Pottawattamie County: Black Cops Against Police Brutality Amicus Brief

Mark Herrmann, a partner at Jones Day, has written this wonderful post discussing some of the racial-justice issues presented in Pottawattamie County v. Harrington.  Mr. Herrmann has also filed an amicus brief on behalf of Black Cops Against Police Brutality, which is available here.

Pleading State Action Conspiracies After Iqbal

In Cooney v. Rossiter, No. 08-3675 (7th Cir. Sep. 30, 2009), a woman who lost custody of her children sued everybody under Section 1983 - including private parties.  Private parties may be sued under Section 1983 when the private parties' conduct may be fairly attributable to the state - such as when a private party conspires with a state actor.  Given Ashcroft v. Iqbal, what pleading standard should apply?  Judge Richard Posner writes that

the height of the pleading requirement is relative to circumstances. We have noted the circumstances (complexity and immunity) that raised the bar in the two Supreme Court cases. This case is not a complex litigation, and the two remaining defendantsdo not claim any immunity. But it may be paranoid pro se litigation, arising out of a bitter custody fight and alleging, as it does, a vast, encompassing conspiracy; and before defendants in such a case become entangled in discovery proceedings, the plaintiff must meet a high standard of plausibility.
Even before the Supreme Court’s new pleading rule, as we noted, conspiracy allegations were often held to a higher standard than other allegations; mere suspicion that persons adverse to the plaintiff had joined a conspiracy against him or her was not enough. The complaint in this case, though otherwise detailed, is bereft of any suggestion, beyond a bare conclusion, that the remaining defendants were leagued in a conspiracy with the dismissed defendants. It is not enough (and would not have been even before Bell Atlantic and Iqbal) that the complaint charges that “Bischoff and Dr. Lyle Rossiter, with the aid of Judge Nordquist, Dan Cain, and Brian Klaung continued the ongoing violations of Plaintiff, Deborah’s Constitutional rights.” That is too vague.
Slip op. at *6-7.  The case is thus dismissed - as it should have been.

Pro se Section 1983 suits are justifiably suspect.  Pro se lawsuits alleging violations of the right to familiar association are the stuff of legend.  Often people lose custody of their children because of mental health issues.  Imagine, then, how an already ill person takes the news of losing custody.

It is unfair to force innocent civil defendants to serve as pro se litigant's whipping boy.  A court of law is not a psychotherapist's office.

Nolle Prosequi and the Favorable Termination Rule

A Section 1983 lawsuit alleging malicious prosecution may go forward only when the criminal case against the defendant has been favorably terminated.  The favorable termination rule is nuanced.  At either end, favorable or unfavorable termination is obvious.

An acquittal after a jury trial is a favorable termination.  A guilty verdict is an unfavorable termination.  What about a deferred adjudication plea?  (Deferred adjudication is also known as "supervision" "accelerated rehabilitation," or "diversion.")  With a deferred adjudication plea, adjudication is withheld pending successful court supervision.  Ultimately, the charges are dismissed; and the defendant can truthfully claim that he was not convicted.  A favorable termination?  No.

What then, of nolle prosequi?  Under Connecticut law, a nolle prosequi is a “unilateral act by a prosecutor, which ends the pending proceedingswithout an acquittal and without placing the defendant in jeopardy.” Cislo v. City of Shelton, 692 A.2d 1255, 1260 n.9 (Conn. 1997) (internal quotations and citations omitted); Conn. Practice Book § 39-31.  A dismissal of criminal charges seems like a favorable termination.

Nevertheless, it seems that the question is fact specific.  See Roberts v. Babkiewicz, No. 08-3858 (2d Cir. Sep 30, 2009) (here) thoughtfully collects some cases:

The United States District Court for the District of Connecticut has reached different conclusions on whether a nolle prosequi bars a claim of false arrest or malicious prosecution. What these cases have in common however is that they were adjudicated at summary judgment, and the outcome depended on whether facts material to the reasons for the nolle prosequi remained in dispute. See, e.g., Lupinacci v. Pizighelli, 588 F. Supp. 2d 242, 249 (D. Conn. 2008)(summary judgment denied because deposition testimony provided evidence that the nolle wasnot conditioned on any benefit to state or victim); Clark v. Dowty, No. 3:05-CV-1345 (WWE), 2007 WL 2022045 (D. Conn. July 9, 2007) (summary judgment granted because nolle prosequiwas conditioned upon completion of therapy); Holman v. Cascio, 390 F. Supp. 2d 120, 125 (D.Conn. 2005) (summary judgment denied because deposition testimony provided evidence thatnolles were not entered as part of a plea bargain); Walsh v. Sousa, No. Civ. A. 3:01CV1872, 2004 WL 717169 (D. Conn. Mar. 25, 2004) (summary judgment granted); Galazo v. City of Waterbury, 303 F. Supp. 2d 213, 218-19 (D. Conn. 2004) (malicious prosecution claim survived summary judgment); Birdsall v. City of Hartford, 249 F. Supp. 2d 163, 171 (D. Conn. 2003)(summary judgment granted because the charges were dismissed in exchange for a charitable contribution).
The majority of cases from Connecticut courts interpret Connecticut law so that a nolle prosequi satisfies the “favorable termination” element as long as the abandonment of the prosecution was not based on an arrangement with the defendant. See Holman, 390 F. Supp. 2dat 123 (“The majority of decisions applying Connecticut law . . . hold that a nolle of the criminal charge may still permit the plaintiff to satisfy [the favorable termination] element if the circumstances of the nolle satisfy the See v. Gosselin test of an abandonment of prosecution without request from or by an arrangement with [the defendant].” (internal quotations omitted)). Under Connecticut law, as Holman correctly stated, “the mere allegation of a nolle in a complaint may be enough to withstand a motion to dismiss under Fed.R.Civ.P.12(b)(6).” Id. at 124.
However, “a nolle will preclude a subsequent case for malicious prosecution when it was madeas part of a plea bargain . . . .” Id. at 123-24.
Slip op. at *5-7.  In Babkiewicz, the defendant sued for malicious prosecution after having the case against him "nolled."  The Second Circuit allowed the case to move forward based on the pleadings.  Id. at *7 ("Without additional facts explaining thecircumstances of Roberts’s initial arrest on December 1, 2004 and of his subsequent guilty pleaand the nolle prosequi, both entered on May 25, 2005, we must accept Roberts’s allegation thatthe assault charge brought by Officer Babkiewicz was nolled because medical evidence provedhis innocence.")

Ninth Circuit Strikes Down Rent Control Ordinance Under Takings Clause

This split panel decision from the Ninth Circuit Court of Appeals will likely go en banc:


Daniel Guggenheim and others bring a facial challenge to the City of Goleta’s mobile home rent control ordinance.
... 
The district court did not address either the standing or ripeness questions due to the unusual procedural history of the case, but implicitly found the case was properly brought. The district court found that no taking had occurred. For the reasons explained below, we agree with the district court that this case is properly brought and ripe for decision, but we disagree with the district court on the merits of the takings claim. Because we find that a taking has occurred, we reverse and remand to the district court to determine what compensation is due. We affirm the district court’s judgment on the due processand equal protection claims.
Guggenheim v. City of Goleta, No. 06-56306 (9th Cir. Sep 28, 2009) (here).

Second Circuit Defines RLUIPA Standards

In Kessh v. Smith, No. 08-2816, (2d Cir. Sep 28, 2009) (here) a unanimous three judge panel considers, for the first time in its Circuit, "what constitutes a compelling state interest under the RLUIPA."  In Keesh, an inmate practices Tulukeesh, which imposes "various dietary restrictions," and "requires Tulukeesh members to engage in sparring, and prohibits them from appearing nude in front of non-members."  Slip op. at *2-3.  Prison officials did what they could, but were unable to wholly accommodate the prisoner's demands.  The prisoner sued under RLUIPA.

The Religious Land Use and Institutionalized Persons Act requires prison officials to accommodate a prisoner's free exercise of religion.  RLUIPA a creation of statute that grants rights far greater than those guaranteed under the First Amendment.  Under RLUIPA:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in section 1997 of this title, even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden on that person—
 (1) is in furtherance of a compelling governmental interest; and
 (2) is the least restrictive means of furthering that compelling governmental interest.
42 U.S.C. § 2000cc–1. After noting that, "We have not previously considered what constitutes a compelling state interest under the RLUIPA," the panel quotes case language from different Circuits.  The panel did not provide its own substantive analysis, though one reading Keesh would infer the standard to be that "security concerns are undisputedly compelling state interests."  Id. at *8.  However, states "must  provide sufficient evidence explaining how the practices at issue furthered the stated interest."  Id. (citations omitted).  Added to that standard: Accordingly, “inadequately formulated prison regulations and policies grounded on mere4 speculation, exaggerated fears, or post-hoc rationalizations will not suffice to meet the [RLUIPA’s] requirements.” Id. (citing 146 Cong. Rec. S7775 (daily ed. July 27, 2000) (joint statement of Sens. Hatch and Kennedy on RLUIPA)).

Somewhere, Justice Sandra Day O'Connor is smiling.

