Kotler v. Jubert ( 2021 )

16-4191(L)
Kotler v. Jubert, et al.
In the
United States Court of Appeals
For the Second Circuit
August Term, 2020
Nos. 16-4191(L) and 17-1755(Con)
KERRY KOTLER,
Plaintiff-Appellant,
v.
L. JUBERT, DEPUTY SUPERINTENDENT OF SECURITY, W. DANN,
CORRECTION SERGEANT, DARWIN DAILY, CORRECTIONS OFFICER,
DAVID CHARLAND, CORRECTIONS OFFICER,
Defendants-Appellees,
JOHN DONELLI, SUPERINTENDENT, BARE HILL CORRECTIONAL
FACILITY, LINDA TURNER, DEPUTY SUPERINTENDENT OF PROGRAMS,
THOMAS EAGEN, DIRECTOR, INMATE GRIEVANCE PROGRAMS, DONALD
SELSKY, DIRECTOR, SPECIAL HOUSING/INMATE DISCIPLINE,
Defendants.
Appeal from the United States District Court for the
Northern District of New York
No. 06-cv-1308 — Frederick J. Scullin, Jr., Judge.
ARGUED: SEPTEMBER 30, 2020
DECIDED: JANUARY 19, 2021
Before: POOLER, LOHIER, and NARDINI, Circuit Judges.
This case — now on its third trip to our Court — arises from
retaliation and due process claims brought by plaintiff-appellant Kerry
Kotler, a former inmate at Bare Hill Correctional Facility, against multiple
prison officials. Since our last remand, the United States District Court for
the Northern District of New York (Frederick J. Scullin, Jr., J.), dismissed the
action against one defendant following his death, dismissed Kotler’s due
process claim as having been abandoned in a previous appeal, and held a
jury trial on Kotler’s retaliation claims, resulting in a verdict for the
defendants. Kotler appeals from the court’s December 5, 2016, entry of
judgment and May 18, 2017, denial of his motion for judgment as a matter
of law or, in the alternative, a new trial, arguing that the court’s pretrial
decisions were improper and that he was denied a fair trial. We AFFIRM
IN PART, VACATE IN PART, and REMAND the case for trial on Kotler’s
due process claim.
TOR TARANTOLA and JORDAN ALSTON-
HARMON, Yale Law School Appellate
Litigation Project (Alexis Zhang, Yale Law
School Appellate Litigation Project, Tadhg
Dooley and Benjamin M. Daniels, Wiggin &
Dana LLP, on the brief), New Haven, CT, for
Plaintiff-Appellant.
JONATHAN D. HITSOUS, Assistant Solicitor
General (Barbara D. Underwood, Solicitor
General, and Jeffrey W. Lang, Deputy
Solicitor General, on the brief), for Letitia
2
James, Attorney General of the State of New
York, Albany, NY, for Defendants-Appellees.
WILLIAM J. NARDINI, Circuit Judge:
Plaintiff-Appellant Kerry Kotler, a former inmate at the Bare Hill
Correctional Facility in Malone, New York, sued prison officials on the
theory that they planted a weapon in his housing area in retaliation for his
outspoken activity on an inmate grievance committee. He also alleged that
the officials violated his due process rights in a disciplinary hearing over the
incident. Kotler claimed that, by setting him up and then denying him a fair
hearing, officials violated his rights under the First and Fourteenth
Amendments. Over the years, the case has twice bounced between the
United States District Court for the Northern District of New York (Norman
A. Mordue, J., and Frederick J. Scullin, Jr., J.) and our Court. Since our last
remand, the district court dismissed Kotler’s due process claim, finding that
Kotler abandoned it in his prior appeals, and dismissed the alleged linchpin
defendant, now-deceased Superintendent John Donelli, finding that no one
3
timely moved for substitution of Donelli’s successor or representative after
his death. The court held a three-day trial on Kotler’s retaliation claims in
November and December 2016. The jury returned a verdict for the defense.
On appeal, Kotler challenges the district court’s pretrial dismissal of
Superintendent Donelli as a defendant. He also seeks a retrial on his
retaliation claims, arguing that the district court prevented him from
presenting the jury with his theory of the case, and that the court improperly
answered a jury question during deliberations. Finally, Kotler seeks a trial
on his due process claim, contending that the claim’s dismissal before trial
was improper.
We agree with the district court’s dismissal of Superintendent Donelli
and write to explain that under Rule 25(a) of the Federal Rules of Civil
Procedure, the 90-day deadline for a plaintiff to move to substitute a
defendant is triggered by service of a notice on the plaintiff of the
defendant’s death, regardless of whether that notice was also served upon
the decedent’s successor or representative. Moreover, we find no grounds
4
to vacate the jury verdict on retaliation. But we conclude that Kotler did not
abandon his due process claim during his previous appeals, and so the
district court erred in dismissing it. Accordingly, the judgment is affirmed
in part and vacated in part, and the case is remanded solely for trial on
Kotler’s due process claim.
