This column reports on several significant, representative decisions handed down recently in the U.S. District Court for the Eastern District of New York. Judge John Gleeson upheld a complaint by an inmate against prison personnel for their alleged fault in not protecting him from an attack. Judge Joanna Seybert ruled that plaintiff was not entitled to have a federal three-judge panel review his exclusion from an election to the state Senate. Magistrate Judge Joan M. Azrack stayed discovery in a civil case because of a related criminal investigation. Judge Charles P. Sifton granted a request under the Hague Convention to return petitioner’s child to England. Judge Arthur D. Spatt held that overpaid salary is not a ‘debt’ under the Fair Debt Collection Practices Act. And, in an antitrust case, Judge David G. Trager denied a motion to dismiss by Chinese exporters who argued that, in setting prices, they acted under compulsion from their government.
Duty to Protect Inmate
In Taylor v. Zerillo (warden), 08 CV 1494 (EDNY, Nov. 10, 2008), Judge Gleeson denied a motion by a warden and three corrections officers to dismiss a prisoner’s complaint alleging that their failure to protect him from a gang assault violated his rights. The complaint had been amended to remedy defects identified by the court in a prior ruling.
Plaintiff was incarcerated at Queens Private Detention Facility, which is under contract with the United States to provide detention services. While there, he was assaulted by members of a prison gang at D Block.
Judge Gleeson liberally construed the pro se complaint ‘as arguing that the named defendants violated [plaintiff’s] Eighth Amendment right to be free from cruel and unusual punishment because they ‘exposed a prisoner to a sufficiently substantial risk of serious damage to his future heath’ with ‘deliberate indifference’ to that risk. Farmer v. Brennan, 511 U.S. 825, 843 (1994).’ The complaint also alleged that defendants breached their state law duty to safeguard inmates.
Though plaintiff filed no administrative grievance, the complaint was not subject to dismissal for failure to exhaust that remedy. Plaintiff alleged that he was not told about the grievance procedure or given grievance forms, and that he was moved from prison to prison to ‘hinder’ his filing a grievance. He also claimed that he sent a written complaint to the warden and got no response. These allegations, in the court’s view, contained a ‘plausible estoppel argument.’ Slip op. 3.
The complaint against the warden alleged not just that the officers supervised by the warden acted with negligence or deliberate indifference, ‘but that the warden himself did so, because he knew about the [alleged] staff shortage and the risk it posed but did nothing about it.’ This was enough to preclude dismissal.
The allegation that Officer Johnson failed to ‘cover’ D Block suggested that Officer Johnson did not meet his responsibility to ensure proper staffing. Plaintiff should thus be allowed to prove that Officer Johnson deliberately disregarded a risk to plaintiff’s safety. The complaint was also sufficient as to two other named officers who allegedly should have been present to prevent the assault, but were not.
Defendants’ absence from the scene did not preclude their ‘participation’ in the assault. As Judge Gleeson noted, an officer who is present and does nothing during an assault on an inmate ‘directly participates in violations arising from that assault.’ ‘It follows that an officer who should have been present but was not could also be a direct participant.’ Slip op. 7.
The allegations that the warden failed to adjust staffing levels depicted him as the author of a policy that ‘fostered’ the violation here; and similar allegations about Officer Johnson’s supervisory failures could show gross negligence.
In short, the complaint did not rest on a theory of vicarious liability. Rather, it alleged that each defendant’s own negligence or indifference contributed to the harm plaintiff suffered. Slip op. 8.
Elections: Three-Judge Panel
In Fischer v. Suffolk County Board of Elections, 08 CV 4171 (EDNY, Oct. 31, 2008), Judge Seybert, denying plaintiff’s motion for reconsideration, held that a three-judge panel was not required to rule on plaintiff’s challenges to the failure by the state courts to validate his candidacy for New York State Senate.
Plaintiff was a Democrat party candidate for New York Senate District 1, covering the Eastern District of Long Island. He was not endorsed by the party and instead sought to run by obtaining the requisite 1,000 signatures within the district. He obtained 1,475 signatures, but the board of elections determined that less than 1,000 were valid. Plaintiff sought relief in state trial and appellate courts, which found his challenges to be deficient on procedural and substantive grounds.