Applying that standard, the panel found that the prison had met the compelling governmental interest test.    Then panel continued: "We have also not previously considered under what circumstances a challenged practice constitutes the least restrictive means of furthering a state’s compelling interests."  Id. at *8.  As with the compelling state interest above, the panel notes that the narrowly-tailed question will answered by the evidence.  Id. ("for a state to demonstrate that its practice is the least restrictive means, it must show that it actually considered and rejected the efficacy of less restrictive measures before adopting the challenged practice.) (citation and quotation marks omitted).

The panel dismissed all of the prisoner's claims except the dietary restriction ones.  The dietary restriction claim was remanded to the trial court:
Because the record fails to show that the religious alternative menu provided to the Appellants is the least restrictive means of furthering the Defendants’ compelling interests, the district court’s grant of summary judgment to the Defendants as to this issue was incorrect. Accordingly, the case is remanded for consideration of whether there is a less restrictive substitute (including, but not limited to, an entirely vegetarian diet) for the current religious alternative menu.
Id. at *11.

Post-Garcetti Employee Speech Cases

Before beginning a lengthy post discussing post-Garcetti employee free speech cases, I did a brief Internet search.  Fortunately, someone has spared me the work.  Vanderbilt's University's First Amendment Center has been monitoring post-Garcetti opinions.  The First Amendment Center's website is excellent, and is located at this link.

Pre-Trial Detainees, Denial of Medical Care, and Deliberate Indifference

As one often finds when studying or litigating civil rights cases, the law takes many odd turns.

For example, a convicted prisoner who is denied medical treatment must file suit under the Eighth Amendment, which prohibits "cruel and unusual punishment."  A pre-trial detainee (usually someone who cannot afford to post bail) must file suit under the Fourteenth Amendment.  The rationale is that a pre-trial detainee, unlike a prisoner, is not being "punished."  It's an unpersuasive distinction.

A pre-trial detainee who has been held in jail 8 months pending trial is identically situated to someone who has been sentenced to jail.  It's not as if pre-trial detainees are put into the first-class section of the jail.  Jail is equally miserable for everyone.  Nevertheless, the cases distinguish between pre-trial detainees and prisoners - at least when the source of law for a Section 1983 action is involved.


A prisoner who gets sick and dies in prison, however, must show more than mere negligence on the part of prison officials in order to state an Eighth Amendment/Section 1983 claim.  Instead, the prisoner must prove deliberate indifference.  Deliberate indifference is a subjective standard.  It requires knowledge and disregard.  Farmer v. Brennan, 511 U.S. 825 (1994) (defining deliberate indifference as knowledge that an inmate faced a substantial risk of serious harm, and disregard for that risk).

Since pre-trial detainee's claims are treated differently than a convicted prisoner's, there was some controversy over whether Farmer v. Brennan's subjective standard applied.  Today, in Caiozzo v. Koreman, No. No. 05-4002 (2d Cir. Sep. 22, 2009) (here), a unanimous three-judge panel held that a pre-trial detainee must establish subjective knowledge of a substantial risk of harm.

In Koreman, a pre-trial detainee who had been arrested for first-degree harassment died after going into alcoholic shock.  His estate sued, alleging that jail officials were deliberately indifferent to his serious medical needs.  According to the allegations, the jail's intake nurse did a poor job of diagnosing the decedent before processing him into jail.  Had the estate been suing for medical malpractice, the case would have been a slam dunk.

The Second Circuit panel held, however, that showing gross incompetence - even amounting to a objective recklessness - is not enough:

There are two elements to a claim of deliberate indifference to a serious medical condition: "[The plaintiff] must show that she [or he] had a 'serious medical condition' and that it was met with 'deliberate indifference.'" Cuoco, 222 F.3dat 106. Here, there is no dispute that Caiozzo had a serious medical condition. The question is therefore whether a reasonable juror could show that Cummins was deliberately indifferent to that condition, which, under the Farmer test, means that she "kn[ew] of and disregard[ed] an excessive risk to [Caiozzo's] health or safety" and that she was "both . . . aware of facts from which the inference could be drawn that a substantial risk of serious harm exist[ed], and . . . also dr[e]w the inference." Farmer, 511 U.S. at 837.
Most of the evidence offered by the plaintiff was in support of the argument that Cummins should have been aware that Caiozzo was in immediate danger of alcohol withdrawal. A reasonable juror might have concluded that this was the case.  There is virtually no evidence, however, to support a conclusion by a reasonable juror that Cummins was actually aware of that immediate danger. The evidence is clear that she thought, wrongly it turned out, that Caiozzo was intoxicated and therefore not in danger of an imminent severe alcohol withdrawal reaction.  No reasonable juror could conclude that the Farmer test has been met.
Slip op at *18.  Prisoners rights cases have just gotten much harder to win.  Some will no doubt applaud the result.  It's become a cute past time of even many lawyers to decry prisoners' rights.  "Another lawsuit or denial of cable television," the ignorant who don't even know what volume Section 1983 contained in, guffaw.

Others might wonder whether a person presumed innocent shouldn't be entitled to greater medical attention than Caiozzo's standard will encourage.  Caizzo's standard is almost identical to that used in homicide cases.  See M.P.C. § 210.1(1): "A person is guilty of criminal homicide if he ... recklessly or negligently causes the death of another human being."  Id. at 2.02(c) ("A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the material element exists or will result from his conduct.")

Can it really be that courts are requiring civil rights litigants to prove that they were murdered by prison officials?  Caizzo seems to suggest so.

Inverse Preemption: Does California's anti-SLAPP Statute Preempt Section 1983?

A recent California Court of Appeals opinion contained this provocative introduction:

In 2004, the Morgan Hill City Council adopted a resolution that condemned Bruce Tichinin, a local attorney, for hiring a private investigator to conduct surveillance of the city manager and then denying that he had done so. Thereafter, Tichinin filed an action against the City under 42 United States Code section 1983 (hereafter "1983 action") alleging that the City unlawfully retaliated against him for exercising his constitutional rights. The City answered and then filed an anti-SLAPP motion under Code of Civil Procedure section 425.16 to strike the action.1 (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118 [§ 425.16 applies to federal claims under § 1983]; accord, Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1392, fn. 4.)
Tichinin v. City of Morgan Hill (Cal. Ct. App. Sep. 22, 2009) (here).

California’s anti-SLAPP statute is a creation of state law. "SLAPP is an acronym for strategic lawsuit against public participation....Code of Civil Procedure section 425.16 is called the anti-SLAPP statute and allows a defendant to gain early dismissal of SLAPP actions designed primarily to chill the exercise of First Amendment rights."  Slip op. at *1, fn. 1.

A Section 1983 action is a creation of federal law. In Tichinin, the plaintiff alleged that the City Council retaliated against him after he exercised his federal First Amendment right.  (He complained about city conduct as a city council meeting.)  Tichinin's claim was a basic retaliation action under the First Amendment, and thus would have been analyzed under federal law.

Nevertheless, the trial court dismissed Tichinin's case under California’s anti-SLAPP statute. The Court of Appeals suggested that dismissal would have been proper had the case facts been different.  In Martin A. Schwartz, Section 1983 Litigation: Claims and Defenses, the author notes that a California Court of Appeal applied California’s anti-SLAPP statute to a Section 1983 claim. Id. at § 12.08, 12-125 n.576 (2006). That seems strange.

Doesn’t dismissing a federal cause of action based on a state law affirmative defense turn turn preemption its head? A Section 1983 lawsuit is based on the violation of federal constitutional rights. A state’s anti-SLAPP statute is not part of federal constitutional law. Rather, it’s an affirmative defense and fee-shifting statue - entirely a creation of state statutory law.

Thus, what relevance does state law have on a federal common law claim for a violation of the First Amendment?  I've never thought about this issue before, so perhaps I am missing something huge.

I hope to look into these issues soon. In the meantime, feel free to educate me in the comments; or via e-mail.

Section 1983 Litigation for Criminal Defense Lawyers

A criminal defense lawyer recently e-mailed me to celebrate a rare pre-trial victory: He had won a motion to suppress under the Fourth Amendment. After congratulating him, I asked, “Are you going to file a Section 1983 lawsuit?” He was perplexed.

Title 42 U.S.C. 1983 does not provided substantive rights. It is not, as courts like to say say, “a source of rights.” Instead, it’s a procedural mechanism that allows one whose constitutional rights have been violated, to file a lawsuit against state actors.  (Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971) applies to federal actors, and is a creation of common law.)

If you, as a criminal defense lawyer, won a motion to suppress, then your client's Fourth Amendment rights had been violated. United States v. Leon's good-faith exception works similar to qualified immunity: Both Leon and qualified immunity protect officers who act in good faith. Thus, if you got through Leon in criminal court, there is a good chance you could get past qualified immunity on summary judgment in a civil rights action.

Any criminal lawyer who wins a suppression motion should therefore research whether a civil rights lawsuit is plausible.  They won't always be, though one should still do the leg work.

There are many bases upon which a suppression motion might be granted. Where a suppression motion has been granted under the Fourth Amendment, there is at least a colorable chance of winning a lawsuit. Not every suppression motion in the criminal context will lead to an actionable civil rights claim.

For example, you might have a suspect’s statement suppressed under the Self-Incrimination Clause. Due to the oddity of Chavez v. Martinez, 538 U.S. 760 (2003), you might not be able to sue for a violation of the Self-Incrimination Clause.  See Stroot v. City of Everett, Case No. 07-35425 (9th Cir. Aug. 13, 2009) (discussing circuit split and other Chavez v. Martinez nuances).

