12-1636-pr

Kotler v. Donelli

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON 

OR AFTER JANUARY 1, 2007 IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 

32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED 

WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH 

THE NOTATION "SUMMARY ORDER"). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY 

PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals 

for the Second Circuit, held at the Thurgood Marshall United 

States Courthouse, 40 Foley Square, in the City of New York, on 

the 19th day of June, two thousand thirteen.

PRESENT: DENNY CHIN,

RAYMOND J. LOHIER, JR.,

Circuit Judges,

JOHN F. KEENAN,

District Judge.

*

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KERRY KOTLER,

Plaintiff-Appellant,

-v- 12-1636-pr

JOHN DONELLI, Superintendant, Bare Hill 

Correctional Facility, L. JUBERT, Deputy 

Superintendant of Security, W. DANN, 

Correction Sergeant, DARWIN DAILY, 

Corrections Officer, DAVID CHARLAND,

Corrections Officer,

Defendants-Appellees,

LINDA TURNER, Deputy Superintendant of 

Programs, THOMAS EAGEN, Director, Inmate 

Grievance Programs, DONALD SELSKY, Director, 

Special Housing/Inmate Discipline,

Defendants.

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* The Honorable John F. Keenan, United States District Judge for 

the Southern District of New York, sitting by designation.

The Clerk of the Court is directed to amend the official caption 

to conform to the above. Defendants Linda Turner, Thomas Eagan, and Donald 

Selsky were dismissed with prejudice, pursuant to the parties' stipulation. 

See Stipulation and Order of Discontinuance, Kotler v. Donelli, No. 06-CV1308 (N.D.N.Y. Oct. 20, 2010), ECF No. 51.
FOR PLAINTIFF-APPELLANT: Kerry Kotler, pro se, Riverhead, 

New York.

FOR DEFENDANTS-APPELLEES: Andrew B. Ayers, Assistant 

Solicitor General, for Barbara D. 

Underwood, Solicitor General, 

Andrea Oser, Deputy Solicitor 

General, and Eric T. Schneiderman, 

Attorney General of the State of 

New York, Albany, New York.

Appeal from the United States District Court for the 

Northern District of New York (Mordue, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

ADJUDGED, AND DECREED that the judgment of the district court is 

VACATED and the case is REMANDED for trial.

Plaintiff-appellant Kerry Kotler appeals pro se from 

the district court's March 30, 2012 judgment, entered pursuant 

to a memorandum decision and order filed the same day, and from 

the memorandum decision and order filed September 5, 2012, 

denying Kotler's motion for reconsideration. Defendantsappellees moved for summary judgment on the basis of collateral 

estoppel, contending that a decision of the Appellate Division, 

Third Department, rejecting Kotler's Article 78 proceeding is 

preclusive of his claims in this action. The district court 

granted the motion. We assume the parties' familiarity with the 

facts, procedural history, and issues on appeal.

"We review the district court's grant of summary 

judgment de novo, drawing all reasonable inferences and 
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resolving all ambiguities in favor of the non-movant." Singer 

v. Ferro, 711 F.3d 334, 338 (2d Cir. 2013) (quotation omitted). 

We conclude that the district court erred in granting summary 

judgment because Kotler's claims are not barred by collateral 

estoppel.

Kotler was an elected inmate representative on the 

grievance committee at the Bare Hill Correctional Facility. 

Prison officials considered Kotler's behavior on the committee 

to be overly adversarial. On November 1, 2003, pursuant to an 

anonymous note, corrections officers searched Kotler's cell and 

allegedly discovered a weapon. Following a disciplinary 

hearing, in which Kotler insisted that someone else must have 

planted the weapon, the hearing officer concluded that the 

weapon belonged to Kotler and, inter alia, banned him from 

serving on the grievance committee for three years. Kotler, pro 

se, sought review in an Article 78 proceeding. Despite 

inconsistencies in the corrections officer's testimony, the 

Third Department concluded that there was substantial evidence 

supporting the disciplinary determination, based primarily on 

"the reasonable inference . . . that the shank, found in an area 

within [Kotler's] control, belonged to him." Kotler v. Goord, 

792 N.Y.S.2d 740, 741 (3d Dep't 2005).
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With the aid of counsel, Kotler then filed this 

