self-defense. He is thus ‘similar to the boxer and wrestler engaged in a strictly physical and unprotected activity.’ Slip op. 17.

Plaintiff also had no valid claim under the Second Amendment, which does not limit a state’s ability to ban possession of certain weapons.

Notice of Forfeiture

In United States v. Real Property and Premises Known as 28-30 215th Street, Bayside, N.Y., 01 CV 2478 (EDNY, Feb. 14, 2007), Judge Dearie granted the government’s request for entry of a final forfeiture decree, striking the Answer and Statement of Interest of Bank of America for lack of standing.

Bank of America (BOA) issued a note and open-end mortgage on property owned by Lizette Bianchi, whose husband Miroslaw Egner was indicted for illegal trafficking of MDMA (ecstasy) and anabolic steroids. The government claimed to have provided initial notice of its forfeiture action in April 2001 to BOA by sending a fax to BOA’s corporate security department, and it served the complaint on BOA in May 2001. In December 2002, BOA filed its Statement of Interest in connection with the government’s forfeiture proceeding — long after the 30-day time limit to respond to the government’s complaint.

Finding BOA’s Statement of Interest untimely, the court rejected BOA’s argument that the government failed to send its complaint to the address specified in the mortgage. As Judge Dearie noted the government had satisfied its constitutional duty to provide notice ‘reasonably certain’ to apprise BOA of the action by sending its complaint to BOA’s Court Order Processing Department. There was no ‘excusable neglect’ because the government had satisfied its constitutional duty in its service efforts and BOA had taken no action for over a year. BOA, therefore, lacked standing to challenge the forfeiture of the property.

Fairness Standard

In Parker v. Time Warner Entertainment Co. LP, 98 CV 4265 (EDNY, Jan. 25, 2007), Judge Glasser denied final approval of a proposed settlement of a class action alleging violations by Time Warner Entertainment Co. LP (Time Warner) of subscriber privacy protections of the Cable Communications Policy Act.

Time Warner sold information to third parties that included subscribers’ names and addresses, programming selections, credit card information, places of employment, status as renters or owners of residences and social security and drivers’ license numbers. The complaint claims that Time Warner violated the Cable Act by collecting and distributing this information and failing to provide adequate notice of its disclosure practices.

Following eight years of litigation, the proposed settlement provided that, first, the class would be certified under Federal Rule of Civil Procedure 23(b)(2) and (b)(3). Second, class members would be eligible for in-kind benefits as follows:

  1. current subscribers to Time Warner Cable on a 1999 list sales database (LSDB) would be eligible for either a free additional service or two free movies on demand (Category I);
  2. (2) class members who are not current subscribers but live in a Time Warner service area would be eligible to receive one month of free service (Category II);
  3. (3) former subscribers who do not live in a Time Warner service area may transfer one of the benefits to a person living in a Time Warner service area (Category III); and
  4. (4) class members who are not on the 1999 LSDB would release all claims, but would not receive any benefits (Category IV).

The settlement notice provisions called for individual notice to be mailed to all current subscribers on the 1999 LSBD, a Web site and a published notice. The proposed settlement also provided for injunctive relief whereby Time Warner agreed to further revise its video programming notice and for cy pres relief of $250,000 payments to both the Samuelson Law, Technology and Public Policy Clinic at Boalt Hall Law School and a fellowship at the Center for Democracy and Technology. Finally, the proposed settlement provided for a release of all claims against Time Warner and payment of attorneys’ fees and expenses of $5 million.

Preliminarily, the court found the class action requirements under Rule 23(a) of numerosity, commonality, typicality and adequacy of representation to be satisfied.

Concerning Rule 23(b), the court found the notice program satisfied the requirement of actual individual notice. But the requested injunctive and declaratory relief did not meet the Rule 23(b)(2) predominance requirement, because the injunctive relief was insignificant. Since Time Warner had altered its practices immediately after the complaint was filed, there was no continuing or imminent behavior to enjoin. Moreover, a claim for declaratory relief cannot rely on past injury alone. Since the major part of the relief requested was statutory damages, attorney’s fees, costs and prejudgment interest, there was no justification for certification under the Rule 23(b)(2). Judge Glasser then concluded that no reasonable plaintiff would sue for the injunctive or declaratory relief sought here, particularly in light of the release of potential claims by all class members for statutory damages.

Because of the waiver of potential claims, the proposed settlement also did not meet the stringent notice requirements of Rule 23(b)(3). The Supreme Court imposes a nondiscretionary ‘duty to provide the ‘best notice practicable’ to all names and addresses obtainable through reasonable effort.’ Slip op. 33. Here, the notice did not satisfy that requirement, since notice was provided only to the first category of class members.

Finally, Judge Glasser held that the proposed settlement was not fair, reasonable and adequate, because it did not meet a distributional fairness standard imposed by case law. The proposed settlement did not protect silent members of the class. There are circumstances in which ‘asymmetrically allocated’ settlement benefits may be justified, as was the case with ‘Category IV’ class members, who were likely to have been on prior list sales databases and had their information sold, but who were unlikely to prevail. Slip op. 45. However, the court denied final approval of the settlement because the proposed settlement was unfair to Category III class members, who were set apart only because they no longer lived in a Time Warner service area and, thus, were arbitrarily distinguished from similarly situated plaintiffs, ‘simply because it might cost more to compensate them than others.’ Slip op. 47.

Harvey M. Stone and Richard H. Dolan are partners at Schlam Stone & Dolan. Bennette D. Kramer, a partner of the firm, assisted in the preparation of the article.

[This article is reprinted with permission from the March 9, 2007, issue of the New York Law Journal. Copyright © 2007 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]