A Third Circuit Statute of Limitations Case: Accrual, the Continuing Violation Doctrine and Equitable Tolling
In a much-read post of October 27, 2011, entitled A Section 1983 Primer (5): Statutes of Limitation, I blogged about statutes of limitations in section 1983 cases. There I briefly discussed the complicated issues of (1) choosing the right state statute of limitation, (2) accrual of section 1983 claims and (3) when section 1983 claims are tolled.
Subsequently, in my post of June 17, 2013, entitled A Section 1983 Primer (10): Statutes of Limitation and Accrual After Heck v. Humphrey, I discussed the special accrual rule of Heck v. Humphrey, 512 U.S. 477 (1994), that applies where the plaintiff has a prior conviction whose validity might be implicated by a successful section 1983 damages action.
Then, in my post of June 9, 2014, entitled A Section 1983 Primer (11): Statutes of Limitation and Continuing Violations, I discussed the continuing violation doctrine and quoted Judge Posner‘s useful statement of that doctrine.
This post addresses Montanez v. Secretary Pennsylvania Dept. of Corrections, 773 F.3d 472 (3rd Cir. 2014), amending and superseding, 763 F.3d 257 (3rd Cir. 2014), which has something for almost everyone on accrual, the continuing violation doctrine and equitable tolling.
The Montanez Case
In Montanez, the plaintiff inmates sued corrections officials under section 1983 alleging that the department of corrections violated procedural due process through the automatic deduction of funds from their inmate accounts to cover court-ordered restitution, fines and costs. Their arguments were that they should have been provided by the department with some notice of the policy and an opportunity to be heard prior to the first deduction and, also, that the current procedures were insufficient.
The Third Circuit affirmed the district court’s dismissal of the complaint of one of the inmates on the ground that it was time-barred under Pennsylvania’s two year limitations period. The inmate’s claim accrued when the defendants began deducting funds from his account on April 6, 2000 (which he knew about), but he only filed his lawsuit on November 29, 2004. At the very latest his claim accrued when he filed a grievance challenging the deductions on November 17, 2002.
The Third Circuit went on reject the inmate’s continuing violation doctrine argument because he was aware of the relevant injury shortly after it occurred. Furthermore, even though the defendants continued to make deductions thereafter until 2010, when the inmate’s debt was satisfied, their “decision to enforce the … policy against [plaintiff] and its first deduction from his prison account constituted a discrete and independently actionable act, which triggered [his] obligation to assert his rights.”
Finally, the Third Circuit rejected plaintiff’s equitable tolling/fraudulent concealment argument based on Pennsylvania law. There was no fraudulent concealment here but, even if there was, the allegedly fraudulent statements of the defendants were made in response to grievances he filed more than two years after his cause of action accrued. “[Plaintiff] simply delayed too long to take advantage of equitable tolling doctrines.”
1. Accrual: In Montanez, the Section 1983 claim accrued under the applicable federal law of accrual–the discovery rule– when the inmate first knew of the injury to him and who likely caused it, which was on April 6, 2000 or, at the latest, on November 17, 2002.
2. The Continuing Violation Doctrine: Even though the effects–the continuing deductions–of the defendants’ allegedly unconstitutional act lasted for approximately 10 years, that was not enough to constitute a continuing violation. The focus for this purpose was on the first discrete act, namely, the first deduction on April 6, 2000.
3. Equitable tolling/fraudulent concealment: It is important to understand that under applicable Supreme Court precedents, the forum state’s tolling law governs section 1983 claims. And that tolling law includes not only formal tolling law set out in the forum state’s statutes but also state tolling law that is not statutory, such as equitable tolling and/or fraudulent concealment.
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My very first post, on August 19, 2009, dealt with the implications for supervisory liability of Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009). This was followed by my post on October 16, 2009, setting out my view that Iqbal got it right on supervisory liability. Readers should consult these posts for relevant background.
This past year, I was preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed.; West Group), when I came across recent Second, Third, Fourth and Eighth Circuit court decisions dealing with supervisory liability.
Here they are for your reading pleasure.
