15-1786-cv

United States Court of Appeals

for the

Second Circuit

DANIEL MCGOWAN,

Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, TRACY RIVERS, Residential

Reentry Manager,

Defendants-Appellees,

CORE SERVICE GROUP, INC., COMMUNITY FIRST SERVICES,

INC., GRACE TERRY, Facility Director, MASSIEL SURIEL, Case
Manager, UNKNOWN UNITED STATES MARSHALS,

Defendants.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF NEW YORK

PLAINTIFF-APPELLANTS PETITION FOR

PANEL REHEARING OR REHEARING EN BANC

ALEXANDER A. REINERT, ESQ.

55 Fifth Avenue, Suite 1005
New York, New York 10003
(212) 790-0403

DAVID B. RANKIN, ESQ.

RANKIN & TAYLOR PLLC
11 Park Place, Suite 914
New York, New York 10007
(212) 226-4507

Attorneys for Plaintiff-Appellant

TABLE OF CONTENTS

TABLE OF AUTHORITIES .................................................................................... ii

INTRODUCTION .....................................................................................................1
I. The Panels Qualified Immunity Decision Conflicts with the Supreme Court,
this Court, and its Sister Circuits ............................................................................1
II. The Panels FTCA Holding Conflicts with the Supreme Court and this
Courts Decisions ..................................................................................................12
CONCLUSION ........................................................................................................15

TABLE OF AUTHORITIES

CASES
Abu-Jamal v. Price, 154 F.3d 128 (3d Cir. 1998) .....................................................9
Antonelli v. Sheahan, 81 F.3d 1422 (7th Cir. 1996) ..................................................8
Ashcroft v. al-Kidd, 131 S. Ct. 2074 (2011) ..............................................................4
Back v. Hastings On Hudson Union Free Sch. Dist., 365 F.3d 107
(2d Cir. 2004) ..........................................................................................................4
Beard v. Banks, 548 U.S. 521 (2006) ........................................................................9
Boles v. Schnarrs, 893 F.2d 1334 (6th Cir. 1990) .....................................................3
Carlson v. Green, 446 U.S. 14 (1980) .....................................................................11
Crawford-El v. Britton, 93 F.3d 813 (D.C. Cir. 1996) ..............................................6
Davis v. Norris, 249 F.3d 800 (8th Cir. 2001) ...........................................................8
Debrew v. Auman, 354 F. App'x 639 (3d Cir. 2009) .................................................9
Farmer v. Perrill, 288 F.3d 1254 (10th Cir. 2002)....................................................8
Golodner v. Berliner, 770 F.3d 196 (2d Cir. 2014) ...................................................5
Gomez v. Toledo, 446 U.S. 635 (1980) ..................................................................1, 3
Hammer v. Ashcroft, 42 F. App'x 861 (7th Cir. 2002) ..............................................9
Hope v. Pelzer, 536 U.S. 730 (2002) .........................................................................4
Ingham v. E. Air Lines, Inc., 373 F.2d 227 (2d Cir. 1967) ......................................15
Jordan v. Pugh, 504 F. Supp. 2d 1109 (D. Colo. 2007) ............................................2
LeBaron v. Spencer, 527 F. App'x 25 (1st Cir. 2013) ...............................................8
Liranzo v. United States, 690 F.3d 78 (2d Cir. 2012) ................................... 1, 13, 14
McCarthy v. Madigan, 503 U.S. 140 (1992) ...........................................................11
McKenna v. Wright, 386 F.3d 432 (2d Cir. 2006) .................................................3, 8
McRedmond v. Sutton Place Rest. & Bar, Inc., 945 N.Y.S.2d 35 (App. Div., 1st
Dept 2012) ...........................................................................................................14
Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989) ........................................1, 5

