In early October 2015, my colleague Chris Schmidt and I participated in an hour-long Preview of the Supreme Court’s current 2015 Term that was sponsored by Chicago-Kent’s American Constitution Society.
Professor Schmidt provided an overview of the previous Term as well as brief comments on several of the cases pending in the current Term.
I spoke at some length about one particular case pending in the current Term, the Fisher affirmative action case now before the Court for the second time.
I am pleased to post a video of this Preview, and hope you find it of interest. Special thanks to Chicago-Kent’s Audio-Visual staff and its Public Relations staff, as well as to ACS.
You can find related posts by searching on my blog for “affirmative action” and “Fisher.”
Here it is:
This Part IV in the All My Posts Series to 10-12-15 is by far the shortest.
Part I, dealing with Section 1983; Part II, dealing with Constitutional Law; and Part III, dealing with the First Amendment, were also posted today.
The topics within this post are self-explanatory.
PART IV: EDUCATION
This is Part III of the All My Posts series to 10-12-15. Part I, dealing with section 1983 and Part II, dealing with Constitutional Law, were also posted today.
Please search within this post for any cases, topics and the like that you are interested in.
PART III: FIRST AMENDMENT
This is Part II of the All My Posts Series to 10-12-15. Part I, also posted today, deals with Section 1983.
Please search within the post for any cases, topics and the like that you are interested in.
PART II: CONSTITUTIONAL LAW
TO MY READERS
It has been a while since I reorganized all of my posts (including videos and podcasts) in order to provide greater and more efficient accessibility for readers. There are now more than 150 posts.
I consider this reorganization important, and I hope it is also useful to you, because my posts are not intended to be of short-term utility. Instead, they are intended to serve the continuing educational needs of lawyers, law students, academics and the public at large.
I encourage you to search within each post for case names, topics and the like, that you are interested in.
I thank all of you for your ongoing support of this blog. I also invite you to follow me on Twitter @NahmodLaw.
Sheldon Nahmod (firstname.lastname@example.org).
What follows is the first of four posts (three are rather long) comprising all of my posts (with links) divided into the following four parts and four corresponding posts: PART I: SECTION 1983; PART II: CONSTITUTIONAL LAW; PART III: FIRST AMENDMENT; PART IV: EDUCATION
PART I: SECTION 1983
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.
I invite you to follow me on Twitter @NahmodLaw.
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.