Nevertheless, a criminal defense lawyer who wins a suppression motion under federal law should always research whether a civil rights lawsuit should be filed.

Huppert v. City of Pittsburg (CA9): When DeShaney, Garcetti, and Federalism (Don't) Collide

Huppert v. City of Pittsburg, No. 06-17362 (9th Cir. July 21, 2009) (available at 2009 WL 2151344; or here) was a disappointing post-Garcetti, opinion. It was disappointing not necessarily because of its outcome, but because of its reasoning.

Some quick background: In Garcetti v. Ceballos, 547 U.S. 410 (2006), the United States Supreme Court held that public employees are not entitled to First Amendment protection for speech undertaken pursuant to their official duties. Id. (“The controlling factor in Ceballos' case is that his expressions were made pursuant to his duties as a calendar deputy.”) Post-Garcetti, lower courts have been busy defining what a government employee's “official duties” are.

In Huppert, a split panel of the Ninth Circuit Court of Appeals held that a city police officer who served as an FBI informant acted pursuant to his official duties as a city police officer. The panel reached its conclusion thusly:

Though Huppert argues that he was repeatedly informed by the FBI that his investigatory work was outside his duties as a police officer, this is not enough to overcome California’s jurisprudence defining such duties. It is clear that in California a police officer’s official duties include investigating corruption, so as to “prevent[ ] the commission of crime, . . . [and] assist[] in its detection.”
Id. at *9338 (quoting Christal v. Police Commission of City and County of San Francisco, 92 P.2d 416, 419 (Cal. Ct. App. 1939).

Under Huppert, then, a police officer who speaks out about police corruption will almost never have First Amendment protection. While Huppert's outcome disincentivizes would-be whistle blowers, it is also analytical unsound. It ignores California common law, as well as the common law of Section 1983. The Ninth Circuit made an important analytical error.

Under California state law, a police officer does not, in fact, have a duty to prevent the commission of crime, or to assist in its detection. This is known as the no-duty rule, and it provides:
As a general rule, a person who has not created a peril has no duty to come to the aid of another no matter how great the danger in which the other is placed, or how easily he could be rescued, unless there is some relationship between them which gives rise to a duty to act. This rule applies to police officers as well as to other citizens: The police owe duties of care only to the public at large and, except where they enter into a special relationship, have no duty to offer affirmative assistance to anyone in particular.
Benavidez v. San Jose Police Dept., 71 Cal.App.4th 853, 859-60 (Cal. Ct. App. 1999) (emphasis added). Moveover, under the common law of Section 1983, police do not have any duty to prevent crime, or assist in its detection. See DeShaney v. Winnebago County, 489 U.S. 189 (1989) (adopting no-duty rule as a matter of federal constitutional law).

Does it make sense to say that city police officers who cooperate with the FBI are simply doing their duty, when in fact, police are not under any legal duty to prevent and investigate crime?  And what of the federalism concerns?

In a world of dual sovereigns, how is a city police officer performing his official (and thus local) duties when cooperating with the FBI (a national entity)?  See United States v. Lanza, 260 U.S. 377, 382 (1922) ("We have here two sovereignties, deriving power from different sources, capable of dealing with the same subject-matter within the same territory . . . Each government in determining what shall be an offense against its peace and dignity is exercising its own sovereignty, not that of the other.")

Moreover, under Printz v. United States, 521 U.S. 898 (1997), state and local officials may not be commandeered by the federal government.  As Justice Antonin Scalia wrote in Printz:
It is incontestible that the Constitution established a system of "dual sovereignty." Gregory v. Ashcroft, 501 U.S. 452, 457 (1991); Tafflin v. Levitt, 493 U.S. 455, 458 (1990). Although the States surrendered many of their powers to the new Federal Government, they retained "a residuary and inviolable sovereignty," The Federalist No. 39, at 245 (J. Madison).
Given dual sovereignty, how can a local police officer be required to cooperate with the FBI?  California could enact a state law requiring that local police cooperate with the FBI in misconduct investigations.  Yet the Huppert panel cited no such law.  (It is unlikely that such a law exists.)

Perhaps the panel would say that a job duty is not the same thing as a legal duty. That distinction seems facially unpersuasive.  Under California state law, a police officer may not be sued for failure to act, because of the no-duty rule.   If there is no remedy, there is no right. If there cannot be a breach, how can there be a duty?

The Huppert panel should have address the no-duty doctrine before reaching its conclusion.  The Huppert panel should also have considered Printz's no-commandeering principle.  Absent an explicit state requirement, the state is no required to cooperate with the federal government.

Huppert was wrongly decided.  The Ninth Circuit Court of Appeals should review Huppert en banc.

When is a Motion for Judgment on the Pleadings Converted to a Motion for Summary Judgment?

Hernandez v. Coffey, 06-4246 (2d Cir. Sep 21, 2009) (here) discusses whether a Rule 12(c) motion for judgment on the pleadings may be converted to a motion for summary judgment when pro se litigants are involved.  The panel held that a trial court could not assume a pro se litigant understood this stuff:

In sum, before the court converted the defendants’ motion for judgment on the pleadings into a motion for summary judgment and granted that motion, extinguishing the pro se plaintiff’s claim, the plaintiff was entitled to (i) an opportunity to take relevant discovery and to submit any evidence relevant to the issues raised by the motion, and (ii) absent a clear indication that he already possessed such understanding, an explanation of the consequence of a grant of summary judgment, as well as of what he could do to defeat the motion.

Book Review: Constitutional Torts (Sheldon H. Nahmod, Michael L. Wells, Thomas A. Eaton)

In law school, my professor assigned Sheldon Nahmod’s Constitutional Torts for our course in Civil Rights Actions. Constitutional Torts was the best casebook I used in law school. It’s even served me well outside of law school.

The editing, organization, and case selection was excellent. What made Constitutional Torts superior was the notes at the end of each section.

At the end of each section, most casebooks have a serious of so-called "hypotheticals."  The hypotheticals are often nonsensical, irrelevant, and are almost always unhelpful. Nahmod’s however, are different.

Each hypothetical contained the legally-operative facts of a relevant opinion – usually a Court of Appeals opinion interpreting the Supreme Court case we had just read.  At the end of the factual; summary, there was also a case cite to the opinion.

I was thus able to read the facts; analyze them under the Supreme Court case we just read; and then log into Westlaw to pull up the opinion. There are meta-level questions, of course: Did the lower-court sincerely apply the Supreme Court’s holding? More helpful, though, was seeing the lower court’s reasoning applied to a specific set of facts.

Instead of simply throwing out some silly hypotheticals, Nahmod included relevant cases that allowed a student to analyze a set of facts based on the rule we had just learned. We were then able to "check our work," by pulling up the Court of Appeals opinion. While preparing for my exam in Civil Rights Actions, I'd analyze the facts Nahmod had included - which guaranteed academic success.

Even after law school, I’d occasionally find myself looking for cases by consulting Nahmod’s Constitutional Torts. Often one would find a helpful lower-court opinion by skimming a section for relevant case citations.

While there are better secondary sources for law practice (such as Nahmod’s treatise on Section 1983 litigation), there is no better casebook for a law student than Constitutional Torts.

Prosecutorial Immunity and Heck v. Humphrey

Prosecutorial immunity is a common-law doctrine that shields prosecutors from civil-rights lawsuits. Although Section 1983 was enacted as remedial legislation – and thus should be construed broadly – courts determined that public policy considerations trumped specific Congressional mandate. In Van De Kamp v. Goldstein, 129 S. Ct. 855 (2009) a unanimous Supreme Court quoted, approvingly, language from Chief Judge Learned Hand:

A half-century ago Chief Judge Learned Hand explained that a prosecutor’s absolute immunity reflects ‘a balance’ of ‘evils.’ Gregoire v. Biddle, 177 F. 2d 579, 581 (CA2 1949). ‘[I]t has been thought in the end better,’ he said, ‘to leave unredressed the wrongs done by dishonest officers than to subject those who try to do their duty to the constant dread of retaliation.’
The belief seems to be that every litigant would sue prosecutors absent prosecutorial immunity. One who lacks a complete understanding of the law of Section 1983 might find that view persuasive. However, prosecutors would rarely face civil rights lawsuits – even if prosecutorial immunity were abolished.

In Heck v. Humphrey, 512 U.S. 477 (1994), the United States Supreme Court applied the favorable-termination rule (which applied to malicious prosecution claims) to most civil-rights actions that could be brought against prosecutors.  In Heck, the Court held:
[I]n order to recover damages for allegedly unconstitutional conviction or imprisonment ... a §1983 plaintiff must prove that the conviction or sentence has been reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus, 28 U.S.C. § 2254.
Heck v. Humphrey’s favorable-termination rule allows lawsuits against prosecutors only when a defendant has won. Prosecutors win the overwhelming majority of cases brought to trial.  A prosecutor who loses more than 20% of her cases will not remain a trial lawyer in most offices.

Rarely are criminal cases reversed on appeal.  In Winning on Appeal, Ruggero Aldisert compiled data, which showed that criminal convictions are reversed on appeal (or remanded for a new trial) in only 5.6% of all federal cases.  Id.  ("From this, we conclude that the reversal rates from 1998 to 2002 for all appeals averaged 9.54 percent. Expressed otherwise, here are your odds of reversing the district court: Criminal cases: 1 in 18 [].")