ii

Murphy v. Missouri Dep't of Corr., 372 F.3d 979 (8th Cir. 2004) ............................8
Nagle v. Marron, 663 F.3d 100 (2d Cir. 2011)..........................................................5
Palmer v. Richards, 364 F.3d 60 (2d Cir. 2004) .......................................................4
Pell v. Procunier, 417 U.S. 817 (1974) .....................................................................5
Procunier v. Martinez, 416 U.S. 396 (1974) ...........................................................10
Riker v. Lemmon, 798 F.3d 546 (7th Cir. 2015) ........................................................7
Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006) ...............................................1, 7
Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004) ..........................................................3
Spence v. Nelson, 533 F. App'x 368 (5th Cir. 2013) .................................................8
State Emp. Bargaining Agent Coal. v. Rowland, 718 F.3d 126 (2d Cir. 2013) ........4
Stefanoff v. Hays Cty., Tex., 154 F.3d 523 (5th Cir. 1998) ........................................6
Tellier v. Fields, 280 F.3d 69 (2d Cir. 2000) .................................................... 1, 3, 4
Thornburgh v. Abbott, 490 U.S. 401 (1989) ................................................... 1, 9, 10
Triestman v. Fed. Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006) ................... 1, 15
Turner v. Safley, 482 U.S. 78 (1987) ................................................................ 6, 7, 9
United States v. Muniz, 374 U.S. 150 (1963) ..................................................... 1, 13
United States v. Olson, 546 U.S. 43 (2005) .............................................................13
Vincent v. Yelich, 718 F.3d 157 (2d Cir. 2013) .........................................................3
White v. Albany Med. Ctr. Hosp., 542 N.Y.S.2d 834 (App. Div.,
3d Dept 1989) ......................................................................................................14
Willey v. Kirkpatrick, 801 F.3d 51 (2d Cir. 2015) ...................................................13
Zegarelli-Pecheone v. New Hartford Cent. Sch. Dist., 17 N.Y.S.3d 212 (App. Div.,
4th Dept 2015) .....................................................................................................14
STATUTES
Prison Litigation Reform Act of 1995, Pub. L. 104134, 110 Stat. 132171 .........12

iii

INTRODUCTION
The panels decision, resolving an issue the District Court declined to
address, found that qualified immunity protects Defendant Tracy Rivers here
because Plaintiff did not have a clearly established right to be free of retaliation for
exercising his First Amendment right to publish a blog post. The panel also found
that Plaintiffs Federal Tort Claims Act (FTCA) claims were properly dismissed
for lack of a private analogue. The panels analysis and holdings conflict with
Thornburgh v. Abbott, 490 U.S. 401 (1989); Gomez v. Toledo, 446 U.S. 635
(1980); United States v. Muniz, 374 U.S. 150 (1963); Liranzo v. United States, 690
F.3d 78 (2d Cir. 2012); Triestman v. Fed. Bureau of Prisons, 470 F.3d 471 (2d Cir.
2006); Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006); Tellier v. Fields, 280
F.3d 69 (2d Cir. 2000); and Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989),
and creates numerous conflicts with sister circuits. The panel also overlooked and
misapprehended several points of law.
I.

The Panels Qualified Immunity Decision Conflicts with the Supreme

Court, this Court, and its Sister Circuits
In April 2013, Defendant Rivers transferred Plaintiff from a halfway house

to solitary confinement in the Metropolitan Detention Center because he published

a blog post on Huffington Post which was critical of the treatment he had received
while held in federal custody. Despite the fact that Defendant based her discipline
on a nonexistent regulation that had been rescinded precisely because of First
1

Amendment concerns, the panel held that qualified immunity was available
because it was not clearly established that Mr. McGowan had a First Amendment
right to publish his article. Op. 10.
The panel recognized that Mr. McGowan had a First Amendment right to
file a lawsuit or a grievance, but the panel hypothesized that publishing a bylined
article may implicate different penological interests. Op. 11 (emphasis added).
As support, the panel did not cite to any controlling case law, nor to any facts
adduced by the Defendant Rivers, nor even to any arguments made by the
Government in this case. Rather, the panel rested on arguments made by the
Government in a different case, in a different district, that were ultimately rejected
when a federal court struck down as unconstitutional the very regulation that
Defendant purported to rely on five years after it had been rescinded. Id. (citing
Jordan v. Pugh, 504 F. Supp. 2d 1109, 1120-23 (D. Colo. 2007)). Indeed, the
District Court in Jordan rejected the Governments argument precisely because the
BOP could provide no evidence to support their contentions. Jordan, 504 F. Supp.
2d at 1120-23. In other words, the panel granted qualified immunity based on an
argument that was never raised by Defendants here, that the panel did not even
claim to agree with, and that actually had been rejected for lack of evidence by the
only court to consider it, many years before the actions at issue here.