Second Circuit: Raspardo v. Carlone
A Second Circuit police supervisory liability case involved, among other things, § 1983 sexually hostile work environment claims against a police supervisor for failing to supervise a subordinate who sexually harassed the plaintiffs, former and current female police officers. Ruling for the supervisor on these claims, the Second Circuit, after noting that its pre-Iqbal decisions used a gross negligence standard for supervisory liability, observed that it did not have to decide whether this was still correct because even under that standard the supervisor was not liable. “He neither created a hostile work environment through his own direct actions nor was grossly negligent in his supervision or investigation of subordinate officers who allegedly harassed the plaintiffs on the basis of sex.”
Indeed, as soon as the supervisor became aware of the subordinate’s improper remarks to one of the plaintiffs, he placed him on administrative leave, and then began a broader investigation, including informing the prosecutor’s office when he learned of the subordinate’s sexual misconduct involving another plaintiff. The supervisor subsequently recommended the subordinate’s termination. Thus, the supervisor did not violate the plaintiffs’ constitutional rights either directly or in his supervisory capacity. Raspardo v. Carlone, 770 F.3d 97 (2nd Cir. 2014).
Third Circuit: Barkes v. First Correctional Medical, Inc.
In a Third Circuit case involving a prison suicide, the court addressed whether and to what extent Iqbal affected the circuit’s precedent on supervisory liability in an Eighth Amendment setting. It noted that most courts had gravitated to the “center” such that the state of mind necessary for supervisory liability varies just as does the state of mind necessary for the underlying constitutional violation. The Third Circuit went on to determine that this was its position as well, at least in this case. Thus, in an Eighth Amendment setting, the state of mind necessary for supervisory liability is subjective deliberate indifference, just as it is for the Eighth Amendment violation itself. This was consistent with the circuit precedent in Eighth Amendment cases. Sample v. Diecks, 885 F.2d 1099 (3rd Cir. 1989).
However, the Third Circuit left open the supervisory liability question with regard to different constitutional violations. Barkes v. First Correctional Medical, Inc., 766 F.3d 307 (3rd Cir. 2014), cert granted sub nom Taylor v. Barkes and judgment reversed on qualified immunity grounds, 135 S. Ct. 2042 (2015)(per curiam).
Judge Hardiman dissented in the Third Circuit, arguing that after Iqbal more was now required for supervisory liability: personal involvement and identifying a specific supervisory practice or procedure. Neither was shown here by the plaintiffs. He also argued that the defendants were entitled to qualified immunity, as the Supreme Court per curiam ultimately ruled in this case.
Fourth Circuit: Wilkins v. Montgomery
In a decision involving a § 1983 supervisory liability claim against an assistant director at a state mental hospital that was brought by a mother whose son was murdered by another patient, the Fourth Circuit, without discussing Iqbal, simply applied the three-part test of Shaw v. Stroud, 13 F.3d 791 (4th Cir. 1994), and found that there was insufficient evidence of any of the three elements required for supervisory liability. Wilkins v. Montgomery, 751 F.3d 214 (4th Cir. 2014).
Eighth Circuit: Jackson v. Nixon
In Jackson v. Nixon, 747 F.3d 537 (8th Cir. 2014), the Eighth Circuit emphasized the personal involvement requirement where the director of the Missouri Department of Corrections and the warden and the director of substance abuse treatment program in a correctional center were sued under § 1983 for allegedly violating the First Amendment free exercise rights of the plaintiff atheist inmate by requiring him to participate in religious activities as part of his treatment.
As to the director of the department of corrections, state law gave him authority to make prison-wide policy decisions, including those concerning substance abuse treatment programs, which meant that his alleged failure to act constituted the requisite personal involvement.
As to the warden, general supervisory authority was insufficient. The plaintiff had to show the warden’s direct involvement in the formation, implementation or enforcement of the allegedly unconstitutional policy, which he had not yet done.
Finally, as to the director of the substance abuse treatment program, the plaintiff plausibly alleged her personal involvement when he claimed that she did not ameliorate the constitutional violation by allowing him to avoid the religious parts of the program.