section 1983 action, alleging that prison officials had planted 

the weapon to retaliate against him for his conduct on the 

grievance committee. Discovery uncovered correspondence between 

defendant-appellee John Donelli and defendant Thomas Eagan, in 

which Donelli sought a way to remove Kotler from the committee 

and ban him from future elections, and Eagan advised Donelli

that a Tier III disciplinary determination was one of the only 

ways to accomplish that. Eagan sent his email on October 27, 

2003, only a few days before the weapon was allegedly discovered 

on November 1. Kotler also presented evidence that after his 

disciplinary hearing, the hearing officer told him off-therecord that, "When the boss says get rid of you, I got to get 

rid of you."

In an earlier decision, the district court granted 

summary judgment dismissing the case on the merits. Kotler 

appealed and we vacated the dismissal. We held that Kotler 

presented evidence "sufficient to raise a genuine issue of fact 

as to whether one or more of the defendants retaliated against 

Kotler for his protected activities." Kotler v. Donelli, 382 F. 

App'x 56, 58 (2d Cir. 2010) (summary order). On remand, the 

district court permitted defendants-appellees to amend their 
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answer to assert the defense of collateral estoppel and then 

granted summary judgment to defendants-appellees on that basis.

The issue in this appeal is whether the disciplinary 

determination that the weapon belonged to Kotler collaterally 

estops him from proving that the prison officials actually 

planted that weapon. "New York courts apply collateral 

estoppel, or issue preclusion, 'if the issue in the second 

action is identical to an issue which was raised, necessarily 

decided and material in the first action, and the plaintiff had 

a full and fair opportunity to litigate the issue in the earlier 

action.'" LaFleur v. Whitman, 300 F.3d 256, 271 (2d Cir. 2002) 

(quoting Parker v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 

349 (1999)). In considering whether a party had a full and fair 

opportunity to litigate, we consider

'the various elements which make up the 

realities of litigation,' . . . 

including 'the size of the claim, the 

forum of the prior litigation, the use 

of initiative, the extent of the 

litigation, the competence and 

experience of counsel, the availability 

of new evidence, indications of a 

compromise verdict, differences in 

applicable law and foreseeability of 

future litigation.'

Kosakow v. New Rochelle Radiology Assocs., P.C., 274 F.3d 706, 

734 (2d Cir. 2001) (quoting Schwartz v. Pub. Adm'r of Bronx, 24 

N.Y.2d 65, 72 (1969)).
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As the district court correctly noted, New York 

generally does grant preclusive effect to both factual questions 

and legal issues reviewed in Article 78 proceedings. See Parker 

v. Blauvelt Volunteer Fire Co., 93 N.Y.2d 343, 349-50 (1999). 

But we have noted that "there is a substantial question as to 

whether, under New York law, collateral estoppel should ever 

apply to fact issues determined in a prison disciplinary hearing

and reviewed for substantial evidence in an Article 78 

proceeding, given the 'procedural laxity' of such prison 

hearings and the limited nature of substantial-evidence review." 

Colon v. Coughlin, 58 F.3d 865, 869 (2d Cir. 1995) (citations 

omitted and emphasis added). Cf. Giakoumelos v. Coughlin, 88 

F.3d 56, 60 (2d Cir. 1996) (concluding that preclusive effect 

does apply to legal issues).

We need not answer the broad question of whether 

collateral estoppel should ever apply to factual determinations 

made in a prison disciplinary proceeding. "The doctrine of 

collateral estoppel 'is grounded on concepts of fairness and 

should not be rigidly or mechanically applied.'" LaFleur v. 

Whitman, 300 F.3d 256, 271 (2d Cir. 2002) (quoting D'Arata v. 