I. BACKGROUND
A. Factual History
Kotler was an elected inmate representative on the Bare Hill
Correctional Facility grievance committee when, on November 1, 2003, a
corrections officer found a shank in his housing cube and detained him
pending disciplinary proceedings. Kotler alleges that the defendants
planted the weapon in retaliation for his work on the grievance committee.
Then-Superintendent John Donelli was frustrated with Kotler’s conduct and
had recently learned that a Tier III disciplinary rule violation — such as
possession of a weapon — would compel Kotler’s dismissal as a
representative. Kotler intended to defend himself at his disciplinary hearing
5
and submitted a list of witnesses, some of whom he claimed were complicit
in the alleged set-up. Superintendent Donelli then appointed one of those
requested witnesses, Deputy Superintendent of Security Lee Jubert, to
preside over Kotler’s disciplinary hearing. Deputy Superintendent Jubert
found Kotler guilty of weapon possession and ordered his three-year
suspension from the committee.
B. Procedural History
On October 27, 2006, Kotler filed this action pursuant to 42 U.S.C.
§ 1983, alleging violations of his First and Fourteenth Amendment rights for
the alleged retaliation, and violations of his Fourteenth Amendment due
process rights during his disciplinary hearing.1
1Kotler originally brought due process claims against Deputy Superintendent Jubert and
Director of Special Housing and Inmate Discipline Donald Selsky. The case against
Director Selsky was dismissed by stipulation. Accordingly, only the due process claim
against Deputy Superintendent Jubert remains at issue.
6
This case has visited our Court twice before. 2 In its first iteration, the
district court (Norman A. Mordue, J.) granted the defendants’ motion for
summary judgment, holding that there was no evidence that the weapon
had been planted, and thus no reasonable basis on which a jury could have
found retaliation. The court also dismissed Kotler’s due process claims,
finding that they were defeated by the defendants’ evidence that the
discipline was not retaliatory. Kotler filed a notice of appeal “from each and
every part of” the district court’s decision. J. App’x at 76. This Court
vacated that decision in Kotler I, reasoning that there was “a genuine issue
of fact as to whether one or more of the defendants retaliated against Kotler
for his protected activities.” 3 On remand, the district court granted the
defendants’ second motion for summary judgment on the basis of collateral
estoppel, premised on the outcome of Kotler’s prison disciplinary hearing
2See Kotler v. Donelli, 382 F. App’x 56 (2d Cir. 2010) (“Kotler I”); Kotler v. Donelli, 528 F.
App’x 10 (2d Cir. 2013) (“Kotler II”).
3 382 F. App’x at 58.
7
and a subsequent Article 78 proceeding in New York Supreme Court. The
court ruled that Kotler could not relitigate his claim — rejected by the state
court — that the weapon had been planted by prison officials. In Kotler II,
we again vacated the district court’s decision, holding that “Kotler did not
have a full and fair opportunity to litigate [his claims] in the [disciplinary
hearing and Article 78 proceeding] and he should have a chance now to
present all of the evidence to a jury.” 4
As the parties prepared for trial, Superintendent Donelli died. On
August 21, 2013, the Assistant Attorney General (“AAG”) representing the
other defendants served Kotler with a statement of death. The notice stated
that Superintendent Donelli would be dismissed from the case “unless a
motion for substitution is made not later than 90 days after” service of the
notice. J. App’x at 198. On November 22, 2013, Magistrate Judge David E.
Peebles recommended Superintendent Donelli’s dismissal from the lawsuit
4 528 F. App’x at 14.
8
under Federal Rule of Civil Procedure 25, because no one had moved for
substitution within 90 days of service of the statement of death. 5 Kotler
objected to the recommendation, arguing that the statement of death was
deficient because it did not provide the executor’s name or contact
information, and that the AAG should have assisted him in identifying the
executor of the Donelli estate. The district court adopted the magistrate
judge’s Report and Recommendation and dismissed all claims against
Superintendent Donelli. 6
The case went to trial on November 30, 2016, by which time it had
been reassigned to District Judge Frederick J. Scullin, Jr. 7 At the final pretrial
conference two days prior, the district court orally dismissed as abandoned
Kotler’s due process claim against Deputy Superintendent Jubert. It
5 See Kotler v. Donelli, No. 9:06-CV-1308, 2013 WL 6799320, at *2 (N.D.N.Y. Dec. 20, 2013)
(adopting Magistrate Judge Peebles’s Report and Recommendation).
6 Id. at *1.
7 The case was reassigned to Judge Scullin on March 1, 2016.
9
explained that the court had previously granted summary judgment for the
defendants on all of Kotler’s claims, and concluded that Kotler had appealed
only the court’s First Amendment retaliation decision. It also found that this
Court’s previous orders “only explained the standard for a First
Amendment retaliation claim” and “framed the issue” solely as a question
of retaliation. 8 Accordingly, Kotler was permitted a trial only on his
retaliation claims.
