Kotler v. Jubert, No. 16-4191 (2d Cir. 2021)
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Former inmate Kotler sued prison officials, claiming that they planted a weapon in his housing area in retaliation for his activities on an inmate grievance committee. He also alleged violations of his due process rights in a disciplinary hearing over the incident. After a second remand, the district court dismissed Kotler’s due process claim as abandoned during prior appeals, and dismissed the alleged linchpin defendant, now-deceased Superintendent Donelli, finding that no one timely moved for substitution of Donelli’s successor after his death. A jury returned a defense verdict on Kotler’s retaliation claims.
The Second Circuit affirmed in part and vacated in part. The dismissal of Donelli was proper; under FRCP 25(a), 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. The district court gave Kotler a fair trial on his retaliation claim. The court asked witnesses questions, limited Kotler’s questioning of a witness, and told Kotler to hurry up numerous times but in light of the entire record, the court’s questions were attempts to clarify and organize information. A supplemental jury instruction did not constitute fundamental error. Kotler did not abandon his due process claim during his previous appeals, so the district court erred in dismissing it.
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