N.Y. Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 664 (1990)). "New 

York courts have on numerous occasions stressed the importance 

of an analysis of each case's unique circumstances, rather than 
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the rigid application of bright-line rules, in deciding the 

preclusive effect of a prior judgment." Giakoumelos, 88 F.3d at

61. Considering all the circumstances presented here, we 

conclude that Kotler did not have a full and fair opportunity to 

litigate this issue in the prior proceeding.

First, as noted in Colon, prison disciplinary hearings 

are more procedurally lax than other administrative hearings. 

Most cases granting preclusive effect to factual findings 

reviewed in Article 78 proceedings arise in the context of civil 

servant disciplinary hearings. See, e.g., Parker, 93 N.Y.2d at 

346-47 (firefighter); Genova v. Town of Southampton, 776 F.2d 

1560, 1561 (2d Cir. 1985) (per curiam) (police officer). Civil 

servants have greater procedural protections in such hearings, 

such as the right to counsel. See N.Y. Civ. Serv. L. § 75(2). 

Prisoners, on the other hand, merely have a right, in certain 

circumstances, to assistance from a prison employee and a 

restricted right to call witnesses. See N.Y. Comp. Codes R. & 

Regs. Tit. 7, §§ 251-4.1, 253.4, 253.5. Here, Kotler was placed 

in a special housing unit immediately after the weapon was found

and thus had little opportunity to investigate his claims before 

the disciplinary hearing began four days later.

Second, there is critical evidence available to Kotler 

now that was unavailable at the disciplinary hearing or in the 
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Article 78 proceeding. Kotler could only speculate during the 

disciplinary hearing as to whether someone else had planted the 

weapon, and the Third Department denied Kotler's request for 

discovery in the Article 78 proceeding. See Kotler v. Goord, 5 

N.Y.3d 755, 755 (2005). With the benefit of discovery in this 

action, Kotler has uncovered evidence demonstrating that Donelli 

wanted to remove Kotler from the grievance committee and was 

advised, just days before the weapon was found, that he could 

only do so if Kotler was found to have committed an infraction 

after a disciplinary hearing. Combined with the other evidence, 

there is now a genuine dispute as to whether prison officials 

planted the weapon found in Kotler's cell.

Finally, it would be inappropriate to defer to the 

hearing officer's factual findings in this case. That officer

is now a defendant in this action and he allegedly told Kotler 

off-the-record, "When the boss says get rid of you, I got to get 

rid of you." Even though the Third Department reviewed and 

affirmed those findings, it only reviewed the record for 

"substantial evidence," without considering the new evidence 

available in this action. See Kotler, 792 N.Y.S.2d at 741. 

While "a shift in the burden of proof is not dispositive as to 

whether collateral estoppel can be applied," see Kosakow, 274 

F.3d at 732 (referring to the differing burdens of proof in 
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criminal and civil proceedings), it is relevant here because

there was no evidence that the weapon had been planted at the 

time of the Article 78 proceeding. Now, however, there is 

"sufficient [evidence] to raise a genuine issue of fact."

Kotler, 382 F. App'x at 58. Cf. Giakoumelos, 88 F.3d at 61 

(explaining that collateral estoppel was appropriate because the 

federal district court "would have before it essentially the 

same record . . . that the Appellate Division had before it"). 

A jury verdict in favor of Kotler, based on a preponderance of 

the evidence now available, would not cast doubt on the Third 

Department's determination that there was substantial evidence 

supporting the hearing officer's findings at the time of the 

hearing.

Weighing all of these factors, we conclude that the 

district court erred by granting summary judgment on defendantsappellees' collateral estoppel defense. In these circumstances, 

Kotler did not have a full and fair opportunity to litigate this 

issue in the prior proceeding and he should have a chance now to 

present all of the evidence to a jury.

We have considered defendants-appellees' remaining 

arguments and find them to be without merit. We deny as moot

Kotler's motion for an extension of time to file his reply brief 

and his challenges to the orders granting leave to amend and 
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denying his motion for reconsideration. Accordingly, we VACATE

and REMAND for trial and for such further proceedings as may be 

appropriate in the circumstances and not inconsistent with this 

order.

FOR THE COURT:

Catherine O'Hagan Wolfe, Clerk