The panels decision is undermined by numerous errors, each of which

independently provides a basis for panel or en banc rehearing. The panels first
error was to decide the issue of qualified immunity with a thumb on the scale in
Defendants favor. This is impermissible because qualified immunity is an
affirmative defense. Gomez, 446 U.S. at 640; Vincent v. Yelich, 718 F.3d 157, 166
(2d Cir. 2013). Therefore, qualified immunity can only be granted at the motion to
dismiss stage where entitlement to the defense can be established based [solely]
on facts appearing on the face of the complaint. McKenna v. Wright, 386 F.3d
432, 436 (2d Cir. 2006). On the face of the complaint, Mr. McGowan was placed
in solitary confinement for engaging in protected expression, based on a
nonexistent regulation. As this Court has remarked in the Bivens context, it will
not confer immunity on any official who glaringly disregards the very regulations
that he or she is entrusted to discharge dutifully and in good faith. Tellier, 280
F.3d at 86. This is because a failure to abide by established procedures . . . can
evince an improper objective and constitute evidence that the official was not
acting pursuant to a proper penological objective. Shakur v. Selsky, 391 F.3d 106,
116 (2d Cir. 2004); see also Boles v. Schnarrs, 893 F.2d 1334 (6th Cir. 1990)
(summary judgment inappropriate where prison official failed to follow
administrative rule). But the panel here did exactly what it disclaimed in Tellier

and Shakur, without even addressing the fact that the regulation Defendant Rivers
relied on had been found unconstitutional and rescinded.
Even on the pure legal question of what law was clearly established, the
panel failed to adhere to its prior holdings that the defendant bears the burden to
show the nonexistence of a clearly established right and his entitlement to qualified
immunity. Palmer v. Richards, 364 F.3d 60, 67 (2d Cir. 2004); Accord Tellier,
280 F.3d at 87. Instead, the panel placed the burden on Plaintiff, concluding
contrary to this Courts jurisprudence that in light of the absence of authority
clearly establishing the claimed right, we are constrained to hold that Rivers is
entitled to qualified immunity. Op. 11-12. In any event, as discussed below,
Plaintiffs right to publish a blog post is supported by clearly established law.
The panels second error was to define the relevant right at its narrowest: the
right to publish under a byline. In so doing, the panel ignored guidance from the
Supreme Court and this Courts past decisions. Ashcroft v. al-Kidd, 131 S. Ct.
2074, 2083 (2011) (We do not require a case directly on point.); Hope v. Pelzer,
536 U.S. 730, 739 (2002); Back v. Hastings On Hudson Union Free Sch. Dist., 365
F.3d 107, 129 (2d Cir. 2004); see also State Emp. Bargaining Agent Coal. v.
Rowland, 718 F.3d 126, 132 (2d Cir. 2013), cert. denied, 134 S. Ct. 1002 (2014)
(denying qualified immunity even though the Court had never articulated a
standard for determining whether, and under what circumstances the particular

right would be violated); Nagle v. Marron, 663 F.3d 100, 115-16 (2d Cir. 2011)
(denying qualified immunity even though case law was not precisely on point).
In Golodner v. Berliner, 770 F.3d 196 (2d Cir. 2014), involving First
Amendment retaliation, this Court noted that the right must be defined neither too
narrowly based on the exact factual scenario presented nor too broadly. Id. at
206. When one steps back to consider the different kinds of speech by prisoners
that have been given First Amendment protection by the Supreme Court, this
Court, and other circuits, there is no credible argument that a reasonable official
could maintain that publishing a blog post is meaningfully different. As the panel
acknowledged, it has been clearly established for some time that prisoners are
entitled to file inward-looking grievances and outward-looking lawsuits that are
critical of BOP operations. Moreover, for more than 40 years it has been
established that although a prisoner does not have a right to face-to-face media
communication, prisoners must have other means of communicating with the
media. Pell v. Procunier, 417 U.S. 817, 82628 (1974).
There is, indeed no meaningful difference between expression recognized as
protected by this Court in the past and the expression engaged in by Plaintiff. In
Meriwether v. Coughlin, 879 F.2d 1037 (2d Cir. 1989), this Court held that
prisoners who wrote letters to a local newspaper, various officials, and public
interest groups were engaged in protected First Amendment expression and could