Judge Smith dissented, 747 F.3d 537, 546, on the ground that the plaintiff did not allege a violation of his First Amendment free exercise rights in the first place.
Of these four cases, only the Third Circuit in Barkes expressly applied Iqbal‘s holding to the case before it. But even it hedged a bit when it stated that its decision was limited to the Eighth Amendment.
In contrast, the Second Circuit in Raspardo avoided taking a stand on Iqbal in ruling that even under its more lenient pre-Iqbal standard the plaintiff lost on her supervisory liability equal protection claim (which required purposeful discrimination).
The Fourth Circuit in Wilkins did not address Iqbal at all, but still found against the plaintiff.
Finally, the Eighth Circuit in Jackson ruled in a manner consistent with Iqbal (all the while emphasizing personal involvement) because several of the defendants apparently acted with the requisite purpose for a Free Exercise Clause violation.
Kinsgley v. Hendrickson: What Standard Governs Pretrial Detainee Due Process Excessive Force Claims?
The Supreme Court granted certiorari and then reversed the Seventh Circuit in Kingsley v. Hendrickson, 135 S. Ct. – (2015)(No. 14-6368), revg Kingsley v. Hendrickson, 744 F.3d 443 (7th Cir. 2014)(Judge Hamilton dissenting), a case involving the proper excessive force standard applicable to pretrial detainee claims brought under substantive due process. In this case, the plaintiff pretrial detainee alleged that the use of a taser against him constituted excessive force in violation of due process.
The Question Presented was “[w]hether the requirements of a 42 U.S.C. § 1983 excessive force claim brought by a plaintiff who was a pretrial detainee at the time of the incident are satisfied by a showing that the state actor deliberately used force against the pretrial detainee and the use of force was objectively unreasonable.”
The Court’s Opinion
In an opinion by Justice Breyer, the Court rejected the subjective inquiry used by the district court—that there must be “an actual intent to violate [the plaintiff’s] rights or reckless disregard for his rights”–and affirmed by the Seventh Circuit. Instead, the Court declared that the proper standard in such pretrial detainee substantive due process cases was one of objective reasonableness, the same standard required by the Fourth Amendment for police officers making arrests in Graham v. Connor, 490 U.S. 386 (1989). The Court did not accept the defendant correctional officers’ contention that because this was a prison setting, under Bell v. Wolfish, 441 U.S. 520 (1979), the plaintiff pretrial detainee was required to prove that he was “punished” by them, meaning that at the least the defendants must have been subjectively aware that their use of force was unreasonable.
The Court went on to explain why this objective reasonableness standard would not unduly burden corrections officers. For one thing, the use of force must be determined from the perspective of a reasonable corrections officer at the time. For another, the objective reasonableness standard was workable and consistent with the pattern jury instructions used in several Circuits. For a third, the standard adequately protected corrections officers who acted in good faith because jail circumstances, including security and order, must be taken into account in making the objective reasonableness determination. Finally, the availability of qualified immunity to corrections officers provided an additional margin for error. See Chapter 8 of NAHMOD, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. 2014)(West).
Justice Scalia, joined by Chief Justice Roberts and Justice Thomas, dissented, arguing that “punishment” was required under due process and that the infliction of objectively unreasonable force, standing alone, was not sufficient for this purpose. They also questioned whether a pretrial detainee had a liberty interest in freedom form objectively unreasonable force. Justice Alito also dissented, maintaining that certiorari was improvidently granted. In his view, the Court should first determine whether a pretrial detainee can bring a Fourth Amendment excessive force claim before reaching the substantive due process claim involved in Kingsley.
Kingsley is a sound decision. It finally puts to rest the split in the circuits regarding the proper excessive force standard for pretrial detainees, an issue that had been percolating in the circuits for some time.
In addition, so long as relevant security factors are plugged into the objective reasonableness inquiry, pretrial detainees are not being unduly advantaged to the detriment of the need to maintain security and order.