Trial lasted three days. Kotler presented his case pro se with standby
counsel present. He called four witnesses, read two unavailable witnesses’
deposition testimonies into the record, and testified himself. The
defendants called one witness. At the end of the third day of trial, after
retiring to deliberate, the jury sent a note asking two questions: whether
there were video cameras in Kotler’s housing cube, and whether an inmate
8 The district court provided this explanation in its decision on Kotler’s motion for
judgment as a matter of law or, in the alternative, for a new trial. See Kotler v. Jubert, No.
9:06-CV-1308, 2017 WL 2210267, at *6 (N.D.N.Y. May 18, 2017).
10
is allowed to ask why he is being detained. Discussing the first question
with the court, Deputy Superintendent Jubert said there were no video
cameras, and Kotler said, “That’s correct.” J. App’x at 998. As to the second
question, the court stated that it assumed the answer was yes, to which
defense counsel agreed, and Kotler said nothing. The court asked the
parties whether it could send its response to the jury in writing; again, the
defense lawyers agreed, and Kotler did not respond. In a post-trial filing,
Kotler claimed that he later registered an objection to the courtroom deputy,
but the transcript shows that he never raised the issue to the court itself
during the trial — either before or after the court recessed.
Shortly thereafter, the jury returned a verdict for the defendants. The
court entered judgment on December 5, 2016. Kotler later filed a written
motion for judgment as a matter of law or, in the alternative, for a new trial,
which the district court denied. 9 Kotler timely appealed from the judgment
and order.
9 Id. at *7.
11
II. Discussion
Kotler argues that the district court improperly dismissed the action
against Superintendent Donelli, and did not give a fair trial on the retaliation
claims by making several prejudicial comments in front of the jury and
improperly answering a jury question. He also argues that the court
erroneously dismissed his due process claim as abandoned on a prior
appeal. For the reasons that follow, we agree with the district court’s
dismissal of Superintendent Donelli, and we find no reason to vacate the
jury’s verdict on retaliation. Nevertheless, we hold that the district court
erred in concluding that Kotler abandoned his due process claim. We
therefore affirm the judgment with respect to the retaliation claim, but
vacate the district court’s dismissal of the due process claim and remand for
trial on that claim.
12
A. Superintendent Donelli’s dismissal was proper.
We first consider whether the district court properly dismissed the
action against Superintendent Donelli after his death. 10 We reject Kotler’s
argument that, under Federal Rule of Civil Procedure 25, the 90-day
window to substitute Superintendent Donelli’s estate had not yet run
because the AAG did not serve the estate’s executor with a statement of
death. Instead, we hold that the 90-day limit began running for Kotler when
the AAG properly served Kotler with a statement of death.
Rule 25 tells courts what to do when a party to a lawsuit dies. Rule
25(a) states in relevant part:
If a party dies and the claim is not extinguished, the court may
order substitution of the proper party. A motion for
substitution may be made by any party or by the decedent’s
successor or representative. If the motion is not made within 90
days after service of a statement noting the death, the action by or
against the decedent must be dismissed.
10We review the district court’s legal interpretation of Rule 25 de novo and factual findings
for clear error. Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467, 469 (2d Cir. 1998).
13
...
A motion to substitute, together with a notice of hearing, must
be served on the parties as provided in Rule 5 and on
nonparties as provided in Rule 4. A statement noting death must
be served in the same manner. 11
We have looked at Rule 25 before. In Unicorn Tales, Inc. v. Banerjee,
we held that a “party is given 90 days from the time when it learns from
compliance with Rule 25(a)(1) of the death of an opposing party” to move
for substitution, and that the clock starts running for the served party
regardless of whether the notice identifies the decedent’s legal
representative or successor. 12 We rejected the notion that a notice of death
cannot be filed until after a representative for the decedent’s estate has been
appointed, as well as the argument that a failure to identify the decedent’s
legal representative places an unfair burden on the opposing party to
identify and locate the representative. 13 True, we did not reach the precise
11 Fed. R. Civ. P. 25(a)(1), (3) (emphases added).
12 138 F.3d at 470.
13 Id. (declining to follow Rende v. Kay, 415 F.2d 983, 986 (D.C. Cir. 1969)).
14
question at issue in this case — whether the notice of death has to be served
on the deceased’s legal representative to trigger the 90-day substitution
period for parties who have been properly served. But it necessarily follows
from Unicorn Tales that if a statement of death need not even identify the
representative — and indeed, that a representative need not even exist at the
time of service — for the 90-day clock to start running for the served party,
then it certainly is not required that the statement be served on that
representative.