not be subject to retaliation for their expression. Id. at 1046; see also Stefanoff v.
Hays Cty., Tex., 154 F.3d 523, 527 (5th Cir. 1998) (finding it clearly established
that prisons have First Amendment right to communicate with press); Crawford-El
v. Britton, 93 F.3d 813, 825-26 (D.C. Cir. 1996), vacated on other grounds, 523
U.S. 574 (1998) (holding that it was clearly established that prisoner could not be
subject to retaliation for communicating to press).
Thus, for qualified immunity to be available here, a reasonable official
would have to believe that it was permissible to prohibit Mr. McGowan from
publishing an article under a byline, despite the fact that prisoners retain a right to
communicate with the public about prison complaints, including by
communicating directly to the media. One would have to accept that a prisoner has
a First Amendment right to be quoted extensively in a Huffington Post article
without fear of retaliation from prison officials, but not write a post under a byline
for the same website. When one adds in the facts that Mr. McGowan was in a
halfway house at the time of his authorship, and that he was punished based on a
regulation that had been rescinded because of its First Amendment difficulties, the
proposition that Ms. Rivers is entitled to qualified immunity cannot be maintained.
The panel compounded each of its prior errors by resolving qualified
immunity based on arguments that had never been made, let alone substantiated in
fact, by Defendant Rivers. The panel, citing Turner v. Safley, 482 U.S. 78 (1987),

found qualified immunity was appropriate because publishing a bylined article

may implicate different penological interests than filing a grievance or a lawsuit.
But Defendant made no argument on appeal or below that Plaintiff was disciplined
for legitimate penological interests that distinguished publishing under a byline
from other kinds of expression that have been recognized as protected by this
Court and the Supreme Court. Ms. Rivers has never relied on Turner for her
qualified immunity defense, either in this Court or below.
More importantly, qualified immunity cannot be granted based on the kind
of speculation in which the panel engaged, even at the summary judgment stage,
when the burden on a plaintiff is greater than at the motion to dismiss stage.
Salahuddin v. Goord, 467 F.3d 263 (2d Cir. 2006), made this clear when this Court
denied qualified immunity because defendants have not pointed to anything in the
record to show that they relied on legitimate penological justifications. Id. at 275.
As this Court said, [n]either the district court nor this court can manufacture facts
out of thin air. Id. But this is precisely what the panel did in order to conclude
that Mr. McGowans right was not clearly established.
Like Salahuddin, numerous courts have recognized that Turner deference is
not appropriate unless prison officials provide some evidence establishing the
existence of a legitimate penological interests, even in the context of qualified
immunity. See Riker v. Lemmon, 798 F.3d 546, 558 (7th Cir. 2015) (Turner does