In light of Heck v. Humphrey, is the supposed need for prosecutorial immunity persuasive? Moreover, even if prosecutorial immunity were abolished or limited, prosecutors would be immune from suit in nearly every case.  Like all other governmental actors, prosecutors are entitled to qualified immunity.

One might wonder if judges - who were all once lawyers themselves - have allowed empathy to cloud clear judicial decision making.

Shouldn’t Excessive Force Cases (Almost) Always Go to a Jury?

The Fourth Amendment provides that a seizure must be “reasonable.” And so a citizen may file a Section 1983 or Bivens lawsuit when an arresting officer uses unreasonable force during an arrest. Unreasonable force cases are often referred to as “excessive force” cases.

What is unreasonable force? Unreasonable force is the degree of force necessary to subdue a suspect – no more, no less. Ninth Circuit Model Civil Jury Instruction No. 11.4 reads: “A law enforcement officer has the right to use such force as is reasonably necessary under the circumstances to make a lawful arrest.” In the world outside of qualified immunity, we would always leave it for juries to determine whether force was reasonable.

In a criminal prosecution for assault or homicide, self-defense is often raised as a legal defense. A defendant who asserts self-defense must establish that he used reasonable force to defend himself.  Connecticut Criminal Jury Instruction 2.8-1 provides: "[B]efore a defendant uses physical force upon another person to defend [herself], [she] must have ... a reasonable belief that the degree of force [she] is using to defend [herself] from what [she] believes to be an ongoing or imminent use of force is necessary for that purpose."

Self-defense cases always go to the jury. As well, they should. After all, how can a court determine whether the force used was reasonable?  In self-defense cases, context is everything.

Whether force is reasonable or not requires a painstaking look at the fact.  Who said what to whom and when?  Who threw the first punch?  Was the punch a hard one, or soft one?  Did the victim appear to be dangerous?

Reasonable force issues require one to analyze facts. Juries, not judges, have the role of fact-finding.  Martin Parks Burks & Carlisle Havelock Morrissett, Pleading and Practice in Actions at Common Law § 264 (2d. ed. 1921).

In theory, then, almost no unreasonable force case would be dismissed on qualified immunity grounds. Almost no unreasonable force verdict would be overturned on appeal. Yet that is not how qualified immunity works in practice.

Instead, judges often dismiss unreasonable force cases on qualified immunity grounds. Judges often overturn a jury verdict in excessive force cases.

In Saucier v. Katz, 533 U.S. 194 (2001), the United States Supreme Court removed from the trier-of-fact some excessive force cases. In Saucier, Justice Kennedy wrote: “The matter we address is whether the requisite analysis to determine qualified immunity is so intertwined with the question whether the officer used excessive force in making the arrest that qualified immunity and constitutional violation issues should be treated as one question, to be decided by the trier of fact.” That is a obtuse way of saying: Where a question of fact predominates, how do we nonetheless remove a case from a jury’s hands?

The Supreme Court found a way. After analyzing the facts of the case – in contradiction of the common-law demand that judges decide matters of law, while leaving factual matters for the jury – the Court determined: “In the circumstances presented to this officer, which included the duty to protect the safety and security of the Vice President of the United States from persons unknown in number, neither respondent nor the Court of Appeals has identified any case demonstrating a clearly established rule prohibiting the officer from acting as he did, nor are we aware of any such rule.”

The assertion, of course, hides what the Court was doing.  The Court was removing a question of fact from the jury. At the time Saucier was decided, the there was a clearly established rule that police officers may not use excessive force when effectuating arrest. Whether force is excessive or not, is of course a question for a jury.

Nevertheless, in civil rights cases, judges will often decide for themselves whether excessive force was used.  Judges should be reluctant to grant qualified immunity in excessive force cases.  An excessive force case is contextual and fact-bound.  Fidelity to the law requires judges to resist the temptation of deciding what only a jury has the power to decide.

When Does a Warrant Clause Violation Accrue: Ord v. District of Columbia

Are a citizen's Fourth Amendment rights violated when a warrant is issued for the citizen's arrest - even if the citizen is never arrested?  That is the issue in Ord v. District of Columbia, a case pending before the Court of Appeals for the District of Columbia.  (You will find excellent coverage from the Legal Times Blog here; and here.)

In Ord, a warrant was issued for Ord's arrest.  After issuing the warrant, police realized that they lacked probable cause to believe that Ord had committed any crime.  Police then withdrew the warrant.  Ord was never arrested. 

The Fourth Amendment provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause []."  A plain-text reading of the Fourth Amendment leads one to conclude that Ord's rights were violated.

Still, Ord is an unusual case.  Usually, a party suing under the Warrant Clause was arrested pursuant to an arrest warrant.  Thus, the arrest served as the basis of the rights violation.  It's hard to determine what the Court will decide.

As a factual matter, having a warrant sworn out for your arrest would be traumatic.  You would live in fear.  You would be afraid of leaving your home.  You would know that, if you were stopped while driving your car, you'd be arrested and have your car impounded.  You'd be thrown into jail.  You'd also need to hire a lawyer to clear the warrant.  Even without an actual arrest, an arrest warrant puts a meaningful restraint on your physical liberty.  It also causes subject fear, and emotional distress.

A Warrant Clause violation should therefore accrue at the time the warrant is issued.  At the very least, a citizen who knows an arrest warrant has been issued should be able to sue.

False Accusation, False Confession, False Arrest

In Stoot v. City of Everett, No. 07-35425 (9th Cir. Sep 18, 2009) (here), a four-year old claimed that, when she was three, she had been sexually abused by a 14-year old.  The police officer who took the child's complaint, "interviewed [the child]. outside the presence of her mother or anyone else. He did not videotape or audio-record the interview.  He did take notes, but threw them out shortly after preparinghis police report."  So much for a search for truth.

After police interrogated a teenage boy for several hours, they were able to coerce a false confession.  The boy was indicted for raping a child.

The trial court dismissed the criminal charges, after concluding that the child was not competent to testify; and that the boy's confession had been coerced.  The boy's family sued.  A unanimous three-judge panel held:

We conclude that the Stoots have alleged viable claims under both the Fourth and Fifth Amendments, as Jensen seized Paul without probable cause and then allegedly coerced incriminating statements that were later used against Paul in a criminal proceeding. We nonetheless affirm the district court’s grant of summary judgment to defendants on the Fourth Amendment claim on the basis of qualified immunity,as the pertinent law was not clearly established at the time of the violations. The Fifth Amendment claim, however, may proceed in district court, as the aspects of the pertinent law not clearly established at the time of the confession did not affect Jensen’s role in bringing about the violation. Finally, we affirm the district court’s grant of summary judgment to defendants on the Stoots’ remaining claims, as Jensen’s con duct did not rise to the level of a substantive due process violation or a state law claim for outrage and the Stoots have failed to provide evidence supporting municipal liability.

Adult Bookstores and the First Amendment

When Judge Frank Easterbrook writes a 14-page summary of any area of law, one would be prudent to read it. In Annex Books v. City of Indianapolis, No. 05-1926 (7th Cir. Sep. 9, 2009) (here) Judge Easterbrook  summarizes the First Amendment's application to adult bookstores regulations.

Pottawattamie County v. McGhee: Prosecutorial Immunity for Manufacturing Evidence?

A police officer who manufactures or fabricates evidence is entitled only to qualified immunity.  Why should a prosecutor be entitled to greater immunity than a similarly-situated police officer?  The prosecutor's argument in Pottawattamie County is illogical when one considers the history and purpose of the Supreme Court's Section 1983 immunity doctrines.

The immunity doctrines are judge-made law.  Nothing in the text of Section 1983 immunizes government officials from lawsuits.  Judges decided - as a matter of policy - that government officials should not be punished for discretionary acts that, in hindsight, violated the law.  Whether one finds the common law of immunities unpersuasive in light of Section 1983's remedial purpose is irrelevant.  Qualified and absolute immunity exist.  It is thus an issue of policy how these doctrine should be applied.

The immunity doctrines depend on the function performed, not the title of the person performing the function.  A prosecutor is entitled to absolute immunity only when she performs an “advocative” function.  In Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), the Court noted the significant difference between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ].”  Thus, a prosecutor who is investigating wrongdoing is, under common law, only entitled to qualified immunity.  Prosecutors get the same immunity as a similarly-situated police officer.

A police officer who manufactures evidences is entitled only to qualified immunity.  In 1998, the Second Circuit wrote: “It is firmly established that a constitutional right exists not to be deprived of liberty on the basis of false evidence fabricated by a government officer.” Scotto v. Almenas, 143 F.3d 105, 113 (2d Cir. 1998) (parole officer). See also, Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130 (2d Cir. 1997) (finding that police officers who allegedly fabricated evidence could stand trial for violation of substantive due process); Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000). (“We think the right at issue in this case is appropriately identified as the right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.”)

"Scholarly" prosecutors want more protection than on-the-beat cops.  Police officers have a challenging job. “[P]olice officers are often forced to make split-second judgments—in circumstances that are tense, uncertain, and rapidly evolving.” Graham v. Connor, 490 U.S. 386, 397 (1989).  One might well understand why a police officer should be offered qualified immunity.  Imagine having to take a Criminal Procedure or Constitutional Law exam in the "heat of battle."  None of us would do very well.