Kotler argues that other courts of appeals have held that Rule 25(a)
requires service of the statement of death on both the parties of record and
the decedent’s nonparty representative to trigger the 90-day substitution
period as to anyone. But a majority of these cases from our sister circuits
feature a deceased plaintiff’s legal representative who, having never
received service of a notice of death, attempts to revive the deceased
15
plaintiff’s dismissed lawsuit. 14 A recurring theme of those cases is the
perceived need to “alert[] the nonparty to the consequences of death for a
pending suit, signaling the need for action to preserve the claim if so
desired.” 15 We have no occasion to opine on the validity of those cases,
where the non-party later seeking substitution did not, in fact, receive
service under Rule 25(a). They do not feature the scenario we consider here:
a party who actually received notice (properly served under Rule 25(a)) and
sat on his hands while the 90-day window lapsed. Recall that, in Unicorn
Tales, we held that a “party is given 90 days from the time when it learns from
14 See Sampson v. ASC Indus., 780 F.3d 679, 682-83 (5th Cir. 2015) (deceased plaintiff’s
personal representative attempting to revive case because she did not receive personal
service of the statement of death); Atkins v. City of Chicago, 547 F.3d 869, 873 (7th Cir. 2008)
(same); Barlow v. Ground, 39 F.3d 231, 233-34 (9th Cir. 1994) (same); Grandbouche v. Lovell,
913 F.2d 835, 837 (10th Cir. 1990) (same); Fariss v. Lynchburg Foundry, 769 F.2d 958, 962 (4th
Cir. 1985) (same). But see Bass v. Attardi, 868 F.2d 45, 50 n.12 (3d Cir. 1989) (statement of
death must be served on defendant decedents’ successors before 90-day window is
triggered).
15 Farris, 769 F.2d at 962; see also Barlow, 39 F.3d at 233; Atkins, 547 F.3d at 874.
16
compliance with Rule 25(a)(1) of the death of an opposing party to take
appropriate action.” 16
To the extent that some courts have held more broadly that a
statement of death must be served not only on all relevant parties but also
on a decedent’s nonparty successor or representative to trigger the 90-day
substitution period even for the served parties, we cannot agree. This
interpretation of the Rule finds its roots in the D.C. Circuit’s 1969 decision
in Rende v. Kay. 17 There, defense counsel moved for dismissal of a deceased
defendant before a legal representative was appointed for the estate. 18 The
court rejected counsel’s motion as a “tactical maneuver,” held that a
statement noting death should identify the estate’s representative, and
reasoned that it was unfair to “place on plaintiff the burden, where no
conventional representative was appointed for the estate in probate court,
16 138 F.3d at 470 (emphasis added).
17 415 F.2d 983.
18 Id. at 984.
17
of instituting machinery in order to produce some representative of the
estate ad litem.” 19 Rende therefore held that a statement of death must, at a
minimum, identify the successor or representative of the estate, who may
then be substituted for the decedent. 20 In what is arguably dicta, the Third
Circuit has gone even farther, suggesting that a statement of a defendant’s
death must not only identify the deceased’s legal representative, but also be
served on that representative. 21
The first problem with Kotler’s reliance on the Rende line of cases is
that their interpretation of Rule 25 is fundamentally inconsistent with our
holding in Unicorn Tales. In fact, we respectfully rejected Rende’s holding in
19 Id. at 986.
20Id. The Ninth Circuit recently adopted this holding. See Gilmore v. Lockard, 936 F.3d
857, 867 (9th Cir. 2019) (“[W]e require, at a minimum, identification of [a decedent]’s
successor or personal representative.”).
21See Bass, 868 F.2d at 50 n.12 (describing statement of death as “deficient” because it “was
not served on the decedents’ successors or representatives”).
18
our decision then, and other courts have since returned the favor. 22 But even
if we were writing on a clean slate, we see nothing in the language of Rule
25 that imposes a service or identification requirement beyond the
requirement that “the statement of death be served on the involved
parties.” 23 The Rule merely says that a statement noting death “must be
served on the parties as provided in Rule 5 and on nonparties as provided
in Rule 4,” and that a motion for substitution of the decedent must be made
“within 90 days after service of a statement noting the death.” 24 We read
this language simply as establishing the acceptable mode of service on
nonparties, which then triggers the commencement of the 90-day clock with
respect to the served entity. As we explained in Unicorn Tales, the purpose
of Rule 25 is “to prevent a situation in which a case is dismissed because a
22See Unicorn Tales, 138 F.3d at 470; see also Gilmore, 936 F.3d at 866 (describing Rende as
“better reasoned”).
