Kotler v. Jubert, 986 F.3d 147

Kerry Kotler, an elected inmate grievance representative at Bare Hill CF, was found with a shank on Nov. 1, 2003; he alleged prison officials planted it in retaliation for his grievance work.
Superintendent John Donelli learned the disciplinary outcome would remove Kotler from the committee; Donelli appointed Deputy Supt. Lee Jubert as hearing officer, who found Kotler guilty and suspended him from the committee.
Kotler sued under 42 U.S.C. § 1983 asserting First Amendment retaliation and Fourteenth Amendment due process claims; the case has been remanded twice by the Second Circuit.
Before trial Superintendent Donelli died; the Assistant Attorney General served Kotler a statement of death (Aug. 21, 2013) stating Donelli would be dismissed unless a substitution motion was made within 90 days; Kotler did not move to substitute.
At final pretrial the district court deemed Kotler’s due process claim abandoned and tried only retaliation; a jury returned a verdict for defendants. Kotler appealed dismissal of Donelli, trial fairness, and the due process-abandonment ruling.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether service of a statement of death must also be made on the decedent’s successor/representative to trigger Rule 25(a)’s 90-day substitution deadline	Kotler: 90-day clock did not run because the statement did not identify or serve Donelli’s estate representative	Defendants: service on Kotler alone properly triggered the 90-day period	Court: 90-day clock begins when a party is properly served the statement of death; Donelli’s dismissal affirmed
Whether Kotler was denied a fair trial (court comments, evidentiary rulings, and answer to a jury question) and thus entitled to a new trial	Kotler: judge’s interruptions/comments and the court’s written answer to a jury question were prejudicial and deprived him of a fair trial	Defendants: judge’s conduct and supplemental answer were proper trial management; no fundamental error	Court: no abuse of discretion or fundamental error; denial of new trial affirmed
Whether Kotler abandoned his due process claim on prior appeal so dismissal as abandoned was proper	Kotler: due process claim was interrelated with retaliation claims and was revived by the Circuit’s vacatur of the district court’s judgment	Defendants: Kotler failed to press the due process claim on appeal, so it was abandoned	Court: district court erred — Kotler did not abandon the due process claim; remand for trial on that claim

Unicorn Tales, Inc. v. Banerjee, 138 F.3d 467 (2d Cir. 1998) (90-day substitution clock under Rule 25 runs from service of statement of death on a party)
Rende v. Kay, 415 F.2d 983 (D.C. Cir. 1969) (statement of death should identify estate representative; criticized by Unicorn Tales)
Gilmore v. Lockard, 936 F.3d 857 (9th Cir. 2019) (adopts a requirement to identify successor/representative in statement of death)
Triestman v. Federal Bureau of Prisons, 470 F.3d 471 (2d Cir. 2006) (pro se litigants receive special solicitude but must comply with procedural rules)
Russell v. Selsky, 35 F.3d 55 (2d Cir. 1994) (prison disciplinary hearings must be impartial)