Yet in Pottawattamie County, prosecutors cannot claim "hot blood."  From the comfort of their offices, prosecutors who had four years of college and three years of law school manufactured evidence.  Why in the world should someone with a law degree be entitled to greater immunity than a police officer?

The prosecutors in Pottawattamie County v. McGhee do not make any persuasive arguments in favor of absolute immunity.  Police officers who manufacture evidence are only entitled to qualified immunity.  Officers-of-the-Court with a Juris Doctorate should not be entitled to greater immunity for committing the same misconduct.

Constitutional Torts and Breach of Education Contracts

Bissessur v. Indiana University, Case No. 08-3504 (7th Cir. Sep. 11, 2009) (here) is a helpful and short primer on breach-of-education contract cases.  In Bissessur: "Khem Bissessur was expelled from the Indiana University School of Optometry after receiving several sub-par grades and failing a clinical rotation. He alleges that he had a protected property interest in a continuing education at the University, which was established in an implied contract between the parties."

In a rare move, the panel dismissed under 12(b)(6) for failure to properly plead a claim.  Even applying liberal rules of pleading, the plaintiffs failed to allege a cause of action:

Among other things, it contains no facts concerning:(1) what, if any, promises the University made to Bissessur; (2) how these promises were communicated; (3) what Bissessur promised in return; or (4) how these promises created an implied contract. In sum, it leaves the University with no notice of what this “implied contact” is or how it supports Bissessur’s constitutional claims. 
Slip op. at *8.  It seems like the panel is almost demanding fact-based pleading, although F.R.C.P. Rule 8 only requires notice pleading.  Perhaps the complaint was a mess.  Or it could be that there's a new trend demanding fact-based pleading in Section 1983 cases, especially post-Ashcroft v. Iqbal, 556 U.S. ___, 129 S.Ct. 1937 (2009).

Bissessur also contains this helpful rule statement:
A graduate student does not have a federal constitutional right to a continued graduate education. See Williams v. Wendler, 530 F.3d 584, 589 (7th Cir. 2008). That said, given that the “basic legal relation between a student and a private university or college is contractual in nature,” a student may establish that an implied contract existed between himself and the university that entitled the student to a specific right, such as the right to a continuing education or the right not to be suspended without good cause. Ross v. Creighton Univ., 957F.2d 410, 416 (7th Cir. 1992) (citation and quotation omitted). The “catalogues, bulletins, circulars, and regulations of the institution made available to the matriculant may become a part of the contract.” Id. A right established by an implied contract between a student and a university can be a property interest subject to constitutional protection, id., but to receive such protection, the student must first show that the implied contract establishes an entitlement to a tangible continuing benefit, see Bd. of Regents of State Colleges v. Roth, 408 U.S. 564, 574 (1972). In order to establish this type of entitlement, the student must “point to an identifiable  contractual promise that the [university] failed to honor.” Id.; Gordon v. Purdue Univ., 862 N.E.2d 1244, 1248 (Ind. App. Ct.2007). Absent evidence of such a specific promise, the court will not participate in “second-guessing the professional judgment of the University faculty on academic matters.” Ross, 957 F.2d at 415.
Good stuff.  And only seven pages of reading.

Qualified Immunity's Conundrums

Ignorance of the law is no excuse... Except... A citizen with no legal training may be sent to prison for violating the most obscure federal law on the books. Nevertheless, a police officer with training in the law - and whose job it is to enforce the law - may escape civil liability even when he has violated the law. Thus, ignorance of the law is a defense - if you're a police officer who has been sued rather than a citizen who might go to prison. This is an odd contrast, given that prison is a worse sanction than a civil judgment (from which a police officer would be indemnified, anyway).

Ignorant experts... "[W]e have recognized that a law enforcement officer may rely on his training and experience to draw inferences and make deductions that might well elude an untrained person." Texas v. Brown, 460 U. S. 730, 747 (1981). The thinking goes like these: Police officers are highly trained individuals. Of course courts should defer to their expertise.

If officers are cable of attaining immune-from-judicial-inquiry training and experience, why should they be allowed to violate the Constitution? On the one hand, police are professionals. On the other hand, they are too stupid to comprehend civil rights law.Thus, a police officer is an expert in the law - except when he has been sued for a violation of the law.

Enforcing the law does not mean one must know the law. A police officer must have probable cause that a crime has been committed before he may arrest someone. Surely, then, police officers must be able to understand the law. How else could they enforce it? Arrests would be nothing more than a game of chance. "We arrested this guy because he looked funny. Not sure what to charge him with. Who am I, but a humble beat cop, to know the law?"

In one context (where recognizing expertise would credit an officer's testimony), courts suggest that police are perfectly capable of developing legal expertise. In other context (where police officers have violated the law), courts say that one cannot expect police officers to learn civil rights law.

May a State be Sued under RLUIPA for Money Damages?

What does “appropriate relief” mean under RLUIPA?  Who knew two little words could matter so much?

Under the Religious Land Use and Institutionalized Persons Act, a covered plaintiffs whose religious freedoms have been violated may sue the state for “appropriate relief.” Does this mean that the prisoner may obtain money damages?

Ordinarily, that would be an easy question. Civil rights statutes are to be construed broadly to effectuate their remedial purpose. “Appropriate relief” is broadly-worded language. Thus, “appropriate relief” usually includes compensatory damages, as well as injunctive relief.

Under the Supreme Court’s interpretation of the Eleventh Amendment, states have sovereign immunity from suit. A state may not be sued for money damages unless Congress has abrogated the state’s immunity; or if the state has waived its Eleventh Amendment immunity.

In order to receive federal funding, a state must consent to RLUIPA. In other words, any state desiring federal funding for its prisons must agree to allow itself to be sued under RLUIPA.

Waiver of Eleventh Amendment immunity, however, must be clear and unequivocal. Did the states who agreed to be sued for “appropriate relief” thus agree to be sued for money damages?

There’s a split of authority on the issue. Today the Eighth Circuit Court of Appeals joined several circuits, holding that “appropriate relief” does not encompass monetary damages. Van Wyhe v. Reisch, Case No. 08-1409 (8th Cir. Sept 10, 2009).  The Eleventh Circuit Court of Appeals concluded otherwise, in Smith v. Allen, 502 F.3d 1255 (11th Cir. 2007).

The Eleventh Circuit has the stronger argument, in light of RLUIPA's "Judicial relief" section.  42 U.S.C. § 2000cc–2(a) provides: "(a) Cause of action A person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government."  While "appropriate relief" is not defined, it is also not narrowed.  Consider what happens in a different subsection:  (f) Authority of United States to enforce this chapter. The United States may bring an action for injunctive or declaratory relief to enforce compliance with this chapter []."  Id. at 2000cc–2(f).

If Congress intended "appropriate relief" to be limited to prospective relief, why then did it specifically limit the United States' remedies to injunctive and declaratory relief?  Wouldn't Congress had said, "The United Stats may bring an action for appropriate relief to enforce compliance with this chapter."

In RLUIPA, Congress limited the relief available to the United States in an action against a state.  Congress did not limit the relief available to private litigants.  Therefore, states did waive Eleventh Amendment immunity by consenting to RLUIPA.

Section 1983 and International Law

Section 1983 "creates no substantive rights; it merely provides remedies for deprivations of rights established elsewhere."  City of Oklahoma City v. Tuttle, 471 U.S. 808 (1985).  Does a treaty provide "rights established elsewhere"?  That difficult question is examined in, "A Primer on Treaties and Section 1983 after Medellin v. Texas."  The Abstract provides:

This article -- part of a symposium on the Supreme Court's 2008 decision in Medellin v. Texas -- addresses the impact of that decision on the ability of plaintiffs to bring section 1983 claims against state actors for violations of treaties. Because to my knowledge there has been no comprehensive assessment of whether section 1983 applies to treaties at all, the article first considers the textual, precedential and policy-based arguments on that question. I conclude that although the question is close, section 1983 should include treaty-based claims. Turning to Medellin, the article highlights several statements in the majority opinion to the effect that treaties are not equal to federal statutes and that courts should presume that treaties do not create private rights. The article assesses the extent to which these statements will create problems for treaty claims. Notwithstanding those problems, I argue that treaties and statutes should receive similar treatment under section 1983.
You may download the full article here.

RLUIPA, the Spending Clause, and Sovereign Immunity

Today a three-judge panel of the Eighth Circuit Court of Appeals issued an important ruling interpreting the Religious Land Use and Institutionalized Persons Act.  Van Wyhe v. Reisch, Case No. 08-1409 (8th Cir. Sept 10, 2009) (here).