Perhaps most important, it would have been fundamentally unfair for pretrial detainees, who by definition have not been convicted of anything, to be governed by a subjective inquiry of the sort the governs excessive force claims brought under the Eighth Amendment by those already convicted. Kingsley property treats pretrial detainees as free citizens in this context.
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In Carroll v. Carman, 135 S. Ct. 348 (2014)(per curiam), revg, Carman v. Carroll, 749 F.3d 192 (3rd Cir. 2014), a police officer was sued under § 1983 and the Fourth Amendment for entering plaintiffs’ property in July 2009 by going into their backyard and onto their deck without a warrant. The police officer argued that his entry was lawful under the “knock and talk” exception to the warrant requirement because he stayed on that portion of plaintiffs’ property that the general public was allowed to go on.
The Third Circuit held that the officer violated the Fourth Amendment since he did not go first to the front door as required (so the Third Circuit read its own precedent as saying) by the “knock and talk” exception. It also ruled that the officer violated clearly established Fourth Amendment law.
Reversing, the Supreme Court held that the officer was entitled to qualified immunity because clearly settled law did not exist at the time. Even assuming that a single Third Circuit decision could suffice for this purpose, the decision that the Third Circuit cited did not stand for the proposition that the Third Circuit said it did.
The Court went on: “The Third Circuit’s decision is even more perplexing in comparison to the decisions of other federal and state courts, which have rejected the rule the Third Circuit adopted here.” However, the Court emphasized that it was not deciding the constitutional merits here but only qualified immunity.
What is interesting to me about this decision is the Court’s non-deferential approach to the Third Circuit’s understanding of its own precedent. The Court may also have signaled that it disagreed with the Third Circuit’s rule on the merits, although it said that it did not decide the constitutional merits.
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San Francisco v. Sheehan: New Supreme Court Qualified Immunity Decision Dealing with Shooting the Mentally Disturbed (ADA Issue Not Reached)
In its 2014 Term, the Supreme Court handed down a qualified immunity decision dealing with the shooting of a mentally disturbed woman. As has become the norm in recent qualified immunity cases before the Court, the police officers prevailed.
San Francisco v. Sheehan, 135 S. Ct. 1765 (2015), involved the near-fatal shooting of a mentally disturbed woman in a group home in August 2008. When the officers initially entered her room, she grabbed a kitchen knife and told them to leave, which they did. After conferring, they then re-entered her room by forcing open the door and blinding her with pepper spray. However, she continued to resist with her knife, so they shot her repeatedly.
Although the Supreme Court had granted certiorari to decide whether the Americans with Disabilities Act required the officers to “accommodate” the plaintiff’s disability, the Court did not address that question because it was not properly raised by San Francisco. Instead, reversing the Ninth Circuit, the Court ruled that the officers were protected by qualified immunity from § 1983 Fourth Amendment liability because there was no clearly established law prohibiting this conduct.
The Court rejected the Ninth Circuit’s contrary qualified immunity holding that its precedents would have placed “any reasonable, competent officer on notice that it is unreasonable to forcibly enter the home of an armed, mentally ill suspect who had been acting irrationally and had threatened anyone who entered when there was no objective need for immediate entry.”
But even assuming that was true, the Court continued, no precedent clearly established that there was not “an objective need for immediate entry” here. “[A]n officer could not know that reopening [plaintiff’s] door to prevent her from escaping or gathering more weapons would violate the Ninth Circuit’s test, even if all the disputed facts are viewed in respondent’s favor.”
The Supreme Court did not defer to the Ninth Circuit’s understanding of its own Fourth Amendment precedents as to the general rule in such cases.
Similarly, the Court did not defer to the Ninth Circuit’s application of its “objective need for immediate entry” criterion.
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Section 1983 Malicious Prosecution (VI): Third and Fourth Circuit Decisions with a Fabrication of Evidence Twist
I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13, 4-8-14 and 5-11-15 about section 1983 malicious prosecution cases in the circuits.