Judge Seybert denied plaintiff’s application for a preliminary injunction.
Here, in his petition for reconsideration, plaintiff argued, among other things, that Judge Seybert had erred by failing to provide a three-judge panel to hear his arguments.
As the court observed, because plaintiff ‘does not question the constitutionality of a statute that has statewide effect,’ he is not entitled to a three-judge panel under 28 U.S.C. §2284. Slip op. 7.
Section 5 of the Voting Rights Act, 42 U.S.C. 1973(c), which provides for a three-judge panel, also did not apply in this case, where plaintiff did not challenge a new voting qualification or procedure adopted ‘without prior approval’ of the attorney general or the U.S. District Court for the District of Columbia. Slip op. 8.
Judge Seybert added: ‘to the extent that Plaintiff asks this Court to review a state court decision affirming the [Board of Elections’] determination that Plaintiff does not have the required one thousand signatures for this year’s election, the Court cannot do so because of the Rooker-Feldman doctrine and the doctrine of issue preclusion.’ Slip op. 9-10.
Stay of Discovery
In The City of New York v. Gutlove & Shirvint Inc., 08 CV 1372 (EDNY, Nov. 10, 2008), Magistrate Judge Azrack agreed with nonparty New York State Department of Taxation and Finance (department) that discovery in this civil case should be stayed for four months because of a pending criminal investigation.
Defendant moved to compel the department to produce a broad range of paper and electronic documents related to an investigation of defendant’s wholesale cigarette business. According to defendant, these documents form, in part, the basis of the allegations against him by the city of New York, plaintiff in the civil case. The documents are also integral to a criminal investigation by the U.S. Attorney for the Western District of New York, with the department’s assistance.
The department and the U.S. attorney, asserting that the requested discovery relates to a primary focus of their investigation, requested a four-month stay.
As Magistrate Judge Azrack stated:
Given the breadth of [defendant’s] request, which includes recordings of conversations between state and federal agencies and between [defendant] and alleged conspirators, it is clear that the information contained in the documents could expose the undercover law enforcement personnel and confidential informants participating in the investigation. This would likely deter both the exposed sources and potential sources from cooperating with the investigation in the future as well as potentially jeopardize their safety.
In balancing the competing interests, the court was not impressed by defendant’s claim that a temporary stay of civil discovery would cause undue reputational harm and a consequent decline in business, especially since discovery is ongoing in another case, involving similar allegations, brought by the city against defendant. In any event, arguable prejudice to defendant was outweighed by possible harm to the government. The court allowed defendant to renew his motion in four months.
International Child Abduction
In Lachman v. Lachman, 08 CV 04363 (EDNY, Nov. 20, 2008), Judge Sifton granted petitioner’s request for an order directing the return of his daughter to England, the country of her habitual residence, under the Convention on the Civil Aspects of International Child Abduction, done at the Hague (the Hague Convention).
Eric Lachman and his wife Roseanna Lachman lived together in London with their daughter from her birth in 2003 until July 2006, when the parties separated. Sometime after October 2006, Roseanna took their daughter to the United States without Eric’s consent and with no intention to return her voluntarily to the United Kingdom. Roseanna and her family in the United States then severely restricted Eric’s contact with his daughter.
Under the Hague Convention, a court may assess the merits of an abduction claim, but not of a child custody claim. As Judge Sifton found, Eric had shown that, before the child’s removal to the United States, the United Kingdom was the child’s habitual residence – she had lived there since birth, was a registered patient at a local general practitioner in London and had a place in a nursery school program. Eric and Roseanna had shared a mutual intent that the child’s habitual residence be in the United Kingdom, evidenced by a shared custody arrangement for care of their child. Nor had the child acclimatized to her new location. In fact, she has been moved several times in the United States and has shown a desire to maintain contact with her father despite instructions from Roseanna’s family not to answer his phone calls.
The court also found that the child’s removal breached Eric’s custody rights under English law. Roseanna contended that Eric had no custody rights because they were not validly married at the time of the child’s birth. The decree of dissolution of Roseanna’s prior marriage was issued before the marriage to Eric, but the final decree was issued afterwards. But the divorce proceedings between Roseanna and Eric in England never resulted in a determination that their marriage was void under English law. Additionally, the child was treated as legitimate and both parents believed that the marriage was valid. Thus, under English law both parents had custody rights, and Roseanna had removed the child from England in violation of those rights. Slip op. 20.