Below is the Clerk's unofficial summary:

[PUBLISHED] [Hansen, Author, with Murphy and Riley, Circuit Judges]
Prisoner case - prisoner civil rights. Court had jurisdiction to consider the legal issues of whether Section 3 of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) is constitutional under Congress' Spending Clause authority and whether the state of South Dakota had waived its Eleventh Amendment immunity from monetary damages by accepting funds under the Act; court also had jurisdiction to consider the merits of plaintiffs' RLUIPA and First Amendment claims regarding provision of a succah, a tape player and study time to the extent the issues turned on issues of law; 
[The panel held]: RLUIPA is a constitutional exercise of Congress' Spending Powers; state did not waive its immunity from suit for monetary damages by accepting funds under the conditions set forth in Section 3 of the RLUIPA; as a result, the district court's denial of summary judgment as to the prison officials in plaintiff's Van Whye's suit is reversed, and the case is remanded with directions to enter judgment in their favor on the RLUIPA official-capacity claims; similarly, the prison officials are entitled to summary judgment on plaintiff Sisney's official-capacity RLUIPA claims for money damages; on the three claims for injunctive relief brought by plaintiff Sisney (use of a succah and tape player and for additional study time), defendants were entitled to summary judgment because plaintiff failed to show the officials' decisions on these issues substantially burdened his religious exercise; First Amendment claims failed with respect to the group study time and the tape player, but the court lacked jurisdiction to consider the court's refusal to grant the jail officials' motion for summary judgment on the succah issue because there were material questions of fact in dispute, and the issue could not be considered in this interlocutory appeal; retaliation issues would not be considered on interlocutory appeal because of the existence of genuine fact disputes.

May a Prisoner's VA Benefits Be Garnished to Pay for Prisoner's Medical Care?

A unanimous three-judge panel of the Ninth Circuit today said, Yes, in Gossett v. Czech, Case No. 06-16973 (9th Cir. Sep 9, 2009):

Paul Gossett (Gossett), a committed inmate at Napa State Hospital (the Hospital), appeals from the district court’s summary judgment order in his 42 U.S.C. § 1983 action alleging that Al Czech (Czech), the Trust Officer of the Hospital, unlawfully took a portion of his Department of Veterans Affairs (VA) benefits each month and applied the money to partially defray the cost of Gossett’s care at the Hospital. Gossett claims this reimbursement violated the statutory provision that makes benefits earned by United States military veterans “exempt from the claims of creditors.” 38 U.S.C.§ 5301(a)(1). Gossett also claims on appeal that Czech violated certain conditions and specified procedures contained in the regulations implementing this statute. See 38 C.F.R.§§ 13.58, 13.71. We affirm and hold that 38 U.S.C.§ 5301(a)(1), when read in combination with pertinent regulations such as 38 C.F.R. § 13.71, does not prohibit direct paymentsof VA benefits to a state hospital for ongoing veteran patient care.

Student Does Not Have Right to Play Religious Song at Graduation Ceremony

So held a partially-split panel in Nurre v. Whitehead, No. 07-35867 (9th Cir. Sept 8, 2009):

Kathryn Nurre (“Nurre”) sought to perform an instrumental version of “Ave Maria” at her public high school’s graduation ceremony. Dr. Carol Whitehead (“Whitehead”), superintendent of Everett School District No. 2 (the “District”), in which Nurre’s high school is located, declared that the piece could not be played at the ceremony because it could be seen as endorsing religion. Nurre subsequently sued Whitehead in both her individual and official capacities for alleged violations of Nurre’s First and Fourteenth Amendment rights. Nurre now appeals dismissal of her civil rights claims brought under 42 U.S.C. § 1983.
Supreme Court precedent and the law of our circuit counsel us to find that there was no violation of Nurre’s constitutional rights. Therefore, we affirm the ruling of the district judge.

A Brief Summary of Prosecutorial Immunity

Prosecutorial immunity generally.  Under the plain text 42 U.S.C. §1983, any state actor who causes a citizen to suffer a constitutional or federal rights violation can be sued. But in Tenney v. Brandhove, 341 U.S. 367 (1951) (holding that legislatures acting in legislative capacity are absolutely immune from suit under Section 1983), Justice Frankfurter wrote: “We cannot believe that Congress ... would impinge on [traditional immunities] so well grounded in history and reason by covert inclusion in the general language” of Section 1983. In Monroe v. Pape, 365 U.S. 167 (1961), the opinion which gave birth to modern civil rights litigation, Justice Douglas wrote for the Court that Section 1983 “should be read against the background of tort liability [ ].” Id. at 188.

The “background of tort liability,” id. at 188, the Court noted in Pierson v. Ray, 386 U.S. 547 (1967) includes common law defenses. Id. at 554-55 (holding that some immunities were so “well established” at common law that Congress “would have specifically so provided had it wished to abolish” them.) Thus, if “‘an official was accorded immunity from tort actions at common law when the Civil Rights Act was enacted in 1871 [he will be entitled to immunity unless Section] 1983's history or purposes nonetheless counsel against recognizing the same immunity in 1983 actions.’” Malley v. Briggs, 475 U.S. 335, 339-40 (1986) (quoting Tower v. Glover, 467 U.S. 914, 920 (1984)). In Imbler v. Pachtman, 424 U. S. 409 (1976), the Court held that prosecutors performing core prosecutorial functions are entitled to absolute immunity.

Prosecutorial immunity does not apply to all prosecutorial conduct. Rather, the reviewing court looks to “the nature of the function performed, not the identity of the actor who performed it.” Forrester v. White, 484 U. S. 219, 229 (1988). This is called the “functional test” to immunities. When a prosecutor performs “advocative” conduct, that is, he “act[s] within the scope of his duties in initiating and pursuing a criminal prosecution,” Imbler v. Pachtman, 424 U. S. 409, 410 (1976), he is absolutely immune from suit.

The functional approach.  It’s a matter of first principle that a prosecutor is not entitled to absolute immunity unless he is performing an “advocative” function. In Imbler v. Pachtman, 424 U.S. 409, 430-31 (1976), the Court noted the significant difference between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate [ ].” Thus, in Burns v. Reed, 500 U.S. 478 (1991) the Court held that prosecutors were absolutely immune for conduct associated with presenting evidence before a grand jury, but not for rights violations flowing from legal advice they gave to police officers. Giving legal advice to police officers (in this case, telling them that hypnotizing a witness was constitutional), was not advocative conduct. Id. at 492-96.

Then, in Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the Court held that a prosecutor was not absolutely immune for false statements made in a press conference, and for other pre-trial investigative conduct. The Fitzsimmons court noted that “[t]he conduct of a press conference does not involve the initiation of a prosecution, the presentation of the state's case in court, or actions preparatory for these functions.” Id. at 278. Thus, even though “[s]tatements to the press may be an integral part of a prosecutor's job,” id. at 278 and “may serve a vital public function ... a prosecutor is in no different position than other executive officials who deal with the press, and, as noted above, qualified immunity is the norm for them.” Id. (citations omitted).

Recently, in Kalina v. Fletcher, 522 U.S. 118 (1997), a unanimous Supreme Court held that a prosecutor who perjured herself when certifying certain facts necessary to obtain an arrest warrant was not absolutely immune from suit. Applying the functional approach to immunities, i.e., looking to “the nature of the function performed, not the identity of the actor who performed it,” Forrester v. White, 484 U. S. 219, 229 (1988), the Court asked “whether the prosecutor was acting as a complaining witness rather than a lawyer when she executed the certification [ ].” Id. at 129. The Court rejected the prosecutor’s argument “that the execution of the certificate was just one incident in a presentation that, viewed as a whole, was the work of an advocate and was integral to the initiation of the prosecution.” Id. at 130. Because “[t]estifying about facts is the function of the witness, not of the lawyer,” the prosecutor was not entitled to absolute immunity.

Supreme Court precedent thus clearly establishes that a prosecutor is not entitled to absolute immunity unless he is performing advocative conduct. The challenge is distinguishing between “those aspects of the prosecutor’s responsibility that cast him in the role of an administrator or investigative officer rather than that of advocate[ ].” Imbler v. Pachtman, 424 U.S. at 430-31 (1976).

The “advocative” function. “Advocative” conduct includes that which is “intimately associated with the judicial phase of the criminal process. Imbler v. Pachtman, 424 U.S. at 430-31. In Bernard v. County of Suffolk, 356 F.3d 495, 503 (2d Cir. 2004) a unanimous three-judge panel wrote that advocative conduct is that which “lie[s] at the very core of a prosecutor’s role as an advocate engaged in the judicial phase of the criminal process.” These “core” functions include:


  •  filing criminal charges, Imbler v. Pachtman, 424 U. S. 409 (1976); Pinaud v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995), even when done in bad faith. Shmueli v. New York, No. 03-0287 (2d Cir. Sept. 15, 2005);
  • presenting evidence before a grand jury, Hill v. City of New York, 45 F.3d 653 (2d Cir. 1995);
  • advocacy at a preliminary hearing, Burns v. Reed, 500 U.S. 478 (1991);
  • accepting a plea bargain, Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981);
  • retaining evidence pending a direct appeal, Parkinson v. Cozzolino, 238 F.3d 148 (2d Cir. 2001);
  • advocating increased bail at a bail hearing, Pinuad v. County of Suffolk, 52 F.3d 1139 (2d Cir. 1995).


The “impermissibly intertwined” and lack of jurisdiction exceptions.  Even if a prosecutor is performing an advocative function, he will nonetheless be denied absolute immunity if he intertwines the exercise of his advocation function with impermissible conduct; or if he acts in excess of his statutorily-conferred jurisdiction.