not allow us to accept at face value the Department's unsubstantiated

contentions.); Farmer v. Perrill, 288 F.3d 1254, 1261 (10th Cir. 2002) (qualified
immunity denied on Bivens claim where defendant had not met burden on Turner
analysis); Accord LeBaron v. Spencer, 527 F. App'x 25, 32 (1st Cir. 2013); Spence
v. Nelson, 533 F. App'x 368, 372 (5th Cir. 2013); Davis v. Norris, 249 F.3d 800,
801 (8th Cir. 2001). As the Eighth Circuit has noted, Turner deference is
appropriate only if prison officials present specific evidence. Murphy v.
Missouri Dep't of Corr., 372 F.3d 979, 986 (8th Cir. 2004).
Even more problematically, the panel resolved this issue at the motion to
dismiss stage. Antonelli v. Sheahan, 81 F.3d 1422, 1432 (7th Cir. 1996) (noting
that on a motion to dismiss, we cannot determine whether prison would be able
to justify its regulation). Indeed, where there is no allegation in the complaint
suggesting the existence of a legitimate penological interest, it is inappropriate to
assume the existence of such an interest at the motion to dismiss stage. McKenna
386 F.3d at 436.
Indeed, the panels decision conflicts with extremely similar cases from the
Third and Seventh Circuits. In 1998, the Third Circuit found that a prison could
not prevent a prisoner from publishing articles and books because
[t]here is no evidence . . . that [the writing] . . . has strained prison
resources, contributed to unrest among the inmate population, or enhanced
[the prisoners] stature . . . , resulting in danger to himself or others.

Abu-Jamal v. Price, 154 F.3d 128, 134 (3d Cir. 1998); see also Debrew v. Auman,
354 F. App'x 639, 642 (3d Cir. 2009) (finding it premature to dismiss complaint
on qualified immunity grounds in case involving prisoner who wrote essays and
maintained a web-page). And in 2002, the Seventh Circuit found that a district
court erred in dismissing a federal prisoners claim that the prison was interfering
with his ability to communicate with members of the media, because the dismissal
was based on documents that were not found in the plaintiffs complaint. Hammer
v. Ashcroft, 42 F. App'x 861, 863-64 (7th Cir. 2002). Here, the panel did not have
any representation from Defendant Rivers as to what penological interest justified
restricting Plaintiffs ability to publish a blog post.1
The panels fourth error, assuming that it was even correct to consider
hypothetical justifications for Defendants conduct, was to assume that the right at
issue here is governed by Turners logic. That assumption is erroneous, because
the Supreme Court long ago distinguished between outgoing communication by
prisoners and communication within prison.2 Restrictions on outgoing

The panels discussion suggests that it viewed Turners test as similar to the minimal
rational basis scrutiny adopted in some procedural due process and equal protection cases, where
the Court is free to hypothesize about potential reasons for governmental conduct. But the two
standards are not the same, despite their similar verbiage, as the Supreme Court has made clear.
Beard v. Banks, 548 U.S. 521, 535 (2006) (plurality op.) (Turner requires prison authorities to
show more than a formalistic logical connection between a regulation and a penological
objective.); Thornburgh, 490 U.S. at 414 (agreeing that Turner standard is not toothless)
(internal quotation marks omitted).
2
Because Defendant Rivers did not claim to rely on Turner-based justifications, Plaintiff
devoted only a footnote to this issue. (See Br. for Appellant at 31 n.11).

correspondence such as Mr. McGowans blog post must meet a more rigorous
standard than Turner, because they must further a substantial governmental interest
and must be no greater than is necessary or essential to the protection of the
particular governmental interest involved. Thornburgh v. Abbott, 490 U.S. 401,
408 (1989) (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974)); id. at 413
(explaining that the Martinez standard applies to outgoing correspondence).
Regulations on incoming material are subject to the less rigorous Turner standard.
Id. at 409. Thus, even were it correct for the panel to have considered whether
Defendant Riverss conduct was justified at this stage, the panel applied the wrong,
and more defendant-friendly, standard. Applying Martinez here, Defendant cannot
demonstrate that placement in solitary confinement is necessary for the
protection of a penological interest, when the BOP decided almost a decade ago to
abandon any regulation of prisoners publishing under a byline.
As this Court has noted on many occasions, in general this Court does not
pass on questions that were not addressed by the District Court below. And
although the Court has the power to address those arguments, it is fundamentally
unfair to go an additional step and resolve a case based on arguments that were
never made or briefed at any level, as the panel did here. Moreover, doing so
heightens the risk that, in a complex area of law like qualified immunity, the court
will come to a resolution that is in direct conflict with its own precedent, that of its