23 Unicorn Tales, 138 F.3d at 470.
24 Fed. R. Civ. P. 25(a)(1), (3).
19
party never learned of the death of an opposing party.”25 The AAG served
Kotler with a statement noting the death of Superintendent Donelli on
August 21, 2013. Kotler was therefore well aware of Superintendent
Donelli’s death and had 90 days to move for substitution, regardless of
whether anyone else was served with the same notice. Indeed, Kotler’s
alternative reading of Rule 25(a)(1) — that the 90-day clock does not start
running as to anyone until every party and the decedent’s representative or
successor have been served — could lead to strange results. For example, if
the notice of a defendant’s death were properly served on the decedent’s
representative and all but one of, say, ten co-defendants (with service
having been completed but technically defective as to the remaining co-
defendant), Kotler’s proposed rule would have us conclude that the 90-day
window never opened for anyone, even those who had been properly
served.
25 138 F.3d at 470.
20
To the extent Kotler complains that he was unable to identify
Superintendent Donelli’s legal representative within 90 days, we explained
in Unicorn Tales that the solution lies in Rule 6(b) rather than Rule 25. 26 Rule
6(b) allows a litigant to seek permission to enlarge the time in which “an act
may or must be done,” and allows the court to extend a litigant’s time for
good cause. 27 That means that Kotler could have asked the district court for
more time under Rule 6(b) to file his Rule 25 motion for substitution. After
receiving an extension, he could have moved for limited discovery to
identify the Donelli estate’s executor or asked the court for assistance. Yet
Kotler made none of these motions in the district court, and we therefore
deem them waived. 28 Only after the 90-day window expired and the
26 See id.27 Fed. R. Civ. P. 6(b). The court may extend time (A) “with or without motion or notice
if the court acts, or if a request is made, before the original time or its extension expires”;
or (B) “on motion made after the time has expired if the party failed to act because of
excusable neglect.” Id.28See Unicorn Tales, 138 F.3d at 470 (citing United States v. Margiotti, 85 F.3d 100, 104 (2d
Cir. 1996)).
21
magistrate judge recommended Superintendent Donelli’s dismissal did
Kotler raise any objections to the statement or ask for help identifying the
estate’s executor. He missed the deadline; it is too late to ask for an
extension now.
In a last-ditch effort to save his case against Superintendent Donelli,
Kotler argues that the court should have sua sponte granted him an extension
of time because he was pro se when he received the statement of death. This
Court has long accorded pro se litigants “special solicitude” to protect them
from “inadvertent forfeiture of important rights because of their lack of legal
training.” 29 But solicitude for pro se litigants does not require us to excuse
failure to comply with understandable procedural rules and mandatory
deadlines. 30 Kotler never requested more time, and the district court was
not required to mind deadlines for him.
29Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 475 (2d Cir. 2006) (quoting Traguth v.
Zuch, 710 F.2d 90, 95 (2d Cir. 1983), and Ruotolo v. I.R.S., 28 F.3d 6, 8 (2d Cir. 1994)).
See Caidor v. Onondaga Cnty., 517 F.3d 601, 605 (2d Cir. 2008) (holding that pro se litigants
30
must comply with procedural rules).
22
In short, we hold that where, as here, a plaintiff is properly served a
statement of death for a defendant, the 90-day clock begins running under
Rule 25(a)(1) for the plaintiff to file a motion to substitute the decedent’s
successor or representative. Because Kotler did not file a timely motion to
substitute, we affirm the district court’s dismissal of Superintendent
Donelli.
B. The district court gave Kotler a fair trial on his retaliation
claim.
Kotler asks for a new retaliation trial under Rule 59, complaining of
the district court’s conduct in front of the jury and in answering a jury
question. 31 We hold that the district court gave Kotler a fair trial.
First, we consider the district court’s conduct in front of the jury.
Kotler challenges several court colloquies and rulings, contending that the
court made prejudicial comments, asked questions that might have helped
31 “We review a district court’s denial of a Rule 59 motion for a new trial for abuse of
discretion.” Ali v. Kipp, 891 F.3d 59, 64 (2d Cir. 2018).
23
resolve inconsistencies in a witness’s testimony, and unfairly interrupted
and restricted Kotler’s examination of a key witness. We review
evidentiary rulings for abuse of discretion. 32 It is a district court’s duty to
ask questions that “clarify and fully develop the relevant facts for the jury’s
elucidation,” but the court should not convey to the jury its own “view
about the merits of a party’s claim.” 33 “A court must strive for that
atmosphere of perfect impartiality which is so much to be desired in a
judicial proceeding and must be especially cautious and circumspect in
language and conduct during a jury trial.” 34 Yet the question is “not
whether the trial judge’s conduct left something to be desired, but rather,
32 Arlio v. Lively, 474 F.3d 46, 51 (2d Cir. 2007); see also United States v. Quattrone, 441 F.3d
153, 183 (2d Cir. 2006) (“The trial-management authority entrusted to district courts
includes ‘the discretion to place reasonable limits on the presentation of evidence.’”
(citations omitted)).
33 Care Travel Co. v. Pan Am. World Airways, Inc., 944 F.2d 983, 992 (2d Cir. 1991); Berkovich
v. Hicks, 922 F.2d 1018, 1025 (2d Cir. 1991).