What follows are recent section 1983 malicious prosecution/fabrication of evidence decisions from the Third and Fourth Circuits that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
Halsey v. Pfeiffer (3rd Circuit)
In Halsey v. Pfeiffer, 750 F.3d 273 (3rd Cir. 2014), an important case that couples section 1983 fabrication of evidence and malicious prosecution claims. the plaintiff, wrongly imprisoned for murder for over 20 years, sued various law enforcement officers and others alleging (1) the fabrication of his oral confession that led to the prosecutor filing charges against him and (2) malicious prosecution and (3) coercing him into signing the fabricated confession which was crucial at his trial. Reversing the district court’s grant of summary judgment to the defendants, the Third Circuit explained:
First, we reaffirm what has been apparent for decades to all reasonable police officers: a police officer who fabricates evidence against a criminal defendant to obtain his conviction violates the defendant’s constitutional right to due process of law. Second, we reinstate[plaintiff’s] malicious prosecution claim, principally because the prosecutor instrumental in the initiation of the criminal case against [plaintiff] has acknowledged that the false confession the [defendants] claimed they obtained from [plaintiff] contributed to the prosecutor’s decision to charge [plaintiff], and for that reason we will not treat the decision to prosecute as an intervening act absolving [defendants] from liability. Moreover, without that false confession, there would not have been direct evidence linking [plaintiff] to the crimes so that the prosecutor would not have had cause to prosecute [plaintiff]. …
In the course of its discussion in Halsey, the Third Circuit commented that in Johnson v. Knorr, 477 F.3d 75 (3rd Cir. 2007), it had not addressed the question, which it now answered in the affirmative, whether a fabrication claim could give rise to a stand-alone due process cause of action. It also observed that in this case any Fourth Amendment seizure had long since ended: it was the fabricated evidence that led to the unfair trial, the wrongful conviction and plaintiff’s incarceration. Further, this was analytically different from a section 1983 malicious prosecution claim as to which probable cause is a defense. Finally, as to plaintiff’s section 1983 Fourth Amendment malicious prosecution claim, the Third Circuit determined that the prosecutor’s decision to prosecute was not an intervening act that severed the initiation of prosecution from the defendants. The district court erred in concluding that the prosecutor’s decision to prosecute was made without regard to the defendants’ alleged misconduct. The district court further erred in finding that there would have been probable cause even without plaintiff’s confession: there were genuine issues of material fact on this question.
Massey v. Ojaniit (4th Circuit)
The Fourth Circuit cited the Third Circuit’s decision in Halsey in Massey v. Ojaniit, 759 F.3d 343 (4th Cir. 2014), another case coupling section 1983 fabrication of evidence and malicious prosecution claims. In this case, the plaintiff, released after almost twelve years of imprisonment, sued city police officers alleging that they fabricated evidence against him at trial to obtain his conviction in violation of due process. Ruling against the plaintiff, the Fourth Circuit observed that fabrication of evidence standing alone was not enough: the plaintiff had to allege adequate facts to show that the loss of liberty–his conviction and subsequent incarceration–was caused by the fabrication. This requirement included both cause in fact and proximate cause. Here, however, the plaintiff’s conviction was not caused by the alleged fabrication because the prosecution focused at trial on positive in-court identifications. In addition, the conviction was not the foreseeable result of the alleged fabrication.
The plaintiff in Massey also alleged a Fourth Amendment malicious prosecution claim, focusing on the fabricated evidence’s role in bringing about plaintiff’s arrest and his prosecution. Plaintiff lost here as well because he did not allege sufficient facts to undermine the grand jury’s probable cause determination. In other words, he did not sufficiently allege materiality of the fabricated evidence: even removing the fabricated evidence, there was sufficient evidence for a finding of probable cause.
Both cases recognize the availability of stand-alone due process fabrication of evidence claims. But while the plaintiff in Halsey properly alleged that the fabricated evidence led to his unfair trial, conviction and incarceration, the plaintiff in Massey did not.