10

sister circuits, and the Supreme Court. That is precisely what happened here, and a
panel rehearing or rehearing en banc is the appropriate vehicle for remedying the
panels error.
The panel addressed qualified immunity in lieu of the issue that the district
court decided and that the parties focused on: whether Bivens provides a remedy to
prisoners for violations of their First Amendment speech rights. The proper
recourse is to address the Bivens issue and either remand to the district court to
address qualified immunity or reject it for the reasons detailed in this petition. Not
addressing the Bivens issue is not only inconsistent with this Courts general
practice, but it leaves more than 5,000 federal prisoners within the Second Circuit
with potentially no protection against First Amendment retaliation. It also leaves a
seriously flawed district court decision in place, for as Plaintiff demonstrated
before this Court, the District Courts Bivens decision is in direct conflict with
controlling authority. This is easily demonstrated by just two examples. First, the
District Courts holding that prison is a special factor counseling hesitation in
making Bivens relief available was explicitly rejected by the Supreme Court more
than 30 years ago. Carlson v. Green, 446 U.S. 14, 19 (1980). And the District
Courts holding that prison grievances are alternative remedies that should
substitute for a Bivens remedy also was rejected by the Supreme Court more than
20 years ago. McCarthy v. Madigan, 503 U.S. 140, 151 (1992), superseded in part

11

on other grounds by statute, Prison Litigation Reform Act of 1995, Pub. L. 104
134, 110 Stat. 132171.
The panel may have been under the misimpression that Plaintiffs claims
were insubstantial because he was only subjected to a short stint in solitary
confinement. But Mr. McGowan was fortunate, because at the time he was
disciplined, he was represented by the Center for Constitutional Rights in different
litigation and thus was able to secure a prompt release from solitary. Other
prisoners will not be so lucky and will suffer by the panel leaving intact the District
Courts erroneous Bivens holding. Indeed, shortly after this Court issued its
opinion in McGowan, government officials in a Bivens First Amendment
retaliation case asked a District Court to dismiss the suit arguing that this Courts
decision raised questions about whether a prisoner even could bring such a claim.
(See Letter dated June 10, 2016, Docket No. 183, Hill v. Laird, No. 06 Civ. 126
(JS) (AYS) (E.D.N.Y.)). This Court has the opportunity to decide this fully briefed
issue, and failing to do so leaves thousands of prisoners vulnerable to abuse.
II.

The Panels FTCA Holding Conflicts with the Supreme Court and
this Courts Decisions
Panel rehearing or rehearing en banc is also appropriate to review the

panels disposition of Plaintiffs FTCA claims. The panel found that Plaintiffs
false imprisonment claim was properly dismissed for lack of a private analogue
because only the government can establish facilities to detain other persons.
12

Op. 16. Yet this precise argument was rejected in United States v. Olson, 546 U.S.
43, 46 (2005), United States v. Muniz, 374 U.S. 150 (1963), and Liranzo v. United
States, 690 F.3d 78 (2d Cir. 2012). In all of those cases, the courts recognized that
the FTCA contemplates liability even for uniquely governmental activities. See,
e.g. Liranzo, 690 F.3d at 94 (To say that the challenged action is one that only the
federal government does in fact perform does not necessarily mean that no private
analogue exists.). Indeed, in Muniz, the Supreme Court held that the FTCA
applied to breach of a duty of care owed to federal prisoners by BOP officials,
conclusively undermining the panels holding. 374 U.S. at 164-65.
Moreover, Liranzo noted that Muniz looked to the liability of jailors and the
states that employ them to find a private analogue, 690 F.3d at 88 n.10, and that
for the purposes of contexts like federal prison and federal immigration, finding a
private analogue in actions against the State is perfectly acceptable, id. at 95-97.
That analogy already has been provided by Willey v. Kirkpatrick, 801 F.3d 51 (2d
Cir. 2015), in which this Court stated that, where a prisoner alleged that he had
been wrongfully placed in solitary confinement as retaliation, he alleged state-law
claims for both malicious prosecution and false imprisonment. Id. at 70. Thus,
reading Willey, Liranzo, and Muniz together, Plaintiff has stated a FTCA claim for
false imprisonment under state law here. The panel never discussed Willey or the
critical portions of Liranzo, although they were cited by Plaintiff.