Thus, absolute immunity will not shield him if he “has intertwined his exercise of prosecutorial discretion with other, unauthorized conduct.” Bernard v. County of Suffolk, 356 F.3d 495, 504. A prosecutor also does not have absolute immunity “for acts that are manifestly or palpably beyond his authority” or are “performed in the clear absence of all jurisdiction.” Schloss v. Bouse, 876 F.2d 287, 291 (2d Cir. 1989). To determine whether a prosecutor has authority to take some act, “a court will begin by considering whether relevant statutes authorize prosecution for the charged conduct.” Bernard v. County of Suffolk, 356 F.3d 495 (2d Cir. 2004) (holding that prosecutor engaging in an allegedly politically-motivated prosecution was nonetheless entitled to absolute immunity, since the decision to file charges was a prosecutorial function).

“For example, where a prosecutor has linked his authorized discretion ... to an unauthorized demand for a bribe, sexual favors, or the defendant’s performance of a religious act, absolute immunity will be denied.” Id. at 504 (citing Doe v. Phillips, 81 F.3d 1204 (2d Cir. 1996). The most prominent (and perhaps one of the only published Second Circuit opinions applying the impermissibly intertwined doctrine) is Doe v. Phillips, 81 F.3d 1204 (2d Cir. 1996)

In Doe, a state prosecutor, Gerald D’Amelia filed felony charges against a mother for allegedly molesting her 14-year old son. Id. at 1206. After beginning to doubt the boy’s accusations, the prosecutor agreed to dismiss the charges. But only on one condition. Doe, a Roman Catholic, was required to swear on the Bible that the son’s accusations were false. Id. at 1207 (“D’Amelia testified that he told counsel that [unless Doe swore on the Bible] criminal charges would not be dismissed against her [ ].”)

The panel held that even though accepting and demand a plea bargain is an advocative function, Taylor v. Kavanagh, 640 F.2d 450 (2d Cir. 1981), the prosecutor was not absolutely immune since he lacked authority to demand that Doe swear on the Bible. Because he lacked authority to demand this “intertwined conduct,” D’Amelia was not absolutely immune from suit. Id. at 1211. (“D'Amelia's conduct was not protected by absolute immunity because his demand that Doe swear to her innocence on a bible in church was manifestly beyond his authority.”)

Conclusion.  Prosecutorial immunity, an atextual and judicially-created doctrine, shields advocative conduct from suit. Whether or not the prosecutor acted with bad faith or ill will matters not. The challenge, then, is differentiating between “advocative,” “administrative,” and “investigatory” functions. It is also worth noting that even if a prosecutor is denied absolute immunity, she might still be entitled to qualified immunity.

Al-Kidd v. Ashcroft (UPDATED)

Bivens action against John Ashcroft; litigated by ACLU; innocent American detained on bogus material witness warrant; prosecutorial immunity; qualified immunity; etc.  Lots of stuff going on in this 91-page monster, which I haven't had time to read yet.  Al-Kidd v. Ashcroft is available here.  Only time for a few quick notes, as I'm on the road:

Al-Kidd asserts three independent claims against Ashcroft. First, he alleges that Ashcroft is responsible for a policy or practice under which the FBI and the DOJ sought material witness orders without sufficient evidence that the witness’s testimony was material to another proceeding, or that it was impracticable to secure the witness’s testimony—in other words, in violation of the express terms of § 3144 itself—and that al-Kidd was arrested as a result of this policy (the § 3144Claim). Second, al-Kidd alleges that Ashcroft designed and implemented a policy under which the FBI and DOJ wouldarrest individuals who may have met the facial statutory requirements of § 3144, but with the ulterior and allegedly unconstitutional purpose of investigating or preemptively detaining them, in violation of the Fourth Amendment (the Fourth Amendment Claim). Finally, al-Kidd alleges that Ashcroft designed and implemented policies, or was aware of policies and practices that he failed to correct, under which material witnesses were subjected to unreasonably punitive conditions of confinement, in violation of the Fifth Amendment (the Conditions of Confinement Claim).
Ashcroft argues that he is entitled to absolute prosecutorial immunity as to the § 3144 and Fourth Amendment Claims. He concedes that no absolute immunity attaches with respect to the Conditions of Confinement Claim. He also argues that he is entitled to qualified immunity from liability for all three claims. 
Holding: No prosecutorial immunity for seeking a material witness warrant: "We hold, therefore, that when a prosecutor seeks amaterial witness warrant in order to investigate or preemptivelydetain a suspect, rather than to secure his testimony atanother’s trial, the prosecutor is entitled at most to qualified,rather than absolute, immunity."  Slip op. at 12290.

Good summary of supervisory liability on page 12294.  Holding: Ashcroft may be held liable under a supervisory liability theory.  Further: No qualified immunity for Ashcroft on the material witness/Fourth Amendment claim, as "We have previously held that material witness arrests are “seizures”within the meaning of the Fourth Amendment and aretherefore subject to its reasonableness requirement. Bacon v.United States, 449 F.2d 933, 942 (9th Cir. 1971)."

UPDATE: The New York Times has a report here.  Cheryl Miller of The Recorder has this article.

Right to Name-Clearing Hearing Clearly Established

From the Eighth Circuit Court of Appeals' unofficial summaries:

083148P.pdf 09/03/2009 Douglas Rush v. Barbara Perryman

U.S. Court of Appeals Case No: 08-3148
U.S. District Court for the Eastern District of Arkansas - Batesville
[PUBLISHED] [Smith, Author, with Gruender and Benton, Circuit Judges]
Civil case - civil rights. Where plaintiff was terminated in an open session of the College Board for alleged misconduct including dishonesty, an accepted stigmatizing charge, and requested a name-clearing hearing, which the Board denied, the Board was not entitled to summary judgment based on qualified immunity on plaintiff's due process claims as the right to a name-clearing hearing in such circumstances is clearly established.

Reverse Discrimination, Title VII, and the Equal Protection Clause

Today the Eighth Circuit Court of Appeals issued a potentially interesting opinion.  I am travelling and unable to read the case.  The summary, however, is intriguing.  Does this case raise a Ricci v. DeStefano-like conflict between EEOC standards and federal constitutional law?  Please leave a comment if the case is of interest.

082485P.pdf 09/03/2009 Donna Humphries v. Pulaski County, etc. U.S. Court of Appeals Case No: 08-2485 and No: 08-2594 U.S. District Court for the Eastern District of Arkansas - Little Rock [PUBLISHED] [Gruender, Author, with Wollman and Melloy, Circuit Judges]
Civil case - Employment discrimination. Evidence that an employer followed an affirmative action plan in declining to hire plaintiff, a white employee, for assistant principal positions may constitute direct evidence of unlawful discrimination; if the employer defends by asserting that it acted pursuant to a valid affirmative action plan, the question then becomes whether the affirmative action plan is valid under Title VII and the Equal Protection Clause; plaintiff raised a genuine issue of material fact concerning whether there was a specific link between the district's decision not to promote her to the assistant principal spots and the district's various affirmative action policies; based on the record, the court could not determine whether the district's affirmative action policies are consistent with court desegregation orders or Office of Desegregation Monitoring mandates; there were genuine issues of material fact related to questions whether the district's affirmative action policies addressed a manifest racial imbalance in the workforce and, relatedly, whether the policies were aimed at attaining a balance in the work force; in summary, plaintiff presented sufficient direct evidence of unlawful race discrimination by showing that there are genuine issues of material fact regarding the district's affirmative action policies, regarding whether the district acted pursuant to the policies when it failed to promote her to assistant principal positions, and regarding whether the district's affirmative action policies are valid; however, by failing to raise the issue before the EEOC, plaintiff failed to exhaust her administrative remedies on her claim that the district's failure to promote her to the director of counseling services was racially discriminatory; plaintiff's state law claims are also reinstated so that the district court may reconsider whether to hear them along with the federal claims concerning the assistant principal positions. Judge Melloy, concurring in part.

Statute of Limitations for Filing Deliberate Indifference Claim in Serious Medical Needs Cases

Under the Eighth and Fourteenth Amendments, the government has the constitutional obligation to attend to a prisoners serious medical needs.  Under the common law of Section 1983, the statute of limitations for filing a lawsuit is based on the forum state's personal injury statute of limitations.  How does one calculate the statute of limitations?

If a prisoner's medial issues are ignored for several months or years, when does the limitations period begin to run?  Does the limitations period run at the date of the first complaint?  At the last?

Recently the Second Circuit held that the limitations period in deliberate actions will be governed by the continuing violations rule.  Shomo v. City of New York, 07-1208-cv (2d Cir. Aug. 13, 2008) ("We hold that the continuing violation doctrine can apply to Eighth Amendmentclaims of medical indifference brought under 42 U.S.C. § 1983 when the plaintiff shows anongoing policy of deliberate indifference to his or her serious medical needs and some acts infurtherance of the policy within the relevant statute of limitations period.")  The panel limited its holding to cases where the plaintiff alleges "both the existence of an ongoing policy of discrimination and somenon-time-barred acts taken in furtherance of that policy."  Slip op. at *6, citing Harris v. City of NewYork, 186 F.3d 243, 250 (2d Cir. 1999).

Deadline for Filing Attorneys Fees Application in the Ninth Circuit?