34Manganiello v. City of New York, 612 F.3d 149, 169 (2d Cir. 2010) (internal quotation
marks, citations, and ellipsis omitted).
24
in light of the record as a whole, whether the judge’s behavior was so
prejudicial that it denied a party a fair, as opposed to a perfect, trial.” 35
Here, the court’s comments, questions, and evidentiary rulings did
not deny Kotler a fair trial. To be sure, the court asked witnesses questions,
limited Kotler’s questioning of a witness, and told Kotler to hurry up
numerous times. When placed in context of the entire record, the court’s
questions were attempts to clarify and organize information for the jury.
Its rulings were attempts to manage the courtroom and prevent repetitive
advocacy. And its nudges and comments were attempts to move the case
along efficiently. The court did not communicate its thoughts on the case
to the jury, act as advocate for the defendants, or otherwise prejudice
Kotler. In fact, the court expressly instructed the jury not to draw any
inferences from the court’s rulings and comments:
It is important for you to realize . . . that my rulings on
evidentiary matters have nothing to do with the ultimate merits
of the case and are not to be considered as points scored for one
side or the other.
35 Id. (internal quotation marks, citations, and alteration omitted).
25
In addition, you must not infer from anything I have said
during this trial that I hold any views for or against either
Plaintiff or Defendants. In any event, any opinion I might have
is irrelevant. You are the judges of the facts.
J. App’x at 220. We see no grounds for reversal based on the district court’s
behavior during trial.
Next, we turn to the court’s response to a jury question. After retiring
to deliberate, the jury submitted a written question to the court: “Is an
inmate allowed to ask why they are being detained?” J. App’x at 1431. The
district court made the note a court exhibit, read the question out loud to
the parties in open court, proposed an answer, asked whether its answer
was correct, and asked whether sending the answer in writing was
agreeable. Hearing no objections, the court responded, “Yes, an inmate
may ask why he/she is being detained.” 36 J. App’x at 1432. Kotler contends
36 We do not find error in the procedure adopted by the district court for handling the
jury’s inquiries. See United States v. Collins, 665 F.3d 454, 460 (2d Cir. 2012) (describing the
process for answering jury questions). Although the better course is for trial judges to
gain the affirmative consent of both parties to its proposed answer and then answer jury
questions in open court, “allowing an opportunity to the jury to correct the inquiry or to
26
that the court did not give him a meaningful opportunity to object, and that
the court’s answer was incorrect and injected facts that were outside the
trial record. We review for fundamental error — that is, an error in the jury
instructions that is “so serious and flagarant that it goes to the very integrity
of the trial” 37 — because Kotler had an opportunity to object to the court’s
proposed instruction and failed to do so. 38 Although the court’s
supplemental charge conference was undoubtedly brief, Kotler was
present and on the record when the court raised the jury’s question and
proposed an answer. Indeed, Kotler had just responded to another
proposed supplemental instruction. 39
elaborate upon it,” id. (citation omitted), the parties did not object to the court’s decision
to respond to these questions in writing.
37 Anderson Grp., LLC v. City of Saratoga Springs, 805 F.3d 34, 49 (2d Cir. 2015).
38 When “a party . . . fails to object to a jury instruction at trial” any challenge to that
instruction is forfeited unless “the alleged errors are fundamental.” SCS Comms., Inc. v.
Herrick Co., 360 F.3d 329, 343 (2d Cir. 2004) (internal quotation marks and citations
omitted).
39Kotler contends that he objected to the courtroom deputy after the district judge left the
bench. But a party must lodge an objection “on the record.” Fed. R. Civ. P. 51(c)(1)
27
Here, we detect no fundamental error warranting vacatur. First,
Kotler’s complaint is essentially that the court’s answer lacked nuance and
should have also informed the jury of a New York prison regulation
requiring inmates to “obey all orders of Department personnel promptly
and without argument.” 40 But as we have said before, “we will not upset a
court’s judgment” when the instructions were “at most incomplete.” 41
Moreover, even assuming the court’s instruction was incorrect or
materially incomplete, any error did not undermine the integrity of the trial
process. 42 Kotler presented his case over three days, telling the story of his
role on the grievance committee, describing pushback he received from
(explaining that a party who objects to an instruction “must do so on the record, stating
distinctly the matter objected to and the grounds for objection”). Kotler failed to do so,
either before the judge recessed court or after he retook the bench.
40 See N.Y. Comp. Codes R. & Regs. tit. 7, § 270.2(B)(7)(i).
41 Densberger v. United Techs. Corp., 297 F.3d 66, 73 (2d Cir. 2002).
42See Shade v. Hous. Auth. of City of New Haven, 251 F.3d 307, 313 (2d Cir. 2001) (defining
fundamental error) (citing Modave v. Long Island Jewish Med. Ctr., 501 F.2d 1065, 1072 (2d
Cir. 1974)).
