A Section 1983 Primer (11): Statutes of Limitation and Continuing Violations
In a much-read post of October 27, 2011, entitled A Section 1983 Primer (5): Statutes of Limitations, 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 limitations, (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 Limitations 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.
This post addresses accrual and the continuing violation doctrine.
The Continuing Violation Doctrine
Under the continuing violation doctrine, certain plaintiffs can overcome a statute of limitations defense by arguing that the allegedly unconstitutional acts were parts of a continuing violation amounting to a single wrong occurring within the limitations period. See United Air Lines, Inc. v. Evans, 431 U.S. 553 (1977), Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002), and Ledbetter v. Goodyear Tire & Rubber Co., Inc., 127 S. Ct. 2162 (2007).
The continuing violation doctrine is not magic: it is not sufficient under this doctrine that the effects of a defendant’s constitutional violation have continued during the limitations period. Rather, it is ordinarily necessary that the defendant have acted unconstitutionally during the limitations period.
Judge Posner Explains the Continuing Violation Doctrine
Consider the following helpful discussion of the continuing violation doctrine by the Seventh Circuit‘s Judge Posner in Limestone Dev. v. Village of Lemont, 520 F.3d 797, 801 (7th Cir. 2008)(citations omitted), a RICO case:
“Like too many legal doctrines, the ‘continuing violation’ doctrine is misnamed. Suppose that year after year, for ten years, your employer pays you less than the minimum wage. That is a continuing violation. But it does not entitle you to wait until year 15 (assuming for the sake of illustration that the statute of limitations is five years) and then sue not only for the wages you should have received in year 10 but also for the wages you should have received in years 1 through 9. The statute of limitations begins to run upon injury (or, as is standardly [sic] the case with federal claims, upon discovery of the injury) and is not tolled by subsequent injuries.
“The office of the misnamed doctrine is to allow suit to be delayed until a series of wrongful acts blossoms into an injury on which suit can be brought. It is thus a doctrine not about a continuing, but about a cumulative, violation. A typical case is workplace harassment on grounds of sex. The first instance of a coworker’s offensive words or actions may be too trivial to count as an actionable harassment, but if they continue they may eventually reach that level and then the entire series is actionable. If each harassing act had to be considered in isolation, there would be no claim even when by virtue of the cumulative effect of the acts it was plain that the plaintiff had suffered actionable harassment.”
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