Judge Sifton found as well that up to the time Roseanna removed the child to the United States, Eric was exercising his custody rights within the meaning of the Hague Convention.
The court also rejected Roseanna’s defenses. First, although Eric had been arrested on domestic violence charges in the past, there was no evidence that he had ever harmed the child, and the English court had determined that he was not guilty of physical abuse. Second, the evidence did not establish that the child was ‘settled’ in the United States. Slip op. 23-24.
Fair Debt Collection Practices
In Orenbuch v. Leopold, Gross, & Sommers PC, 08 CV 2027 (EDNY, Nov. 19, 2008), Judge Spatt dismissed plaintiff’s claims under the Fair Debt Collection Practices Act (FDCPA).
Defendant, acting as a debt collector, sent plaintiff a letter seeking return of a salary overpayment on behalf of the city of New York, her former employer. Plaintiff disputed the amount of the debt and then sued, alleging that defendant had violated the FDCPA by requesting that she contact them ‘at once.’ But as Judge Spatt observed, overpaid salary is not a debt within the meaning of the FDCPA. To fall under the statute a debt must have arisen from the provision of a service or purchase of property or other item of value. Here, the salary overpayment arose from an accounting error that was ‘not the type of debt contemplated by the FDCPA, because the overpayment of salary was not a ‘ transaction’ within the meaning of the statute.’ Slip op. 6.
Price Fixing With Foreign Government Approval
In In re Vitamin C Antitrust Litigation, 06 MDL 1738 (EDNY, Nov. 6, 2008), Judge Trager held that defendants’ arguments based on the Act of State Doctrine, foreign sovereign compulsion and international comity did not, at this time, justify dismissal of a complaint alleging price fixing.
Defendants, Chinese manufacturers of vitamin C, did not deny the allegations of the complaint, but argued instead that their actions were compelled by the Chinese Ministry of Commerce (the ministry). All the defenses asserted by defendants rested on whether the Chinese government required defendants to fix prices in violation of the Sherman Act.
The ministry submitted an amicus brief, an unprecedented event demonstrating, in the court’s opinion, the importance the Chinese government placed on this case. The ministry asserted that the Chamber of Commerce of Medicines and Health Products Importers & Exporters (Chamber) was under the ministry’s direct control and imbued with governmental regulatory authority. According to the ministry and defendants, under the regulatory framework defendants were ‘compelled under Chinese law to collectively set a price for vitamin C exports, ‘ and ‘defendants could not have exported vitamin C that did not conform to the agreed-upon price.’ Slip op. 17. Defendants also submitted a number of documents that ‘suggest a complex interplay between the chamber and defendants that makes it difficult at this stage to determine the degree of defendants’ independence in making price decisions’ and, indeed, suggest that defendants’ acts were voluntary rather than compelled. Slip op. 22-23.
Under the Act of State Doctrine, ‘the courts of one nation may not sit in judgment of the public acts of another sovereign within its own borders.’ Slip op. 7. The foreign sovereign compulsion defense ‘recognizes that a defendant trying to do business under conflicting legal requirements may be caught between the proverbial rock and a hard place where compliance with one country’s laws results in violation of another’s.’ Slip op. 9. International comity is the recognition by one nation of the legislative, executive or judicial acts of another nation. Each of these defenses rests on the proposition that defendants’ collusion on prices resulted from acts of the Chinese government.
Judge Trager framed the central issue as ‘whether there is a factual dispute as to the alleged compulsion.’ Slip op. 25-26. The record did not clearly show whether defendants were performing a government function, acting as private citizens under governmental direction or acting as unrestrained private citizens. Denying the motion to dismiss based on the ambiguity of the record, Judge Trager stated:
It is not clear that this scenario of defendants making their own choices and then asking for the government’s imprimatur – which may or may not have occurred in this case – would qualify as the type of governmental act or compulsion contemplated by the defenses raised by the defendants. Slip op. 31.
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 December 12, 2008, issue of the New York Law Journal. Copyright © 2008 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited.]