28
certain prison administrators, and highlighting possible inconsistencies in
the defendants’ testimony. Viewing the trial record and jury “instructions
as a whole,” 43 we find it unlikely that the court’s answer to this question
affected the very integrity of the trial. Kotler received a fair trial on his
retaliation claims, and the court’s supplemental jury instruction did not
constitute fundamental error.
C. Kotler did not abandon his due process claim.
Finally, we consider Kotler’s due process claim. The district court’s
decision to dismiss Kotler’s due process claim as abandoned was premised
on the determination that it had previously granted summary judgment on
the claim, that Kotler had not raised the claim in his appellate papers, and
that this Court’s prior orders focused solely on Kotler’s retaliation claim. 44
43SCS Comms., 360 F.3d at 343 (quoting Medforms, Inc. v. Healthcare Mgmt. Solutions, Inc.,
290 F.3d 98, 115 (2d Cir. 2002)).
44 As discussed above, the court explained the basis for its decision on the record at the
final pretrial conference on November 28, 2016, and in its written decision on Kotler’s
motion for judgment as a matter of law or, in the alternative, for a new trial. See Kotler v.
Jubert, 2017 WL 2210267, at *6.
29
We disagree. Because the district court’s rejection of the due process claim
was predicated entirely on its rejection of the retaliation claim; and because
this Court subsequently vacated the court’s judgments in their entirety
without distinguishing among different claims, we conclude that Kotler’s
due process claim — like his retaliation claim — was revived after his earlier
appeals.
In the usual course, it is the court of appeals — not the district court
— that decides questions of appellate abandonment. We have not
previously decided what standard of review applies to a district court’s
determination that a party abandoned a claim on appeal. A district court
must, however, conduct proceedings on remand in a way that conforms to
our mandate, 45 “look[ing] to both the specific dictates of the remand order
as well as the broader spirit of the mandate” to determine what issues
45See Havlish v. 650 Fifth Ave. Co., 934 F.3d 174, 181-82 (2d Cir. 2019) (describing the
mandate rule).
30
remain open. 46 We review de novo a district court’s compliance with our
mandate. 47
We hold that the district court erred when it dismissed Kotler’s due
process claim as abandoned. While Kotler’s first appellate brief focused on
his retaliation claim — an understandable move in light of the district
court’s fundamental finding of no retaliation — he nonetheless described
his claims as “interrelated,” and, even more specifically, argued that his due
process claims “flowed from” the alleged retaliation. J. App’x at 1501, 1504.
More to the point, our decision in Kotler I unambiguously vacated the entire
district court judgment. 48 It did not vacate in part (as, for example, we do
today) on specified counts, or otherwise differentiate among the various
46Burrell v. United States, 467 F.3d 160, 165 (2d Cir. 2006) (quoting United States v. Ben Zvi,
242 F.3d 89, 95 (2d Cir. 2001)) (internal quotation marks omitted).
47 Puricelli v. Argentina, 797 F.3d 213, 218 (2d Cir. 2015).
48 382 F. App’x at 58.
31
claims that Kotler raised. Nothing in our opinion suggested that any portion
of the district court’s judgment remained undisturbed. 49
That our decision in Kotler I extended to all of Kotler’s claims is
reinforced by the fact that the district court had rejected the due process
claim on the theory that it depended on the retaliation claim. 50 The district
court had explained that Kotler’s due process claim was “defeated by
defendants’ uncontradicted evidence that the discipline was not retaliatory
and by plaintiff’s failure to adduce any evidence of a conspiracy, a ‘set-up’,
bias, retaliation, or other wrongdoing by any defendant.” J. App’x at 1591.
49It may very well be that we could have concluded in Kotler I that Kotler had abandoned
his due process claim by insufficiently arguing that claim in his opening brief.
Nonetheless, nothing in our decision indicates that we reached that conclusion. Our
abandonment principles are “prudential, not jurisdictional,” and we have discretion to
consider abandoned arguments to avoid a manifest injustice. Sniado v. Bank Austria AG,
378 F.3d 210, 213 (2d Cir. 2004). And in any event, we have previously held that a plaintiff
does not abandon a claim by failing to raise it in his opening brief when that claim is
“necessarily dependent” on the appealed issues, “and w[as] treated as such by the
[d]istrict [c]ourt.” Litwin v. Blackstone Grp., L.P., 634 F.3d 706, 708 n.1 (2d Cir. 2011).
50Our orders must be read to address all issues “decided ‘either expressly or by necessary
implication.’” Doe v. N.Y.C. Dep’t of Soc. Servs., 709 F.2d 782, 788 (2d Cir. 1983) (quoting
Munro v. Post, 102 F.2d 686, 688 (2d Cir. 1939)).