Both cases also have in common section 1983 Fourth Amendment malicious prosecution claims and the all-important inquiry into causation–cause in fact and proximate cause–as well as the requirement of absence of probable cause. The Halsey plaintiff was able to persuade the Third Circuit that the prosecutor’s decision to prosecute was not a superseding cause and that there was a triable issue regarding the absence of probable cause. In contrast, the Massey plaintiff ‘s allegations were insufficient to persuade the Fourth Circuit that the grand jury’s probable cause determination was not a cause in fact of his arrest and prosecution.
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I blogged on Sept. 11, 2009, about the basic elements of so-called section 1983 “malicious prosecution” claims. I then blogged on 9-8-11, 9-26-11, 8-7-13 and 4-8-14 about section 1983 malicious prosecution cases in the circuits.
What follows is an important recent Seventh Circuit decision dealing with such claims, a decision that I ran across in preparing the 2015 Update to my treatise, CIVIL RIGHTS AND CIVIL LIBERTIES LITIGATION: THE LAW OF SECTION 1983 (4th ed. West).
A subsequent post will address several other recent circuit court decisions dealing with section 1983 malicious prosecution claims. But this Seventh Circuit decision deserves its own post.
Llovet v. City of Chicago (7th Cir. 2014)
In Llovet v. City of Chicago, 761 F.3d 759 (7th Cir. 2014), a decision written by Judge Posner, the plaintiff, acquitted in state court of aggravated battery, then sued police officers and the City of Chicago alleging section 1983 malicious prosecution under both due process and the Fourth Amendment.
The Due Process Claim
Affirming the dismissal of plaintiff’s due process-based claim on the authority of Newsome v. McCabe, 319 F.3d 301 (7th Cir. 2003), the Seventh Circuit, refusing to overrule Newsome, reaffirmed that case’s holding that such a suit, insofar as it is based on due process, is available only where the forum state does not provide an adequate remedy. Here, Illinois provided such a remedy.
The Fourth Amendment Claim
The Seventh Circuit then went on to reject the plaintiff’s additional arguments, premised on a section 1983 Fourth Amendment malicious prosecution theory, that “the Fourth Amendment’s prohibition of seizures of persons without probable cause does not terminate when the person arrested becomes detained pursuant to legal process (normally an arraignment …); and further that a [Fourth Amendment] claim … for malicious prosecution ‘accrues upon the favorable termination of criminal proceedings’ and thus does not have to be filed within the statute of limitations for the unlawful arrest.”
According to the Seventh Circuit in Llovet, a seizure was necessary for a Fourth Amendment-based malicious prosecution claim (the possible existence of which Newsome did not deny). Here, the initial seizure was supported by probable cause because the plaintiff was already in jail on a misdemeanor charge and was unable to make bail. Also, there was no causal relation between the aggravated battery charge and the deprivation of plaintiff’s liberty in being arrested and jailed on the misdemeanor charge. Even if the plaintiff was in jail longer than he would have been had it not been for the defendants’ alleged framing of him for aggravated battery, the initial seizure was still supported by probable cause.
The Continuing Seizure Doctrine
The Seventh Circuit then rejected the continuing seizure doctrine in this case. For one thing, Heck v. Humphrey, 512 U.S. 477 (1994), and Wallace v. Kato, 549 U.S. 384 (2007), implied that the Fourth Amendment falls out of the picture when detention by arrest becomes detention by arraignment. For another, some of the other circuits did not accept the continuing seizure argument. The Seventh Circuit also expressed concern that the continuing seizure doctrine would unduly enlarge the scope of the Fourth Amendment. Finally, the court rejected the plaintiff’s alternative argument that there was a second seizure in this case when the filing of the aggravated battery charge caused the plaintiff to be held in jail longer than he would otherwise have been for the misdemeanor charge. “There is a difference between seizing a person and not letting him go.” In the latter situation, the due process clause becomes applicable.
See also Welton v. Anderson, 770 F.3d 670 (7th Cir. 2014), reaffirming that the continuing seizure doctrine is not the law in the Seventh Circuit.
Llovet certainly covers a lot of section 1983 malicious prosecution ground: due process, the Fourth Amendment and, especially, continuing seizures.
For those interested in the subject, Llovet is worth reading in its entirety.