13

Even if it were necessary to look to liability of private (and not State or

local) actors to establish liability for private analogue purposes, Liranzo teaches us
that, where the liability standards for private individuals and state or local officials
are similar, the private law analogue can be satisfied with either. Liranzo, 690
F.3d at 95-97. Here, private actors and state and local officials can be liable under
false imprisonment under similar standards. See, e.g., Zegarelli-Pecheone v. New
Hartford Cent. Sch. Dist., 17 N.Y.S.3d 212, 212-13 (App. Div., 4th Dept 2015)
(finding false imprisonment claim adequately shown where student was confined
in administrators office and nurses office); McRedmond v. Sutton Place Rest. &
Bar, Inc., 945 N.Y.S.2d 35, 39 (App. Div., 1st Dept 2012) (denying summary
judgment on false imprisonment claim where restaurant supervisor confined
employee in a room). In fact, private citizens are more vulnerable to false
imprisonment liability as compared to public officials. See, e.g., White v. Albany
Med. Ctr. Hosp., 542 N.Y.S.2d 834, 835 (App. Div., 3d Dept 1989). The panel
mistakenly conflated the fact that prisons in New York are not run by private
individuals with the legal conclusion that a wrongful excessive confinement action
could not, under New York Law, be brought against a private individual who
causes someone to be wrongfully placed in solitary confinement.
The panel affirmed the dismissal of Plaintiffs negligence FTCA claims for
similarly faulty reasons. According to the panel, because violation of internal rules

14

or regulations may only be considered evidence of negligence, Plaintiffs claim

must be dismissed. This logic leaves much to be desired. After all, on a motion to
dismiss, if a plaintiff produces evidence of negligence, his claim should survive.
But more troubling, the panel does not address any of this Courts own contrary
authority in which it clearly permitted negligence claims to go forward under the
FTCA where the basis for the Plaintiffs negligence claim was that a federal
employee failed to follow federal regulations, including, most remarkably given
the lack of analysis by the panel, in the prison context. In Triestman v. Fed.
Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006), for example, this Court
specifically concluded that an allegation that a federal prison guard had failed to
follow internal regulations was sufficient to state a claim for negligence. Id. at 476
(holding that allegations were sufficient under Rule 12(b)(6)). And in Ingham v. E.
Air Lines, Inc., 373 F.2d 227, 236 (2d Cir. 1967), this Court held that a violation of
regulations was enough to state a claim for FTCA negligence in the air travel
regulation context. The panel did not discuss either case although each establishes
the viability of Plaintiffs FTCA negligence claim.
CONCLUSION
For the foregoing reasons, Plaintiff respectfully requests that this Court grant
his petition for panel rehearing or, in the alternative, for rehearing en banc.

15

Respectfully submitted,
s:/Alexander A. Reinert
Alexander A. Reinert
c/o Benjamin N. Cardozo School of Law
55 Fifth Avenue, Room 1005
New York, New York 10003
(212) 790-0403
areinert@yu.edu
David B. Rankin
Rankin & Taylor PLLC
11 Park Place, Suite 914
New York, New York 10007,
(212) 226-4507
david@drmtlaw.com
Counsel for Plaintiff-Appellant

16

CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(c)(2), I hereby certify that this petition
complies with the requirements of Fed. R. App. P. 32(a). The petition has been
prepared in 14-point Times New Roman, a proportionally spaced font, with
margins of 1 inch on all sides.

s:/Alexander A. Reinert
ALEXANDER A. REINERT

CERTIFICATE OF SERVICE
I hereby certify that on July 19, 2016, I electronically filed the foregoing
Plaintiff-Appellants Petition for Rehearing or Rehearing En Banc with the Clerk
of the Court for the United States Court of Appeals for the Second Circuit
by using the appellate CM/ECF system.
The participants in the case are registered CM/ECF users and service will
be accomplished by the appellate CM/ECF system.

s:/Alexander A. Reinert
ALEXANDER A. REINERT