32
We, by contrast, agreed with Kotler that there was “a genuine issue of fact
as to whether one or more of the defendants retaliated against Kotler for his
protected activities.” 51 Although our brief analysis discussed only the
retaliation issue, our conclusion necessarily undermined the district court’s
basis for rejecting the due process claim as well. Taking a holistic view of
Kotler’s first appeal — a reference to an interrelated due process claim in his
opening brief, the district court’s retaliation-dependent decision, and our
unqualified remand order — Kotler’s due process claim remained live. 52
The defendants contend that the district court’s dismissal of Kotler’s
due process claim, even if improper, was harmless. We agree — but only
up to a point. The district court’s erroneous dismissal of Kotler’s due
process claim did not render Kotler’s retaliation trial unfair. Kotler claims
51 Kotler I, 382 F. App’x at 58.
52 Nothing in Kotler’s second appeal, Kotler II, disturbs this conclusion. In Kotler II, this
Court found that the disciplinary determination that the weapon belonged to Kotler did
not collaterally estop him from proving that the prison officials planted the weapon. 528
F. App’x at 12-14. Again, our decision did not address Kotler’s due process claim because
the defendants’ collateral estoppel challenge was directed at Kotler’s retaliation claims —
not his due process claim.
33
that evidence he would have sought to admit on his due process claim —
larger portions of the transcript of his disciplinary hearing and a line of
questions for Deputy Superintendent Jubert — would have given the jury a
fuller picture of his retaliation claims. But Kotler has not argued that the
district court erred in excluding this evidence with respect to his retaliation
case; he merely argues that he was forced to restructure his trial strategy. If
there had been additional evidence admissible only for the limited purpose
of proving his due process claim, the district court would have been obliged
to instruct the jury not to consider it with respect to his retaliation claim.
Kotler’s argument therefore boils down to a request for spillover prejudice
— and no litigant is entitled to that. Accordingly, a new trial on his
retaliation claims is unnecessary.
We do not agree, however, that the district court’s complete
elimination of one of Kotler’s claims for relief was entirely harmless. To be
sure, Kotler’s due process claim — by his own admission — was largely
based on the same basic set of facts as his retaliation claims. This substantial
34
overlap explains the district court’s original dismissal of Kotler’s due
process claim after it resolved the retaliation question. But the overlap was
not complete. “Due process requires that a prison disciplinary hearing be
impartial.” 53 It is certainly possible that a jury could have found that
Kotler’s hearing was not impartial — on the theory that the hearing officer
was biased, provided unfair process, or otherwise — without finding a
broader retaliatory conspiracy. 54 We of course intimate no view on the
merits of Kotler’s claim; that is a job for a jury.
Because the district court erred in concluding that Kotler abandoned
his due process claim on appeal, and because that error was not harmless
53 Russell v. Selsky, 35 F.3d 55, 59 (2d Cir. 1994).
54 In his complaint, Kotler alleges that Deputy Superintendent Jubert violated his due
process rights by “conspiring with the other Bare Hill defendants and serving as a biased
hearing officer by dishonestly suppressing evidence of [his] innocence . . . and evidence
in support of [his] defense that he was retaliated against for his grievance-related
activities.” J. App’x 48 at ¶ 90. The jury verdict of no retaliation makes his due process
claim considerably narrower but does not necessarily rule it out.
35
with respect to that claim, we remand for trial on his due process claim
against Deputy Superintendent Jubert.
III. Conclusion
In sum, we hold as follows:
1. When a plaintiff is served a statement of the defendant’s death in
compliance with Rule 25(a) of the Federal Rules of Civil Procedure, his 90-
day window for moving to substitute the defendant begins to run,
regardless of whether the statement of death was also served on the
decedent’s successor or representative. The district court did not err in
dismissing Superintendent Donelli as a defendant because Kotler failed to
move for substitution, or an extension of time to do so, within 90 days after
he was served the notice of death.
2. The district court gave Kotler a fair trial on his retaliation claims.
The district court’s comments, questions, and rulings in front of the jury
were not prejudicial, and we find no fundamental error in the court’s
36
response to a jury question. We therefore affirm the district court’s
judgment on the retaliation claim.
3. Kotler did not abandon his due process claim. In Kotler I, this Court
vacated without qualification the district court’s judgment, which included
summary judgment for the defense on both the retaliation and due process
claims. Because our vacatur applied to the entirety of the judgment, where
the claims were interrelated, and where Kotler had argued that the due
process claim flowed from the retaliation claim, we conclude that our
decision revived all of Kotler’s claims. Moreover, that error was not
harmless as to the due process claim itself. We therefore vacate the district
court’s dismissal of the due process claim against Deputy Superintendent
Jubert and remand solely for trial on that claim.
Accordingly, we AFFIRM IN PART and VACATE IN PART the
district court’s judgment of December 5, 2016, and its order of May 18, 2017,
and REMAND solely for trial on Kotler’s due process claim.
37