Today the Ninth Circuit issued the following order in Berger v. City of Seattle, No. 05-35752 (9th Cir. Sep. 2, 2009) (available here).  In relevant part, it provides:

Appellee Michael Berger is awarded attorneys’ fees on appeal.
Contrary to the respondents’ suggestion, the fee request was timely. A request for attorneys’ fees must be filed no later than fourteen days after the expiration of the period withinwhich a petition for rehearing might have been filed. See 9th Cir. R. 39-1.6. Although the applicable procedural rules, national and local, do not expressly provide for the filing of a petition for full court rehearing en banc, they apply generally to the procedures governing rehearing en banc, with no exception for full court en banc. See 9th Cir. R. 35-3; Fed. R. App. P. 35, 40. Indeed, in every circuit but ours, every petition for rehearing en banc is a petition for full court en banc, so the Federal Rules of Appellate Procedure necessarily apply to such petitions. Our General Orders so recognize, as they expressly contemplate the filing of a petition for rehearing en banc before the full court within fourteen days after the filing of an en banc disposition. See 9th Cir. Gen. Order 5.8.
The court received Appellee’s petition within fourteen days after the expiration of the period within which a petition for a full court rehearing might have been filed. Appellee’s petition is therefore timely.

Prisoner’s Rights: Right to Receive Mail While in Prison

“[A] prisoner's right to the free flow of incoming and outgoing mail is protected by the First Amendment.” Davis v. Goord, 320 F.3d 346, 351 (2d Cir. 2003). “[T]interference with prisoners’ mail ‘must be no greater than is necessary or essential to the protection of the particular governmental interest involved. Washington v. James, 782 F.2d 1134, 1139 (2d Cir.1986) (quotation marks omitted). Prison mail regulations are valid only if they are “reasonably related to legitimate penological interest.” Turner v. Safley, 482 U.S. 78, 89 (1987).

“Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. at 84. “[N]or do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside[].’” Thornburgh v. Abbott, 490 U.S. 401, 407 (1987). “Access [to prisoners] is essential to ... families and friends of prisoners who seek to sustain relationships” with prisoners. Id.

Fourth Circuit Upholds Dragnet of Black Males

Today the Fourth Circuit Court of Appeals handed down an opinion upholding a police dragnet of black males. Monroe v. City of Charlottesville, No. 08-1334 (4th Cir. Aug. 31, 2009).

After an unidentified black man raped several women, police began approaching black males en masse, asking for a DNA sample. One black male who felt that he was coerced into giving a DNA sample sued under Section 1983, alleging, inter alia, violations of the Equal Protection Clause. He had two theories: (1) The police only demanded by DNA because I was black; (2) The police had never done a similar dragnet of white males. After most of the plaintiff's causes of action were dismissed, he voluntarily dismissed his theory (2) equal protection claim.

The Fourth Circuit only heard his theory (1) claim, and held that he had no claim:

The City did not so classify Monroe on the basis of his race. The officers in this case did not approach Monroe because he was African-American; rather, Monroe was approached because he matched the description of the suspect given by several victims. This is not a case in which police created a criminal profile of their own volition and decided which characteristics, such as race, that the criminal possessed. Nor is this a situation where police were faced with conflicting or uncertain evidence as to the assailant’s race and made the decision to pursue only African-Americans. Rather, as earlier indicated, the police decided to approach Monroe based on the similarity between him and the several elements of the victims’ descriptions, not because of a plan to investigate African-Americans. Certainly the description included the fact that the suspect was African-American, but the officers were not the source of that portrayal. Instead, that description came from private citizens—the several victims of a sex crime reciting facts as they existed when the violent felony was being committed.
Slip op. at *13.

Attorney's Fees in Civil Rights Cases: A Brief Summary

Statutory source of fees: Title 42 U.S.C. § 1988(b) provides that a trial “court, in its discretion, may allow the prevailing party ... a reasonable attorney’s fees as part of the costs.” In enacting Section 1988(b), Congress “intended that the amount of fees awarded ... be governed by the same standards which prevail in other types of equally complex Federal litigation ... and not be reduced because the rights involved may be non-pecuniary in nature.” S.Rep. No. 94-1011. “The purpose of § 1988 is to ensure ‘effective access to the judicial process' for persons with civil rights grievances.” Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)(quoting H.R.Rep. No. 94-1558, p. 1 (1976)).

A District Court's “choice of rates [is] well within [its] discretion.” Cabrera v. Jakabovitz, 24 F.3d 372, 393 (2d Cir.1994). The hourly rate to be awarded an attorney is a factual question to be reviewed for abuse of discretion. “We review the District Court's award of attorney's fees under 42 U.S.C. § 1988(b) for abuse of discretion.” Green v. Torres, 361 F.3d 96 (2d Cir. 2004). “We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983) (emphasis added).

“It is central to the awarding of attorney's fees under § 1988 that the district court judge, in his or her good judgment, make the assessment of what is a reasonable fee under the circumstances of the case. The trial judge should not be limited by the contractual fee agreement between plaintiff and counsel.” Blanchard v. Bergeron, 489 U.S. 87, 96 (1989) (holding that lawyers who agree to not bill their clients may nonetheless recovery attorneys’ fees).

Fees determined by local market conditions. Thus, courts look to the prevailing market rates for legal services. The hourly rate the lawyer charges other clients is relevant, if at all, only marginally. Reasonable fees “under § 1988 are to be calculated according to the prevailing market rates in the relevant community, regardless of whether plaintiff is represented by private or nonprofit counsel.” Blum v. Stenson, 465 U.S. 886, 895 (1984). Further, reasonable hourly rates are determined by reference to “the prevailing [market rates] in the community for similar services by lawyers of reasonably comparable skill, experience and reputation.” Id. at 895-96 n. 11. Indeed, pro bono organizations do not charge their clients anything. Yet they are awarded reasonable attorneys’ fees. Doe v. Bridgeport Police Dept., D.Conn.2006, 468 F.Supp.2d 333 (D. Conn. 2006) (Hall, J.) (ACLU lawyer awarded $375 an hour.)

Standard of review: The hourly rate to be awarded to an attorney is a factual question to be reviewed for abuse of discretion. “We review the District Court's award of attorney's fees under 42 U.S.C. § 1988(b) for abuse of discretion.” Green v. Torres, 361 F.3d 96 (2d Cir. 2004). “We reemphasize that the district court has discretion in determining the amount of a fee award. This is appropriate in view of the district court's superior understanding of the litigation and the desirability of avoiding frequent appellate review of what essentially are factual matters.” Hensley v. Eckerhart, 461 U.S. 424 (1983) (emphasis added).

In the Second Circuit, the trial court may consider the twelve-factor test articulated in Johnson v. Ga. Highway Exp., 488 F.2d 714, 717-19 (5th Cir. 1974). See Arbor Hill Concerned Citizens Neighborhood Ass'n v. County of Albany, 493 F.3d 110 (2d. Cir. 2007) (holding that trial court may consider so-called Johnson factors). The Johnson factors include:

(1) the time and labor required; (2) the novelty and difficulty of the questions; (3) the level of skill required to perform the legal service properly; (4) the preclusion of employment by the attorney due to acceptance of the case; (5) the attorney's customary hourly rate; (6) whether the fee is fixed or contingent; (7) the time limitations imposed by the client or the circumstances; (8) the amount involved in the case and the results obtained; (9) the experience, reputation, and ability of the attorneys; (10) the “undesirability” of the case; (11) the nature and length of the professional relationship with the client; and (12) awards in similar cases.
Johnson v. Ga. Highway Exp., 488 F.2d at 717-19.

Paralegals and support staff: In Missouri v. Jenkins by Agyei, 491 U.S. 274, 285 (1989), the Supreme Court held that “reasonable attorney’s fee provided for by statute should compensate the work of paralegals, as well as that of attorneys.” The same standards governing an award of attorneys’ fees to actual lawyers apply to paralegals. Id.

Billing methods and billing records: Block billing is disfavored, as it makes the District Court's fee determination more difficult. Block billing is not prohibited. The purpose of an attorneys fee application is to inform trial court, to allow trial court to make an informed judgment. “The applicant should ... should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims.” Hensley v. Eckerhart, 461 U.S. 424 (1983). No cases require an attorney to bill her time in six-minute increments. The Supreme Court has cautioned that a “request for attorney's fees should not result in a second major litigation” and “[p]laintiff's counsel, of course, is not required to record in great detail how each minute of his time was expended.” Hensley, 461 U.S. at 437, n. 12.

How some District Courts view block billing: Moreover, no Connecticut trial court has taken issue with so-called “block billing.” Tsombanidis v. City of West Haven, 208 F.Supp.2d 263, 280 (D. Conn. 2002) (As for defendants' challenge to ... “block billing,” certainly the better practice is to itemize each activity with a specific amount of time assigned to that activity. However, after a close review of the Prebill Control Report, the Court has found no entries where the time charged was excessive.”) Other courts seated within the Second Circuit have taken a similar approach. Simmons v. New York City Transit Authority, 2008 WL 630060 (E.D.N.Y. 2008) (slip opinion) (“At various points over the course of this action, Attorney Antollino grouped individual, but related tasks, into single billing entries.... I find that Antollino's records adequately describe the general subject of his time expenditures.”) Wise v. Kelly, 2008 WL 482399 (S.D.N.Y. 2008.) (“In all events, however, the time spent on these alleged block entries does not appear to be unreasonable in light of the work performed. Consequently, the Court does not believe that any reduction is warranted for these eight entries.”)